Will the Open Internet Order Survive Appeal?
Steve Goodman has been practicing telecommunications law since 1983, when he began working at the Federal Communications Commission. He now represents a wide variety of clients, including telecommunications equipment manufacturers, satellite service providers and international carriers.
Not surprisingly, the Open Internet Order was challenged by eleven parties in seven different Circuits, and under the procedures for multi-jurisdictional appeals, a lottery was held, and the cases were consolidated in the Sixth Circuit Court of Appeals.
In two early losses for the FCC, the Sixth Circuit Court denied the FCC's request to send the case to the D.C. Circuit, where the FCC presumably thought it would get a more sympathetic hearing. The Sixth Circuit Court also granted a stay of the Open Internet Order while it considers the appeal, which means that the challengers convinced the Court that they are likely to prevail on their appeal.
However, predicting how the Court of Appeals (and then most likely the Supreme Court) will ultimately assess the lawfulness of the Open Internet Order is a very tricky exercise, because of two recent Supreme Court decisions that altered the standards for appellate review of administrative decisions.
First, as I wrote about in a column for Public Utilities Fortnightly in the September 2022 issue, the Supreme Court two years ago adopted the Major Questions Doctrine in the West Virginia v. EPA decision.