High Court Expected to Grant USTelecom Bid for More Time for Cert Filing in Title II Case

USTelecom and others had asked Chief Justice John Roberts to extend to Sept. 28 a current July 31 deadline for filing cert, citing the potential impact of the commission's current rulemaking proposing to undo Title II broadband regulation (see 1707110019). “We asked for a 60-day extension of time to file for Supreme Court review to give the FCC time to resolve its pending Open Internet rulemaking, which could alleviate the harms caused by reclassification and make moot some or all of our concerns," said USTelecom CEO Jonathan Spalter Tuesday. USTelecom and the FCC didn't comment Friday.

Some saw no reason for the commission to oppose an extension. "It would seem to be in the interest of both the FCC and its opponents to stop the clock on further litigation of the Title II order while proceedings are underway to essentially reverse it," said Gerald Brock, a George Washington University professor of public policy and public administration who recently filed comments at the FCC. "It would appear that USTelecom and supporters don't have enough confidence in the outcome of the current proceedings to abandon their appeal, but don't want to spend substantial resources on an appeal that may be irrelevant."

Critics of the FCC order have said the justices may want to review the deference the U.S. Court of Appeals for the D.C. Circuit gave the agency in twice upholding its order under the Chevron doctrine, but one attorney doubted such interest would trump an extension in this case. "For all of the strategies and counter strategies and speculation as to whether it's better for the Supreme Court to address this order or the next one, it's hard to imagine the Court would deny the extension request if the order is under review," emailed telecom lawyer Jeff Carlisle: "Chief Justice Roberts would have to be awfully jazzed about revisiting Chevron to insist on sticking to a schedule on an order that could be significantly changed within a few months."

"For good cause, a Justice may extend the time to file a petition for a writ of certiorari for a period not exceeding 60 days," say Supreme Court rules. Rule 13.5 says an application for such an extension "is not favored," but one veteran telecom attorney said that's not the actual practice. "These requests always get granted," the lawyer said. When asked if there were any caveats, the expert emailed: "There is a 100% probability that the Chief will grant the extension request. ... I doubt anyone will oppose the request because it’s a waste of time."

Sept. 28 Intrigue?

If the extension to Sept. 28 is granted, petitioners still may not know the final outcome of the current FCC rulemaking, at least in all its details. Sept. 28 is the date of the first commissioners' meeting after the close of the comment period. It's possible they could vote on an order by then, but the text of the order might not be released until later, and some believe a vote is more likely in Q4.

The veteran attorney didn't expect further extension requests "because 60 days is all you can get under the rule." Others said there's more wiggle room. Hayes said prospects for a second extension request would be "slim," and a lawyer involved in the case said: "They're going to get their extension, and my guess is they could get successive extensions. They could even ask the case be held in abeyance." That lawyer said the FCC could be sympathetic to extensions because a cert petition would put the solicitor general "in a very dicey situation." Given the few cases the court accepts, "the solicitor general is wary about asking the Supreme Court to take cases," and "this case is not cert worthy," the lawyer said, citing the absence of a circuit split. The expert believes it's possible the case won't be completely mooted even if the commission rescinds Title II reclassification in favor of Title I.

Sept. 28 is not a point of no return, some said. If an extension is granted and a final FCC order is pending, Hayes and others said the petitioners could file for cert on that day and then simply withdraw their petition if it turns out later their case is mooted.

Early Filings

The net neutrality policy debate was mostly quiet ahead of Monday’s filing deadline and following the national day of protest Wednesday (see 1707120017). But the FCC logged another 698,680 net neutrality comments in docket 17-108 by late Friday afternoon, bringing the total to 8,154,595. One question, industry observers said, is how long it will take to post the expected onslaught of comments. “There were 2 million comments gathered by the activists, plus whatever went directly to the FCC,” emailed Gigi Sohn, a top aide to former FCC Chairman Tom Wheeler: “Not sure how long that will take them to process.”

The American Civil Liberties Union sought to preserve the 2015 rules. Overturning them “would eliminate net neutrality protections critical to protecting each individual’s right to access an uncensored internet,” it commented. “This is a First Amendment issue for the ages -- a government-facilitated initiative to cede to a few large corporations the authority to control who gets access to the largest and most democratic public forum in the history of the world.”

Citizens Against Government Waste, an opponent of the 2015 order, also filed early, saying the order was a “misguided attempt to solve a crisis that didn’t exist. Proponents of net neutrality want the online world to be forced ‘open’ at the expense of successful internet providers.”

Cost Estimate

Free State Foundation Senior Fellow Theodore Bolema looked at the FCC’s likely conclusions after a cost-benefit analysis of the economic effect of the 2015 order. FSF earlier estimated the 2015 rules meant a $5.6 billion reduction in broadband investment 2015-16, Bolema wrote. The NPRM proposed to use a multiplier approach to calculate the costs, he said. A multiplier of 1.25 to 1.75 would lead to costs of $7 billion to $9.8 billion, Bolema said. “The potential costs of the regulatory environment imposed by the Open Internet Order are very large,” he said. “These costs include the uncertainty added to the market, lost capital investment, and threats to the emergence of new products and services that may require priority access in the future.”

A spokesman for Fight for the Future challenged the FSF arguments, saying ISPs generally fund such research. ISPs tell Wall Street their networks are growing while complaining to the FCC they’re cutting investment, the spokesman said. The ISPs by law have to tell the truth to investors, but can lie to regulators, the spokesman said.

"Free State's earlier estimate is garbage, and garbage times garbage equals garbage," said Matt Wood, Free Press policy director, noting his group estimates there aren't costs. "Lobbyists, hired guns, and [FCC] Chairman Ajit Pai keep focusing on the industrywide totals."