Net neutrality critics hedge bets on delay request

Net neutrality critics hedge bets on delay request
© Lauren Schneiderman

Critics trying to kill new net neutrality rules are hedging their bets that a federal court will grant their request to put the regulations on hold.

Lawyers for the telecom industry on Wednesday expressed broad confidence that their ultimate court challenge to the Federal Communications Commission regulations would prevail, but they said their request for a stay is a lot harder to predict. 

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"It's very difficult to say because the court does not usually give a lot of guidance about how they weigh how much harm is necessary,"said Miguel Estrada, the former assistant solicitor general who now represents the National Cable and Telecommunications Association (NCTA). 

"Although we have made what we believe is a very compelling showing of irreparable harm, there is not a lot of information from this particular court about how they go about assessing whether the harm has risen to the critical point or whether it is just merely nearly critical," he added during a press briefing Wednesday. 

A host of lawsuits have been filed in the U.S. Appeals Court of D.C. to fully strike down the FCC's new regulations, which would reclassify Internet access under authority governing traditional telephones. 

While the broader case moves along, critics want the court to put the rules on hold before they take effect June 12. All the briefs have been filed in the stay request and the decision could be handed down at any point. 

Estrada noted that for a court to grant a stay request, it has to be convinced of two main things: That the telecom companies are likely to succeed in the overall case and that the net neutrality rules would cause irreparable harm while the court battle proceeds, which can take a year or more. 

He emphasized the ruling would not be a decision on the merits. 

The court could deny the stay request even if it believed the case was strong. That is because it might find that the harm produced by the net neutrality rules could be undone if they were struck down at a later date. 

"The court may decide that we can deal with [the harm] by a highly expedited hearing — we can move things along so fast that whatever the harm is — however irreparable it is — it is outweighed by the fact that we can proceed to the merits," said Ted Olson, a former solicitor general who is also representing NCTA. 

The D.C. court typically does not give a lot of guidance when granting or denying a stay request. Many times the decisions come in a single sentence offering no real explanation. That makes it hard for court watchers to know precisely how the court weighs each factor. 

Lawyers for the industry have predicted the case would be expedited, and both sides have asked for it. 

A final ruling in that scenario could come by early Spring of next year. If the case is fast-tracked, the first briefs could be filed by July with oral arguments in either December of January. A final decision would come a few months later. 

The lawyers predicted the case could eventually wind up at the Supreme Court. 

"Whatever view you take of the positions issued in this case, it is really one of the most fundamental questions in terms of the…economy and the principles of administrative law," Estrada said.