Request to Transfer Net Neutrality Case From 9th to DC Circuit Seen Possible; Does It Matter?
The 9th U.S. Circuit Court of Appeals may be asked to transfer net neutrality litigation to the D.C. Circuit, observers told us Friday. Parties to the case aren't saying what they'll do; some cautioned against speculation; and others questioned whether it would make that much difference to the outcome. But several agreed with previous suggestions the 9th Circuit generally is slower than the D.C. Circuit in deciding cases. The FCC declined to comment.
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The 9th Circuit was picked Thursday in a court lottery to hear challenges to the FCC's "internet freedom" order which repealed net neutrality regulation and reclassified broadband under Title I of the Communications Act (see 1803080055). The D.C. Circuit Friday ordered 13 petitions for review filed there transferred to the 9th Circuit, where the California Public Utilities Commission and Santa Clara County filed petitions.
Petitioners continued to stay quiet on whether they or others would seek a transfer to the D.C. Circuit (see 1803080064), which twice upheld the prior FCC's 2015 Title II net neutrality order (see 1606140023 and 1705010038). "It is always dangerous to speculate about the impact of Circuit selection, since the make up of panels is random," emailed Andrew Schwartzman, counsel for the Benton Foundation, a petitioner. "It is especially difficult to speak about the course of events in the 9th Circuit because it is so large. The one thing that can be said is that the 9th Circuit has a reputation for being extremely slow." A former FCC attorney agreed the 9th Circuit "is notoriously slow, but there's a lot of variation." Schwartzman, the ex-FCC attorney and others also agreed the statute gives the 9th Circuit broad discretion to decide whether to keep or transfer the case.
It's "possible" a transfer to the D.C. Circuit will be sought, "especially if someone wants to tie the case up procedurally," emailed Harold Feld, senior vice president at Public Knowledge, also a petitioner. "I don't think the case law favors transfer, but you could make an argument that the DC Circuit has reviewed this issue multiple times over the last few years and therefore the 9th Circuit should transfer it back." He said most net neutrality advocates challenging a 2002 FCC Title I cable modem ruling wanted that case heard in the D.C. Circuit. But the 9th Circuit won the lottery, resulting in a Brand X ruling that "was extremely good (even if it was reversed by the Supreme Court)," he said. "So it goes to show that despite all the calculations around forum shopping, you can never really predict how things are going to turn out."
A transfer "makes some sense since the D.C. Circuit is already very familiar with the net neutrality situation due its previous rulings, but I’m also comfortable with the 9th," said an attorney representing another petitioner.
"I would expect a transfer request," emailed Doug Brake, Information Technology and Innovation Foundation telecom policy director. "Most filed in DC Circuit for good reason, mostly having to do with speed, but also expertise. The Ninth Circuit is such a wildcard, whereas [D.C. Circuit] Judge [David] Tatel’s thinking is pretty clearly laid out. Though ... I wouldn’t really blame Tatel for throwing up his hands at this point."
Others suggested there could be a transfer motion. "I suspect a successful request for transfer is likely," emailed Enrique Armijo, academic dean and associate professor of Elon University School of Law. "The DC Circuit has heard challenges to net neutrality rules three separate times now, and the 9th Circuit would take that history into account," he said. "I expect consideration will be given to asking for a transfer to the D.C. Circuit," said Gigi Sohn, a Mozilla fellow and a distinguished fellow at the Georgetown Law Institute for Technology Law and Policy. "I wouldn’t be surprised if a party sought to transfer to DC Circuit," emailed Morgan Lewis attorney Andrew Lipman. "I agree that DC circuit generally moves quicker than 9th Circuit."
Some questioned whether the venue mattered that much substantively. "I don’t really know if it makes any difference to the ultimate disposition," emailed telecom attorney Jeff Carlisle. "I imagine some will try to read either a pro or anti net neutrality bent in the 9th Circuit’s recent FTC vs. AT&T Mobility decision. To me, there’s no 'there' there. FTC vs. AT&T Mobility was about the extent of the FCC and FTC’s jurisdiction, relative to one another. This case will be about Chevron deference to the FCC’s most recent interpretation of the Act. Two different things." He also said, "Does it matter that the 9th Circuit includes Silicon Valley and lots of net freedom activists? Probably not."
Feld also believes it's "something of a wash" as to where the case is heard. "On the one hand, the net neutrality repeal order ... did a good job of trolling the majority of the DC Circuit with its apparent disdain for what the D.C. Circuit majority held and its fulsome praise of the two dissenting judges from the denial of rehearing en banc," he said. "On the flip side, it was entirely possible to draw an extremely conservative panel that would have viewed the agency's about-face approvingly. Being in the 9th circuit means not drawing a panel of judges who have heard this before and made it clear they thought the FCC got it right last time, but it also means we aren't going to draw a panel that believes the FCC got it wrong last time."