Net Neutrality Appeals May Have Included Circuit Shopping
Alamo Broadband appealing Monday the FCC net neutrality order in the 5th U.S. Circuit Court of Appeals and USTelecom in the Court of Appeals for the D.C. Circuit (see 1503230066) were examples of circuit shopping for a favorable court to hear the cases, said public interest lawyers in interviews. It's "about circuit shopping,” said Public Knowledge Senior Vice President Harold Feld. “The D.C. Circuit and the 5th Circuit are generally considered to be extremely conservative, anti-regulation, and generally hostile to the FCC.” Litigators won't "forgo any possible advantage, including looking for the forum they think will be most favorable to their appeal,” said Feld.
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The 5th Circuit “has a reputation for being very conservative and is dominated by appointees of Republican presidents,” said Andrew Schwartzman, senior counsel at the Georgetown Law Institute for Public Representation. “The DC Circuit, of course, has heard related cases and has reversed the FCC twice,” he emailed. “That might suggest that it will be unsympathetic to the Commission's efforts to try again.”
Others aren't so sure forum shopping occurred. Earl Comstock, an Eckert Seamans telecom lawyer, said plaintiffs' ability to circuit shop on FCC cases is limited by the requirement to file with the D.C. Circuit or the circuit where the appellants have their principal place of business. “To the extent a law firm has a choice of plaintiffs to use in different Circuits, then of course you factor into the choice which Circuit seems most favorable in terms of understanding the issue, prior case law, etc,” he emailed. USTelecom is headquartered in Washington, D.C. Alamo Broadband is based in Elmendorf, Texas, which is in the 5th Circuit.
True, Feld said, “but there are ways to forum shop around that. … If the industry wanted to get to other circuits, they could have found suitable parties.” Alamo could have chosen to file in the D.C. Circuit, Schwartzman noted.
Alamo and USTelecom beat a potential deadline for being involved in a lottery over which circuit court will hear the appeals. The petitions will go to the Judicial Panel on Multidistrict Litigation, which will decide in a lottery whether the case will go to the D.C. or the 5th circuit, Feld wrote in a blog post. Neither USTelecom nor Alamo's Wiley Rein attorney Brett Shumate would discuss their choice of districts.
During a Phoenix Center teleconference on the net neutrality order Tuesday, former General Counsel Sam Feder, now of Jenner & Block, said the filings were likely made out of an abundance of caution because of an ambiguity over the deadline. To be eligible for the lottery, appeals need to be filed within 10 days after public notice of the contested item. Public notice of a declaratory ruling occurs immediately upon release, but public notice of a rulemaking occurs upon publication in the Federal Register, and the net neutrality order has elements of both, he said. USTelecom characterized its petition in a news release as “a precautionary move to preserve procedural rights in challenging” the net neutrality order. If the courts deem its petition premature, USTelecom said it will refile.
Feder said the order appeared to do “an adequate job” of meeting Administrative Procedure Act requirements for providing adequate notice. Title II opponents have said it failed to meet APA rules because last year’s NPRM focused on a Communications Act Section 706 approach and didn't propose rules governing interconnection agreements. Feder said including interconnection might fairly be characterized as a necessary implication of the decision to reclassify broadband. In addition, the NPRM raised more questions about interconnection. “I’ve seen much worse cases,” he said. Jeff Lanning, CenturyLink vice president-federal regulatory affairs, noted courts often remand notice violations to the agency instead of repealing the order. If it's remanded, the agency could simply issue another rulemaking and take the same action as before, he said.
Tom Navin, former Wireline Bureau chief, now at Wiley Rein, said reclassification was “one of the most breathtaking reversals of law in the last 25 years of telecom regulation.” Even with Chevron deference, the agency will need to provide “a fairly compelling rationale” for the shift, which the order fell short in doing, said Navin, who represents wireline clients. Angela Giancarlo, former chief of staff to then Commissioner Robert McDowell, who now represents wireless clients at Mayer Brown, said making the argument that times have changed to justify reclassifying wireless broadband “is a leap.” Feder said the agency did “a decent job” in justifying reclassification and a court could defer to the expert agency’s judgment.
Challenge to forbearance is another vulnerable point in the order, Navin said, saying the agency appeared to follow less stringent procedures for forbearing from a number of sections of Title II than in other proceedings -- a point Lanning echoed. Feder agreed, but said a court ruling in favor of the FCC on other aspects of an appeal could go along with the upholding the forbearances as well.