With the U.S. Court of Appeals for the D.C. Circuit signaling it planned to hold the Feb. 1 oral argument in Mozilla vs. the FCC partial government shutdown or not, the FCC Tuesday (Jan. 15) asked the court to instead delay the arguments, a move that is OK with cable and telco ISPs.

"The Commission recognizes that the Court has indicated that arguments in February will proceed as scheduled," the FCC said in a court filing. "However, due to the recent lapse in funding for the FCC and the relevant component of the Department of Justice, the Commission believes that, in an abundance of caution, it should move for an extension to ensure that attorneys may fully prepare for argument."

The FCC said it needs an answer ASAP in the event the request is denied and it has to stick to the schedule.

The Justice Department has advised government attorneys to request cases be postponed until government funding is available.

According to the FCC, Mozilla opposes the delay, intervenors for Mozilla, the Internet Association, Entertainment Software Association, CCIA, and the Writers Guild of America, West, have taken no position one way or the other, and Justice, USTelecom, CTIA, NCTA-the Internet & Television Association, the American Cable Association, and Wireless Internet Service Providers Association do not oppose it.

Mozilla is challenging the FCC's decision in the Restoring Internet Freedom order to classify ISPs as Title I information services rather than Title II telecom services subject to some common carrier regs. The order eliminated rules against blocking, throttling and paid prioritization.

In its opening brief to the court last October, the FCC said that its order deregulating internet access simply restored the longstanding regulatory classification of broadband internet access service as an “information service” under Title I of the Communications Act" and returned to a "light touch" regulatory approach.

Mozilla et al. say that was not just bad policy but illegal.

Their argument is that the FCC decided the agency lacked all jurisdiction over the internet, a radical move that defined the statute, they said. Also in the "illegal" category, they argue what they said was the FCC's "cherrypicking" of investment evidence to justify their predetermined outcome of reversing the Title II classification.