Incompas Opposes Net Neutrality Argument Delay; ADA Cover Seen if FCC Bid Is Denied

Incompas urged a court to reject an FCC motion to delay Feb. 1 oral argument on its net neutrality reversal due to the partial government shutdown (see 1901150011). Denial would expressly authorize the FCC to proceed with the case despite Anti-Deficiency Act (ADA) restrictions absent regular funding, and be in line with U.S. Court of Appeals for the D.C. Circuit precedent denying such government stay requests during shutdowns, said the group's opposition Wednesday in Mozilla v. FCC, No. 18-1051. Incompas, one of many petitioners challenging the commission order, cited the need for a "timely decision" to protect consumers and edge providers from the risk of "substantial harm" due to possible ISP network interference, adding that delay would disrupt petitioner preparations. The court "may likely deny this motion," emailed Morgan Lewis communications attorney Andrew Lipman, citing opposition and precedent: "My sense is the FCC recognizes this distinct possibility in the way they drafted the Motion. I believe they will be ready to go on Feb 1." It seems the FCC expects the motion to be denied "but that the denial acts as authorization to continue preparing for the argument ... because the court requires it," emailed Daniel Lyons, Boston College associate law professor. Citing "aggressive" cost cutting by federal courts and public defender offices, the Administrative Office of the U.S. Courts confirmed Wednesday its intent to extend judiciary operations at least through Jan. 25 "by using court fee balances and other 'no year' funds." But "at some point in the near future, existing funds will run out if new appropriated funds do not become available." After that, only "mission-critical work" would be allowed, including case resolution, with each court determining staffing needs.