Word is today the FCC will release its network neutrality order reclassifying broadband as Title II. I’ll update with a link when that happens.
UPDATE #2: I goofed on the length of time parties have to file petitions for review with the federal appeals courts. I cited 47 U.S.C. 402(c). But as a kind reader emailed me, the mandatory time limit in 402(c) only applies in the limited number of instances listed in 47 U.S.C. 402(b) — cases with exclusive jurisdiction in the D.C. Circuit. In most cases, including here, petitions are filed under 402(a), which directs the filer to the procedural rules under the time allowed under 28 U.S.C. 2344. That gives parties 60 days to file a Petition for Review, not the 30 days specified in 47 U.S.C. 402(c). This error is now corrected below.
My only excuse is I was dashing this off quickly in the morning and forgot about this distinction between 402(a) and 402(b). It was annoyingly sloppy on my part. My thanks to the reader who chose to correct me very gently by email rather than mocking me disdainfully on Twitter or in the comments section.
Below is a (relatively) short FAQ on what happens now.
Do the new rules apply today?
No. The new rules cannot take effect until they are published in the Federal Register (aka “Fed Reg” to us practitioners). See FCC Rules 1.103 and 1.4. The Federal Register notice will then state the effective date of the Order.
Can the cable and telephone companies run to court and get an injunction today?
No, because the Order is not considered “final agency action” until it is published in the Federal Register. See Rules 1.103 and 1.4 and 47 U.S.C. 402. However, the companies can file their lawsuits and requests for stay once the item is published in Fed Reg. They don’t need to wait for the effective date.
UPDATE #3: Under the Ordering Clause at the end of the Order, the rules will take effect 60 days after publication in Fed Reg.
Does anything happen today?
We get to read the Order and the dissents. I know all you non-lawyers are dying to do that.
Also, although the Order is not yet final for purposes of appeal to federal court, parties can file petitions for stay peding judicial review with the FCC.
Why would anyone do that? Does anyone think the FCC would grant a stay?
No, but it’s generally considered a good thing to do because the law requires that you have to make any argument you want to present on appeal to the agency first. This is called “exhaustion of administrative remedies.” While all the substantive arguments are in the record, and therefore could be subject to a direct petition for review by a federal court of appeals, the companies will want to make the arguments as to why the order would cause such immediate harm that a stay is warranted. But I’m not going to discuss how a stay works because I’m just trying to do a (relatively) short FAQ here on timing.
O.K., so the Order gets released today, but it’s not “final” until it is published in the Federal Register, and doesn’t go into effect until the effective date, which will be some number of days after Fed Reg publication.
So how long until it is published in the Federal Register?
That’s kinda hard to say.
Why is it hard to say when Fed Reg publication will happen?
The FCC does not publish the Federal Register. The Government Printing Office (GPO) publishes the Federal Register. There is a process by which agencies submit their various things that require Fed Reg publication to GPO, and GPO, through some arcane process of its own, then decides when it gets published.
But that shouldn’t take too long, right? So we’re talking what? A week? Two weeks?
Ummmm . . . .
Say what? You know I’m too lazy to click through to that Wikipedia Link.
Under the Paperwork Reduction Act, when a federal agency creates a regulation requiring a report to the federal government or a disclosure to the general public, the proposed rule must be reviewed by the Office of Information and Regulatory Affairs (OIRA), a division of the Office of Management and Budget (OMB), to determine if the rule is really necessary or unduly burdensome. If OIRA disapproves the rule, the agency has a bunch of options I won’t get into now.
Why does the Open Internet Rule need an OIRA review?
Among other things, the new open internet rules enhance the disclosure requirements around network management. That constitutes a mandatory new disclosure of information to the general public, triggering a need for OIRA review before the regulations can go into effect.
Can’t the FCC just publish the rest of the Order and hold off on the enhanced reporting requirements?
No. That’s what held up the publication of the 2010 Open Internet Order for almost a year. The 2010 Order included an undefined disclosure requirement, because the FCC was dong a different proceeding (“Bill Shock”) where they intended to have related disclosure requirements. The FCC tried to get Fed Reg to publish the Order with an effective date of “after we get the other disclosure requirements worked out,” but Fed Reg said, ‘no, you need to actually have a specific date on which the Order goes into effect, not “whenever we get our act together on reporting requirements.” So the FCC had to develop the disclosure rules, then send those to OIRA for review, have OIRA decide they were OK, and only then could they go back to Fed Reg with an actual effective date.
You mean this could take MONTHS!!
No. This time the FCC has its act together (I expect) and they have the reporting requirements all set and they are probably already shipped over to OIRA for review (I can’t swear to how this process works, so I have no idea whether the FCC sends to OIRA before or after public release). OIRA review in this case should be fairly straightforward.
Fine. So when do you think the FCC Open Internet Order will be published in Fed Reg, making it final for appeal, allowing the companies to file for review in federal court, etc.
I expect in about 7-10 days. So either late next week or early in the week of March 23.
Once the Order is published in Fed Reg, how long do parties have to sue?
Is this automatically going to the D.C. Circuit?
Parties can file in the D.C. Circuit or in the federal court of appeals for the circuit in which they reside. In case multiple parties file, then whoever filed first wins. HOWEVER, because this used to cause a massive rush to the courthouse and lots of confusion with time zones, etc., Petitions for review in the first 10 days are all considered filed at the same time.
So if multiple petitions for review are filed in different circuits in the first ten days, it will be decided by lottery where the appeal goes.
However, this case is clearly related to the previous Verizon v. FCC case. So if the case gets sent outside the D.C. Circuit by the lottery, the parties that want the case back in the DC Circuit can motion for the court of wherever the case lands to send the case back to the D.C. Circuit. In the interests of time, however, I will spare you all the possible complications.
So how does a stay request work in that case?
It’s kinda complicated. I think I’ll wait on that until we see if a stay is actually filed.
Good, because this is not exactly a “short” FAQ.
I know, but if it weren’t long and wonky, it wouldn’t be Tales of the Sausage Factory.
And when is a court likely to decide?
Again, that’s kinda hard to predict, and I’m not gonna run through all the possibilities. But if Fed Reg publication happened next week, and we ended up in the D.C. Circuit, we’d probably try to get briefing done by fall with argument beginning of next year. Might be sooner if parties agree to an accelerated briefing schedule.
Stay tuned . . .