OTI Petitions D.C. Court to Review FCC's Net Neutrality Rollback

Files early to make sure it will be part of any venue lottery

The Open Technology Institute has joined Public Knowledge to make sure the U.S. Court of Appeals for the D.C. Circuit has at least a couple of ping pong balls in a potential lottery to see where the appeal of the Restoring Internet Freedom Order is heard.

Related: Public Knowledge Takes Early Shot at Net Neutrality Rollback Challenge

The Republican FCC voted Dec. 14 on the order, which rolled back Title II classification of ISPs and reversed the net neutrality regulations against online blocking, throttling or paid prioritization.

If, as is usual, appeals of the decision are filed in multiple circuits, a lottery is held to see which court gets the case. That lottery generally doesn't happen until after a decision is published in the Federal Register.

But in the ISP challenge to the 2015 Open Internet order, early filings were considered -- there was some ambiguity about the trigger date -- and the lottery held based on those, OTI said. So, the groups are taking no chances, even though they say the court should consider no petitions, theirs or anyone else's, until that publication date and the 10-day window following publication in which petitions are supposed to be eligible for the lottery.

So, OTI doesn't want any premature filings considered for the lottery, but if early filings are considered, OTI wants its challenge to be among them, though they would prefer Congress simply nullify the Restoring Internet Freedom Order, as Senate and House Democrats have proposed to do.

"To be clear, the lottery should not take place until the entire order is published in the Federal Register. But given the previously mentioned ambiguities and the precedent for a premature lottery, OTI filed a protective petition," the groups said. "OTI plans to file a supplemental petition for review once the order is finalized in the Federal Register."