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“Stay With Me”: ISPs Head to Court to Fight New Net Neutrality Rules

May 26, 2015 , , , ,

It’s been almost three months since the FCC issued its order reclassifying Internet Service Providers as Title II telecommunications carriers and establishing strong net neutrality rules. No one was surprised when the ISPs cried foul and sued to overturn the ruling.

Unfortunately for them, the ISPs are in a race against time. The new rules go into effect on June 12th, and even the world’s most well-funded and well-oiled legal team can’t win a judgment of this scope in only four months.

Earlier this week, the ISPs attempted to stop the clock by arguing that the regulations should be delayed until after the lawsuit has worked its way completely through the courts—a process that will, in all likelihood, take years. The FCC refused to do this on its own, so the ISPs turned to the U.S. Court of Appeals for the D.C. Circuit—the same court that overturned the FCC’s earlier attempts at net neutrality—to seek a judicial order that would force the FCC to delay implementation.

To be technical, the order the ISPs are seeking is called a judicial stay (or just a “stay”). Although the results of a stay look dramatic (regulations that were supposed to happen, don’t), the stay itself is completely standard legal maneuvering in these kinds of situations. Affected parties who face a short deadline will always try to hit the proverbial snooze button and turn over for five more minutes of pre-regulatory bliss.

Because a stay can look dramatic, however, it’s worth knowing what exactly one of these orders does—and does not—do.

A stay is a judicial order that forces a government entity to refrain from doing something while a legal dispute about that conduct is settled. Issuing a stay is the judicial equivalent of saying “Hey, I know you’ve got this thing you’re planning on doing, but we’re going to need you to sit on your hands while we figure this all out.”

A stay is not a decision on the merits of the case. Granting a stay does not decide a case; it merely buys time for the affected party. A stay in this case would not “strike down” net neutrality or Title II any more than taking a minute to search for your rain boots changes the weather. 

Having said that, a stay is still a powerful tool; it can freeze government in its tracks with less argument and process than a full lawsuit. If they were easy to get, nothing would ever take effect on time, and rolling out new rules would be an even more absurd process than it already is.

The courts know this, and are extremely skeptical of requests for stays. A party asking for one– in this case, the ISPs – have to jump four hurdles in order to get it.

  1. They must prove that they’re more likely to win their case than not. They don’t spell out their entire argument—think of it more as a movie trailer version—but it’s a good indicator of how they’ll steer their case.
  2. The ISPs must prove that if the regulation (Title II/net neutrality) goes into effect on schedule, they and their business will be damaged in a way from which they can never recover, even if they won the lawsuit in the end. This usually means vague assertions of investments delayed, transactions canceled, and the like.
  3. They have to convince the court that giving them the stay is the lesser of two evils; in other words, that not granting the stay does more harm than good for everyone involved.
  4. Finally, they have to convince the court that issuing a stay actually serves the public interest.

If the court does give a stay, it likely won’t issue an opinion explaining its reasoning. (This practice varies from court to court, but the D.C. Circuit generally just issues up-or-down stay rulings without explanation.)

It’s also important to keep a bit of perspective; although courts are supposed to require full satisfaction of each prong of the test I described above, they often take a more casual approach, weighing the strength of the motion as a whole. It’s entirely possible that, if the D.C. Circuit does grant the stay, it does so on a theory that no real harm would come from granting it anyway.

Also worth noting is the ISPs’ backup request. They ask that if the court denies a stay, it should at least grant what’s called “expedited briefing” – the legal equivalent of slamming the gas pedal. It shrinks the response windows for all parties, pushing the early portions of the case through in a much shorter timeframe. This is an equally dramatic, though less damaging option that achieves the same end; decide the short-term fate of the new rules, and move along.

All in all, the ISPs’ motion to stay is par for the course. The rhetoric is old and well-worn, the motion itself was expected by all parties, and the alternative “fast track” solution will at least provide some certainty for all parties as they move forward. The stay request is only the opening volley in what is sure to be a long and arduous process.

To see an ongoing list of all the net neutrality litigation documents, click here.

Image credit: Flickr user Brian Turner