No delay for net neutrality lawsuit in spite of government shutdown

Most of the FCC's staff may be furloughed because of the government shutdown, but the agency's lawyers are still expected to show up in court next month to defend its repeal of Obama-era net neutrality rules.

On Thursday the US Court of Appeals for the District of Columbia rejected the Federal Communications Commission's request to delay oral arguments in the case, which is scheduled for Feb. 1.

The Republican-led agency voted a year ago last month to repeal the rules adopted in 2015, which were designed to ensure that all traffic on the internet was treated equally. Attorneys general from 22 states, along with several activist groups and tech companies like Mozilla, filed a lawsuit accusing the FCC of arbitrarily rolling back the rules and overstepping its authority to ban states from passing their own protections.

The DC Circuit, which has twice before heard cases involving net neutrality, is expected to render a decision sometime this summer.

The court confirmed this week on its website that the government shutdown wouldn't affect its schedule. It said it has enough funding to hear cases through January and February.

But the FCC, which has only about 20 percent of its staff working, filed a motion yesterday asking the court to postpone oral arguments in the net neutrality case. The FCC said in its filing that because of the "lapse in funding for the FCC and the relevant component of the Department of Justice, the Commission believes that, in an abundance of caution, it should move for an extension to ensure that attorneys may fully prepare for argument."

The FCC said that the Department of Justice has advised all "government attorneys to request that active [civil] cases be postponed until funding is available." But the agency said it would be prepared regardless.

The FCC didn't respond to a request for comment.

The issue over the net neutrality rules has become a lightning rod for controversy. The FCC, led by Chairman Ajit Pai, an appointee of President Donald Trump, has argued that the "heavy-handed" rules deterred internet service providers' investment and innovation. (Read Pai's op-ed on CNET here.) Large internet service providers, like AT&T, Comcast and Verizon agree with Pai's argument.

But supporters of net neutrality say the internet as we know it may not exist much longer without the protections. Big tech companies, such as Google and Facebook, and internet luminaries, such as web creator Tim Berners-Lee, fall into that camp. Since the repeal, they've been working in Congress and in state legislatures to reinstate the rules.

Congressional Democrats last year tried to undo the the rollback of the popular rules through the Congressional Review Act. The Senate passed its resolution in May. But the effort failed to get enough votes in the House of Representatives by the end of the year as is required by the act.

Now the fight heads to the courts. The heated legal battle could eventually end up at the Supreme Court, where all eyes would be on newly appointed Justice Brett Kavanaugh, who questioned the FCC's authority to adopt the original net neutrality protections. That position was expressed in a dissent he wrote last year that challenged the rules.

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