Net Neutrality Stay Scenario Seen Facing High 'Irreparable Harm' Hurdle Due to Order's Delay

Any requests for a stay of the FCC net neutrality repeal are complicated in the near term by the considerable delay in its effective date, parties and observers told us. The "internet freedom" order undoing net neutrality regulation won't take effect until the Office of Management and Budget approves the commission's modified ISP transparency (disclosure) rules under the Paperwork Reduction Act, a process that is expected to take at least a few months. A stay movant would have to show there's some likelihood of immediate irreparable harm and success on the case's merits, among other factors.

"Nobody's filed for a stay yet because it's hard to show immediate irreparable harm," given the indefinite delay in the effective date, said Andrew Schwartzman, counsel for the Benton Foundation, which filed a petition for review challenging the order. Courts don't like to issue stays "when the harms are speculative," he said Friday, declining to say whether Benton would seek a stay.

"You might ask yourself about even the need for a stay -- at least sitting here today and guessing the timeline -- if the rules don't go into effect for several months thanks to the OMB approval time lag," emailed Matt Wood, policy director of Free Press, another petitioner. "We're going to have to see what court we wind up in, and who's in the mix, and also assess how much the petitioners will be required to coordinate (in terms of sharing briefs and other matters), before we even get to talking more seriously about a stay."

At least 11 petitions have been submitted to two different circuits: Mozilla, Vimeo, Public Knowledge, New America's Open Technology Institute, 23 state attorneys general, the National Hispanic Media Coalition, NTCH, Benton and Free Press filed in the U.S. Court of Appeals for the D.C. Circuit; the California Public Utilities Commission and Santa Clara County filed in the 9th Circuit. Parties have until Monday to file petitions if they want to be included in a lottery to determine the circuit venue, attorneys said, though they have until April 23 to file petitions.

Only a few petitioners addressed the possibility they would seek a stay. "We are considering all options to protect our residents," said James Williams, Santa Clara counsel, in a statement. NTCH "does not plan to seek a stay," emailed counsel Donald Evans of Fletcher Heald. "Since many of the large ISPs have solemnly pledged not to engage in the abusive behaviors that the now rescinded rules would have outlawed, I would expect them to remain on their best behavior until at least this phase of the appellate process is over. The abuses can then be safely initiated."

"Vimeo is not planning to seek a stay at this time," emailed General Counsel Michael Cheah. "The rules won’t actually go into effect until an uncertain date in the future. So there’s nothing to seek a stay of, at least right now. Even when the rules become effective, I’m not inclined to seek a stay as I believe we’re protected by the cloud of uncertainty hanging over the new rules (due to the litigation and the CRA [Congressional Review Act] efforts in Congress) and the wave of bipartisan net neutrality laws being passed each day by state legislatures (as well as state-level executive orders concerning the state’s purchase of telecommunications services). We may, in lieu of a stay, request an expedited briefing schedule."

If a party wants a stay, it makes more sense to wait for the effective date to be set, Schwartzman said. If and when OMB approves the transparency rules, the FCC plans to publish a new public notice in the Federal Register announcing the order's effective date. Agencies generally give at least 30 days' notice of the effective date, Schwartzman said: "You'll have some warning. ... It's not in the commission's interest to pull a fast one."

Even then, most observers we talked to doubted petitioners would seek a stay, given the difficulty of convincing a court to grant such an injunction (after first seeking relief from the commission, which almost never grants such requests). Several told us in December they believed the stay prospects were dim (see 1712240001). "I’m guessing no one will file for a stay just because net neutrality isn’t a great candidate, and I don’t think a grant or denial of a stay really affects the prospects for legislation," Cowen analyst Paul Gallant said Friday.

"I don't expect that anyone will request a stay," emailed Gus Hurwitz, a University of Nebraska law professor who backed the FCC's broadband reclassification under Communications Act Title I. "It's very likely such an effort would fail, which would be a self-inflicted PR wound for those challenging the Order," he said. "Perhaps more important, it would be a huge PR blunder for any ISP to engage in conduct barred by the prior Order and the new Order's challengers shouldn't want to foreclose that opportunity." Stuart Brotman, University of Tennessee media management and law professor, also doubted there would be a stay request, recognizing it "remains a possibility."

"The D.C. Circuit has been very hesitant over the years to grant stays pending review in agency cases, even when the petitioning parties are asking the court to overturn a rule change,” emailed Enrique Armijo, academic dean and associate professor of Elon University School of Law, who writes regularly on net neutrality issues. “I suspect some of the parties seeking to overturn the Order will seek a stay, but I would be surprised if that request were granted.” Asked about the possibility another court could review the case, he replied: “I think the case will likely end up in the D.C. Circuit because of its two prior cases on the same issue, but if it winds up before another court of appeal, that court would be similarly skeptical of a request for stay.”