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'Follow-Up Litigation'

FCC Asks 6th Circuit to Transfer Net Neutrality Appeal to D.C. Circuit

The FCC urged the 6th U.S. Circuit Appeals Court Friday to move the challenge to the FCC’s net neutrality order to the D.C. Circuit (docket 24-3450). The FCC also issued an order declining to stay the rules, which take effect July 22, pending judicial review.

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While the 6th Circuit is where pleadings are filed, that doesn’t necessarily mean it will hear the case, industry lawyers noted last week (see 2406070061). A lawyer for the Ohio Telecom Association, USTelecom and NCTA, which sought 6th Circuit review, told the court the groups plan to file an opposition to the commission’s transfer motion. The filing, made Sunday, asks the court not to act until the groups respond. It also asks the court to rule on a motion for a stay of the order before taking up the merits of a transfer. The Judicial Panel on Multidistrict Litigation last week, using a lottery, randomly selected the 6th Circuit Court for consolidation among the seven courts where the order was challenged.

The FCC is facing a slew of challenges from industry groups claiming that reclassification of broadband internet access service as a Communications Act Title II telecom service and reestablishing net neutrality rules potentially violates the major-questions doctrine (see 2406030053). In addition to the 6th Circuit challenge by the Ohio Telecom Association, USTelecom and NCTA, challenges were filed in five other courts by various state industry groups and advocacy organizations.

In a series of orders starting in 2005, “the FCC has acted to promote the widespread deployment of broadband networks that are open, affordable, and accessible to all,” the FCC argued. The D.C. Circuit reviewed four of these prior orders, the agency said in its Friday filing: “It would be most efficient, and in the interest of justice, to transfer this latest round of follow-on litigation to the D.C. Circuit.”

In the filing, the FCC reviews the history of the challenges to its net neutrality rules, all of which have been heard in the D.C. Circuit. Most recently, the 9th Circuit agreed to transfer to the D.C. Circuit challenges to the 2018 order, which rolled back provisions in the 2015 rules (see 1803280035), the pleading said. “Because the D.C. Circuit had ‘considered virtually identical issues in inter-related proceedings,’ … the parties agreed that the D.C. Circuit was ‘thoroughly familiar with the ‘background of the controversy,’ making transfer appropriate.’”

As all parties agreed in the review of the 2018 order, “it would serve the interest of justice, sound judicial administration, and the convenience of the parties to transfer these cases to the D.C. Circuit,” the FCC argues: “This is the latest in a series of interrelated orders in which the Commission has grappled with a complicated set of statutory and regulatory commands in an effort to promulgate lawful and enforceable Open Internet rules, taking into account -- with each iteration of the rules -- the D.C. Circuit’s holdings and directives from earlier rounds of litigation.” The review of the rules is likely to turn on the details of the D.C. Circuit’s past decisions in other cases, the pleading said.

The D.C. Circuit is also the most convenient forum for hearing the case, the FCC said. “Here, all of the petitioners are represented principally (and in nearly every case entirely) by counsel based in Washington, D.C.,” the agency said.

The Government Accountability Office told the leaders of the House and Senate Commerce committees last week that the FCC followed relevant federal procedural statutes in the net neutrality proceeding, including the Administrative Procedure Act. The FCC’s proceeding complied with APA via the notice-and-comment process and “included a Final Regulatory Flexibility Analysis … as required by” the Regulatory Flexibility Act, GAO said in a report to Senate Commerce Chair Maria Cantwell, D-Wash., House Commerce Chair Cathy McMorris Rodgers, R-Wash., and their respective ranking members. The FCC made clear that “new or modified information collection requirements” in the net neutrality order “will not become effective until after” the OMB completes “any review that the Wireline Competition Bureau determines is required under” the Paperwork Reduction Act. The FCC isn’t subject to other statutes’ requirements because it's an independent agency, GAO said: The commission promulgated the order pursuant to Communications Act Titles II and II and Telecommunications Act Section 706.

A 2021 California Public Utilities Commission challenge of the FCC’s October 2020 net neutrality remand order will “remain in abeyance pending further order of the court,” the D.C. Circuit said in an order Friday (case 21-1016). The FCC should file a status report Sept. 5 and every 90 days thereafter, the court said. Also, the D.C. Circuit directed the CPUC and FCC “to file motions to govern future proceedings within 30 days of the completion of the litigation concerning the 2024 Open Internet Order.”