Net Neutrality Opponents Question Publication Delay

Administrative delays continue to plague the publication of the FCC’s controversial Net Neutrality Order adopted back in December 2010. According to agency observers, ongoing negotiations with Internet service providers and the need for OMB to approve the rules’ complex information reporting requirements may push the publication date of the regulations into the Fall.

The official publication of the regulations in the Federal Register will enable net neutrality opponents to launch long-awaited legal and legislative challenges against the Order. Even as publication remained pending, Verizon and Metro PCS each appealed the Order in the D.C. Circuit, contending that the FCC exceeded its statutory authority when it imposed the new regulations. The D.C. Circuit dismissed the suits without prejudice last month because the companies filed prior to the Order’s publication, but Verizon indicated that it plans to refile its challenge once the rules are published in the Federal Register. 

In the House of Representatives, opposition to the Net Neutrality Order has been especially strong. Following an initial delay and contentious hearings on the issue, in April, the House passed a Resolution of Disapproval under the Congressional Review Act seeking to invalidate the Order. Rep. Greg Walden (R-OR), a leading critic of the FCC’s net neutrality policies, began questioning the publication delay last month and suggested the agency intentionally put off the Order’s publication to hinder impending challenges. In response, the FCC noted that the Order is going through the “normal process” of OMB review under the Paperwork Reduction Act and that the agency has no incentive to delay the implementation of one of its key policy proposals.

OMB approval of new reporting requirements, however, is not automatic. For example, OMB rejected new FCC backup power rules in 2008 because the FCC did not allow for sufficient public comment, did not prove the information required from carriers would be useful, and did not show it had sufficient staff to analyze the required information. While commentators have not focused on the OMB review process, this perceived delay in the publication of the final rules has added yet another twist to the political drama that has surrounded the Net Neutrality issue.