Challenges to FCC net neutrality decision will wait until next year

by Steve Blum • , , ,

The Federal Communications Commission isn’t celebrating Christmas the way it did Thanksgiving this year. Instead of leaving us with a massive document dump before heading home for the holiday, the FCC went into the long weekend without releasing the final text of its decision to strip broadband service of common carrier status and, in the process, scrap network neutrality rules.

So for now, the decision isn’t in effect yet and any formal opposition is on hold. The white house’s office of management and budget has to give its blessing. It could happen later in the process, or the FCC might wait until it comes before posting the document on its website. Once it’s published, opponents can ask the FCC to delay the effective date of the decision until court challenges are finished. But that just ticks a box on the legal to-do list. The FCC has already voted to move ahead and it’s not going to change its mind.

The game really begins when the decision is published in the Federal Register next year. That’s when the courthouse door opens and appeals can be filed. Harold Feld has a complete rundown on how that process works in an excellent blog post written about the previous FCC net neutrality decision in 2015. The short version is that there’s a 10 day period when opponents can file in the appellate court of their choice, in the hopes of finding judges friendly to their cause. But the probable outcome is that they’ll all be bounced back to the appeals court in Washington, D.C., which typically hears these kinds of cases. Since anything an appeals court decides can be bumped up to the supreme court, final judicial action is years away. The 2015 decision is still sitting in the supreme court’s in box.

There’s a possibility that a court will put the FCC’s decision on hold – issue a stay – while the appeal proceeds, but that didn’t happen with the 2015 decision. The safe bet is that it won’t happen this time either, and the decision will take effect next year, as intended.