FCC Trying To Postpone Net Neutrality Lawsuit Over US Shutdown, But It Probably Won't Work

Federal Communications Commission (FCC) Chairman Ajit Pai takes a drink from a mug during an FCC meeting where the FCC will vote on net neutrality, Thursday, Dec. 14, 2017, in Washington. (Photo: AP / Jacquelyn Martin)

Citing an ongoing partial shutdown of the U.S. government, the Federal Communications Commission (FCC) on Tuesday moved to postpone the next phase of the lawsuit challenging its 2017 decision to repeal net neutrality protections nationwide.

In a motion before the District of Columbia appeals court, the FCC’s counsel wrote that the shutdown would prevent the agency, and relevant Justice Department employees, from taking part in oral arguments next month, as scheduled, citing limitations on voluntary work by government employees during the lapse in appropriations.

The Antideficiency Act prohibits the government from accepting voluntary services from furloughed employees “except for emergencies involving the safety of human life or the protection of property.”

Oral arguments in the net neutrality case were set to begin on Feb. 1. There is no indication that the government shutdown, which is now in 25th day, will end before then, however, a fact the FCC seem keenly aware of.

More than 800,000 federal workers are currently without pay. Negotiations between the White House and members of Congress appear at a standstill.

The Justice Department’s contingency plan for the shutdown advises all government attorneys to request stays in civil cases until funding becomes available. The law does not preclude the courts from advancing cases against the government during a shutdown, however.

The chances of the FCC motion being granted seem slim. In a 2-1 opinion issued last week, the D.C. Circuit denied a similar request while noting that it is typical do so. The judges also mused that the government always seems to find a way to show up and argue its cases.

During the 2013 shutdown, the court received 16 such requests to postpone oral arguments. “Every one of these motions was denied,” the judges wrote, “and every time, the Government then participated in oral argument.”

The case against the FCC—Mozilla, et al v. FCC—is brought by numerous pro-net neutrality parties including the Mozilla Corporation, the Open Technology Institute, Free Press, Public Knowledge, and 21 state attorneys general, among others. The case includes numerous intervenors on both sides, including several trade organisations representing America’s top internet service providers.

Read the FCC’s motion to postpone oral arguments here.

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