The FCC’s Open Internet Order (the “Order”) was published in the Federal Register today, Monday, April 13, and, unless the Order is stayed, will become effective after sixty days, on June 12, 2015. Publication in the Federal Register starts the time for petitioning for judicial review and also provides a timeline for covered entities to begin developing compliance plans—again, unless the Order is stayed.
However, one aspect of the Order, the “enhanced” transparency requirements, will not become effective on June 12. Specifically, the information collection requirements in paragraphs 164, 166, 167, 169, 173, 174, 179, 180 and 181 of the Order impose new information collection obligations on broadband service providers and are therefore subject to further review by the Office of Management and Budget (“OMB”). (For a discussion of these new requirements, see our earlier advisory.) These provisions will become effective after the FCC publishes a separate document in the Federal Register announcing OMB approval and the relevant effective date(s).
Publication in the Federal Register is likely to trigger numerous appeals of the Order. Indeed, two petitions for review have already been filed, though the FCC has taken the position that such appeals were premature, arguing that the period for judicial review does not begin until the Order is published in the Federal Register. While those petitions were consolidated in the D.C. Circuit by the Judicial Panel on Multidistrict Litigation, we do expect that the FCC will to move to dismiss them. We anticipate that new appeals will be filed in several different jurisdictions, which will initiate a 10-day lottery period and require the JPML to select the court (which could be the D.C. Circuit again) that will hear all appeals on a consolidated basis.
As we outlined in our previous advisory, the Open Internet Order imposes significant new operational requirements and obligations on broadband Internet access service providers. Over the next sixty days service providers should be considering how to properly implement processes and procedures necessary to ensure compliance with these new duties (should the Order not be stayed).