The FCC has filed motions to dismiss petitions for review of its recent order to lighten the regulatory treatment of the internet. The motions were filed by New America Foundation’s Open Technology Institute, the County of Santa Clara, and Free Press, in three different federal Circuit Courts – the D.C., First and Ninth, respectively.
The FCC’s motions rightfully assert that the Restoring Internet Freedom Order comes from a rulemaking proceeding still in a summary stage, and the text of the amended rules has not as yet been published in the Federal Register. Under federal law, this makes them premature and thus must be dismissed for lack of jurisdiction.
It’s not surprising that these organizations have tried to get their oars in the water ahead of the starting line. They all believe that a more open regulatory approach will be the death of the internet as we have always known it. They forget, of course, that the internet grew and flourished for almost 20 years under the lighter touch regime. They will all surely be back in court later, even if the FCC prevails now.
But what will be very interesting is how the Ninth Circuit Court will rule on just this preliminary, procedural motion to dismiss that clearly follows existing law. The loony tune judges in that district often substitute their personal political views for settled law. After all, they did this in scuttling President Trump’s lawful proposed changes in immigration policies.
Stay tuned. This fight will get much messier.