The FCC has yet to decide whether to seek a second lottery to decide which federal appeals court will hear an industry challenge to its Feb. 26 order reclassifying ISPs as telecoms under Title II common carrier regs.
The Judicial Panel on Multidistrict Litigation, which conducts a lottery when challenges are filed in more than one circuit, has already chosen the D.C. Circuit. But there could be a second lottery if those first suits, which were filed before the FCC published the order April 13—are determined to have been premature, which even the filers—USTelecom, Alamo—concede was likely the case.
Suits are not supposed to be filed until an order is published, but USTelecom and Alamo filed early in case the declaratory ruling portion of the Feb. 26 decision counted as a final decision—it required no vote—and triggered the 10-day window for getting in a circuit lottery.
A second round of suits was filed after April 13. Those petitions also included different circuits, including the Third Circuit.
FCC lawyers are still deciding whether to seek a new lottery for those or stick with the D.C. Circuit. “The Commission will address the question at the appropriate time," said an FCC spokesperson. The FCC is supposed to signal the court fairly expeditiously after it has been notified of those petitions, but has no hard and fast timetable, according to an FCC source.
One argument goes that given the D.C. court's rulings twice to overturn FCC network neutrality decisions, and given that the Third Circuit is considered more liberal, the FCC should ask for a second lottery. Another argument is that since the new rules are a direct remand from the D.C. Circuit after it overturned the 2010 open Internet order last year—and responds directly to some of the things the court called the FCC out on—and given that long history with the case and its subject matter expertise, that is the place the review belongs and should stay.
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