Update: Net Neutrality Appeal Headed Back to D.C., For Sure

We recently reported that the destination of the appeal of the FCC's "Open Internet" decision might be up in the air because parties had sought review in three different U.S. Courts of Appeals. That would normally mean that a random drawing would have to be held to determine which Circuit would get the nod. But the FCC was taking the position that an earlier drawing - in which the D.C. Circuit had been selected - should control, even though the FCC was simultaneously arguing that the appeals that had triggered that earlier drawing were fatally premature and should be tossed.

Potential crisis averted! The two petitioners who went to non-D.C. Circuits have now advised their respective Circuits that they're cool with having their appeals transferred to D.C. Those would be Alamo Broadband, Inc. (which filed in the Fifth Circuit) and a group of four petitioners led by Full Service Network (which filed in the Third Circuit). That appears to eliminate any lingering question of venue, so all concerned should now be able to focus on the merits.

Oh, wait, we forgot to mention the stay requests.

Since the appellate process is not necessarily quick, the FCC's net neutrality rules are set to take effect long before any decision can be expected out of the courts. So, in order to keep the new rules from kicking in before the appeal process wraps up, folks unhappy with the new rules are asking to have the effective date stayed pending conclusion of that process. They asked the FCC (as they are supposed to do under standard appellate procedure) and - to nobody's great surprise - the FCC declined to stay the effectiveness of the rules. Next stop: The D.C. Circuit. On May 13 seven petitioners filed a joint stay request with the Court. The FCC now has until May 22 to respond.

The Court's disposition of the stay request should come reasonably quickly. When it does, it may provide a hint of the Court's preliminary leaning. In order to get a stay, a party must demonstrate (among other things) that it is likely to prevail on the merits. So if the Court were to grant a stay, it would be saying, in effect, that it believes that the petitioner has a good shot at getting some or all of the new rules tossed. Of course, a grant of the stay request would not necessarily mean that the petitioners will ultimately prevail, nor would denial of the request mean that the FCC is for sure going to prevail. But in the absence of other indicators, kibitzers look to this kind of thing for possible tip-offs about what may be in store.

And one additional observation: Things are getting crowded in United States Telecom Association v. FCC, Case No. 15-1063, which is the lead case in which all the separate net neutrality appeals have been (and will presumably continue to be) consolidated. At last look, there were a total of 10 separate appeals and nearly 20 intervenors. The deadline for filing petitions isn't until June 12, so we can probably expect those numbers to grow. To paraphrase Chief Martin Brody, they're gonna need a bigger courtroom.

Check back here for updates.