FCC Net Neutrality Order Expected To Be Published in Federal Register Monday

Assuming the order is published Monday, any petition for review filed by April 16 and properly delivered to the FCC general counsel by close of business that day would be eligible for the lottery to decide which federal circuit will hear the case, said Andrew Schwartzman, senior counselor at Georgetown University's Institute for Public Representation. Parties not worried about the lottery have 60 days to file an appeal, he said. The order’s publication sets a firm date for when it will take effect -- 60 days after publication, which would be June 12, the agency said. The deadline for petitions for reconsideration to the agency is May 13, and for petitions for review, June 12, a spokesman said.

Free Press and the Media Mobilizing Project, which filed appeals in the U.S. Court of Appeals for the 1st and 3rd circuits in 2011 of the 2010 open Internet order, told us Friday they don't intend to appeal. Public Knowledge, which didn't file an appeal last time, didn't comment. The American Cable Association, CTIA, NCTA, USTelecom, AT&T and Comcast didn't comment Friday about their plans.

Free Press Policy Director Matt Wood said he doesn’t expect appeals to be filed in six circuits as was the case in 2011 after the FCC's last net neutrality order, which was eventually overturned by the U.S. Court of Appeals for the D.C. Circuit. “I don’t think people will try all that hard to move it out of" the D.C. Circuit, he said. That court has thrown out two net neutrality orders, Wood noted. But net neutrality supporters can point to the fact that this year’s order dealt with the main concern raised by the court by reclassifying broadband as a common carrier service, he said. The court had objected to the agency imposing common carriage restrictions on broadband when ISPs were not classified as common carriers, Wood said.

“Federal Register​ publication of the Title II order will be a punctuation mark announcing the successive phases of the policy wars,” said former Commissioner Robert McDowell, now at Wiley Rein. “The next battles will be fought in the courts and Congress. In the meantime, the commission will be under further political pressure to expand its reach beyond the Byzantine text of the order through enforcement proceedings and further rulemakings."

Doug Brake, telecom policy analyst at the Information Technology and Innovation Foundation, said with publication the “momentum” on net neutrality will move from Capitol Hill to the courts. “The possibility for a bipartisan solution from the Hill remains, but I worry that door will start closing fast once the lawsuits start to proceed,” Brake said. “A sharply worded stay may well cause those Republicans skeptical of any net neutrality rules to walk. Anyone interested in a real, lasting solution instead of scoring political points should be in favor of a legislative grant of authority over the commission's order.”

The 150,000-word order is not the agency’s “best work,” said Larry Downes, project director at the Georgetown Center for Business and Public Policy. “Caught between an order that was based on the ‘roadmap’ provided by the Verizon court, rumored to be largely done, and the surprise demand from the White House for a full Title II solution, the agency must have worked non-stop to get the new order written, and it shows.” The FCC must be fully aware of the legal risk faced by the order, Downes said.

“We're just waiting to see who files and what circuit court this lands in,” said Michael Calabrese, director of New America Foundation’s Wireless Future Project. The public interest groups will then need to decide how to intervene, he said. “I anticipate that we’ll be part of a group of intervenors” but it’s hard to say too much at this early date, he said.

Wood expects industry groups to seek a stay of the order “only because we expect the ISPs to try to use every trick in the book.” Stays are “very, very hard to get,” Fletcher Heald attorney Harry Cole said. A petitioner needs to show it can ultimately prevail in the appeal and that the order would cause “irreparable harm -- which is a very tough standard,” he said.

"The Federal Register publication just marks the beginning of the judicial phase of what likely will be a long fight over many aspects of the FCC's order,” Randolph May, president of the Free State Foundation, said. “I hope the end result is another judicial setback for the agency, and I think that is the most likely result."