D.C. Circuit Seen Hearing Net Neutrality Case
The U.S. Court of Appeals for the D.C. Circuit is likely to review legal challenges to the FCC net neutrality order despite petitions filed in two other circuits, though it’s possible another circuit could assert jurisdiction, which could raise uncertainties, attorneys following the case told us. The D.C. Circuit is where the FCC and most of the petitioners want the case heard, where initial petitions were consolidated, where stay requests are expected to be filed, and where previous net neutrality rulings occurred and provide precedent, they said.
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“The more process that goes on at the D.C. Circuit, the more weight that adds to motions to transfer everything else there,” said Harold Feld, Public Knowledge senior vice president. “If you put a gun to my head, I’d say it ends up in the D.C. Circuit,” said Andrew Schwartzman, Georgetown Institute for Public Representation senior counsel. Among others who said the D.C. Circuit would probably end up with the case were Jonathan Banks, USTelecom senior vice president; David Bergmann, National Association of State Utility Consumer Advocates attorney; and Jeffrey Lubbers, an administrative law professor at American University Washington College of Law.
Some of those attorneys and others cautioned that the different legal challenges to the FCC order in the D.C., 3rd and 5th circuits could create a thorny dispute over the proper venue. The FCC has asked the 3rd and the 5th circuits to transfer their cases to the D.C. Circuit, and some attorneys said that was the most likely outcome. Some couldn’t rule out the possibility the 3rd and/or 5th circuit could assert jurisdiction. “If one or both of those courts keep the case, it’s kind of a mess,” Feld said.
The situation is complicated because there have been two rounds of legal challenges: those filed before the FCC order was published in the Federal Register and those filed afterward. USTelecom and Alamo Broadband, a wireless ISP, filed challenges in the D.C. Circuit and 5th Circuit, respectively, in March before Federal Register publication, due to some filing uncertainties. The D.C. Circuit was then chosen April 2 to hear the consolidated case by the Judicial Panel on Multidistrict Litigation, which held a lottery, the normal procedure for resolving such issues.
But after Federal Register publication of the FCC order April 13, new challenges were filed by USTelecom and others in the D.C. Circuit, by Alamo in the 5th Circuit, and by Full Service Network and other competitive LECs/resellers in the 3rd Circuit. The FCC filed motions April 30 asking the 3rd and 5th circuits to send their petitions to the D.C. Circuit, arguing those courts were “statutorily required” to transfer the cases because the Judicial Panel had designated the D.C. Circuit as the court of record in the litigation.
Alamo and Full Service Network have until Thursday to file responses to the FCC’s motions. “I’d be surprised if anybody opposes the transfer,” said a lawyer involved in the net neutrality litigation. If neither opposes the transfer, the way would seem to be clear for the cases to be consolidated at the D.C. Circuit. If opposition is filed, the 5th and/or 3rd circuit will have to assess the arguments. Most attorneys weighing in on the issue thought those circuits would probably still transfer the case to the D.C. Circuit, but there would at least be the possibility one or both other circuits could assert jurisdiction.
The FCC asked the D.C. Circuit Friday to dismiss the initial USTelecom and Alamo petitions as premature because they were filed before the Federal Register publication date, which was the official “public notice” triggering filings, according to the agency. The FCC said the only exception to that rule was for licensing and adjudicatory decisions affecting specific parties. Although there was a declaratory ruling in the net neutrality order, it was a ruling of general applicability, not an adjudicatory decision, the FCC said. “Thus, the date of public notice for the [net neutrality] order … is the date of Federal Register publication,” and any petition filed before that is “incurably premature,” the FCC said.
The FCC said dismissal of the initial USTelecom and Alamo petitions won't “affect the appropriateness of the Court’s consideration of the remaining petitions for review,” referring to filings made after Federal Register publication. USTelecom/Alamo responses to the FCC dismissal motion are due May 21, said a lawyer. The D.C. Circuit is likely to throw out the initial USTelecom and Alamo petitions, said several attorneys, but whether such a dismissal will call into question the initial lottery and choice of the D.C. Circuit is unclear, said some. “There’s no clear law on this,” Schwartzman said.