WASHINGTON — The federal appeals court that has twice rejected the Federal Communications Commission’s efforts to regulate network neutrality will get a third bite at the apple, according to the U.S. Judicial Panel on Multidistrict Litigation.
The U.S. Court of Appeals for the D.C. Circuit, considered the most friendly to regulatory challenges, has been chosen to hear USTelecom and Alamo Broadband’s challenges to the FCC’s reclassification of broadband Internet service as a Title II common-carrier service. The lawsuits are the first filed against the FCC’s Feb. 26 majority decision to reclassify Internet-service providers as telecommunications providers.
The panel randomly picks the circuit if challenges are filed in more than one venue. USTelecom, the phone-company trade association, filed its suit in the D.C. Circuit, while Texas-based Alamo filed in the 5th U.S. Circuit Court of Appeals.
The D.C. court is the one that threw out the FCC’s 2010 Open Internet order, rejected the FCC’s Comcast/BitTorrent ruling and is generally the venue of choice for regulatory challenges; it is also the court with primary jurisdiction over FCC decisions.
The FCC has signaled it will ask for dismissal of the USTelecom and Alamo suits, arguing that they were premature because they were filed before the decision was published in the Federal Register. USTelecom said it filed out of an abundance of caution, in case the 10-day window for suing was triggered by the FCC’s release of the declaratory ruling portion of the order rather than triggered by publication.
Other critics of the FCC Title II decision are likely to file their own suits after Federal Register publication, and USTelecom and Alamo can do so as well.
One veteran attorney said there now “might be some arguing” that the D.C. Circuit should still get the case even if there is a lottery for a second flight of suits that winds them up in a different court.
