D.C. Court to Hear USTelecom, Alamo Title II Challenges

FCC Has Signaled It Will Challenge Those Suits As Premature

The U.S. Court of Appeals for the D.C. Circuit has been chosen to hear USTelecom and Alamo Broadband challenges to the FCC's Title II reclassification of Internet Access service.

That is according to a decision by the U.S. Judicial Panel on Multidistrict Litigation. The panel randomly picks the circuit if challenges are filed in more than one venue.

USTelecom filed in the D.C. Circuit, Alamo in the Fifth Circuit, which covers Texas, where the company is based. The D.C. court is the one that threw out the FCC's 2010 Open Internet order, rejected the FCC's Comcast/BitTorrent net neutrality ruling, and is generally the venue of choice for regulatory challenges by industry (it is also the court with primary jurisdiction over FCC decisions).

The FCC has signaled it will ask those suits to be dismissed, arguing they were premature since they were filed before the Feb. 26 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 publication in the register.

Other critics of the FCC Title II decision are likely to file their own suits after Federal Register publication, and USTelecom and Alamo can as well.

One veteran attorney said there now "might be some arguing" that D.C. should not get the case even if there is a lottery for a second flight of suits that winds them up in a different court.