Get your calendars out. It’s time to calculate the date by which petitions for judicial review of the FCC’s Open Internet Report and Order (R&O) must be filed. That’s because the event that triggers that calculation – publication of the R&O in the Federal Register – has now occurred.
Petitions for review of this kind of FCC proceeding are due to be filed within 60 days of the release of the agency decision. The date of “release” is the date of Federal Register publication, i.e., April 13. That means that petitions for review of the R&O by a federal appeals court must be filed no later than June 12, 2015. BUT if you’ve got your heart set on having the appeal heard by a particular circuit, you should definitely NOT wait until the last minute.
That’s because, if petitions are filed by different parties in different circuits, a lottery is conducted by the Judicial Panel on Multidistrict Litigation (JPML) to choose one of those circuits to be the court which will hear the appeal. And to get your preferred circuit’s ball into the JPML drum from which the random selection will be made, you have to file your petition with your preferred circuit no later than April 23 (i.e., ten days after Federal Register publication). And that’s not all. Once your petition’s been filed, you have to have a paper copy of it, showing the dated “received” stamp from the court, delivered to the FCC’s Office of General Counsel – also no later than April 23. (Since that latter copy has got to be in the hands of the General Counsel within that 10 day period, hand-delivery is the recommended approach.)
The General Counsel’s office will then notify the JPML of the circuits that have made the cut, the JPML will conduct a random drawing and announce the winner, all the cases will then be shipped to that lucky court where they will be consolidated … and then let the fun begin!
The prospect of a random drawing gives rise to the potential for office pools galore. Which circuit will be selected? Which circuit(s) will be included in the drawing? How many different petitioners are going to file by April 23? The list goes on. You’re probably wondering what the chances are that petitions will be filed in more than one circuit. That’s easy: The chances are extremely good. We know that because two parties already filed for review before the technical release of the R&O, as we previously reported. There’s no reason to assume that, having already prepared the paperwork, those two won’t file again now that the R&O’s release is official. How many circuits might be in the drawing? Hard to say, but remember that, the last time the FCC issued a decision in the Open Internet proceeding, a total of six circuits were in the running: First, Second, Third, Fourth, Ninth and D.C. And remember, too, that one of the premature petitioners this time around went to the Fifth.
The Federal Register publication also starts the 60-day countdown to the effectiveness of some, but not all, of the new net neutrality rules. The technical effective date is therefore April 23. BUT the modified information collection requirements in paragraphs 164, 166, 167, 169, 173, 174, 179, 180 and 181 of the R&O won’t kick in until the Office of Management and Budget has signed off on them pursuant to the Paperwork Reduction Act.
And, of course, there’s always the possibility that one or more folks may file for a stay. That adds still more items for your office pool. Check back here for updates.