Net Neutrality Remand Order Seen Ending Up in Court, Facing Recon Petition

Any challenge would likely involve the same parties who challenged the 2017 net neutrality rules rollback. Stakeholders said a recon petition is likely if Democrats take the White House, and thus commission control. If the GOP retains control, there's no point to a recon petition because it would be denied, said Tim Lay of Spiegel & McDiarmid, who represented a petitioner in the Mozilla challenge to the 2017 order.

Regardless of who wins the White House, the FCC could face a legal challenge to the remand order, said Lay. That appeal could always be withdrawn if a Democratic FCC reverses the net neutrality order, and there's no reason not to try again in court under a Republican FCC, he said. The U.S. Court of Appeals for the D.C. Circuit, which 12 months ago remanded part of the net neutrality order to the FCC (see 1910010013), might be receptive to arguments the commission didn't do anything about those issues, he said. If it's still unclear who the president is as the deadline for filing the recon petition -- 30 days after an approved remand order is published in the Federal Register -- gets close, one could be filed just to be safe since it could always be withdrawn, he said. A Democratic-controlled FCC's grant of a recon petition on the remand order would likely be challenged in court by industry groups, he said.

If there's a court fight over the remand order's approval, it likely would be back before D.C. Circuit, net neutrality proceeding participants said. Normally an appeal would go back to the same panel that remanded the issues, but Judge Stephen Williams' death in August makes how the court might respond more unclear since he persuaded the other judges that the FCC had met its Chevron analysis burden, said Public Knowledge Senior Vice President Harold Feld.

There's strong will to continue to fight the FCC on net neutrality given the possibility of a change in White House administration but also an understanding Chairman Ajit Pai won't change course so there's little motivation to lobby the agency as there was for the 2017 order, said Feld. A bigger emphasis will be put on a substantive recon petition so if the FCC changes hands there's a procedural vehicle for reconsideration, he said. PK "will remain involved," Feld said.

With a 30-day window for a recon petition after FR publication, and the FCC having to publish notice of accepting a recon petition, which starts a comment cycle on considering the petition, a recon petition decision would be sometime next year, said Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman. Benton was a petitioner in Mozilla and if the draft remand order is adopted would likely participate in the challenge, he said.

The FCC has a problem in that not doing anything to change its prior decision risks the D.C. Circuit doing a broad review of the fundamentals of the net neutrality order itself, including Communications Act Title I reclassification, said Pantelis Michalopoulos of Steptoe, who represented clients in the Mozilla challenge of the net neutrality order.

PK's Feld, in a call with an aide to Commissioner Geoffrey Starks recapped in a docket 17-108 filing Thursday, said the draft remand order wrongly focuses on net neutrality rules like paid prioritization or blocking content and should consider how Title I reclassification affects public safety and Lifeline. The lack of FCC authority under Title I is the biggest danger to public safety and the goal of universal access because the agency can't stop providers from disconnecting customers virtually at will.