Panel picks despite possibly premature petitions.
The next time you find yourself at a roulette table in the Net Neutrality Casino, put all your chips on “D.C. Circuit”. It’s a good bet.
As readers may recall, back in 2011, the D.C. Circuit came out on top in a lottery conducted to determine which of six federal courts of appeals should hear appeals of the FCC’s Open Internet decision. And now, nearly four years later, lightning has struck again, with the prospect for a three-peat in the very near future.
The lottery involves the Judicial Panel on Multidistrict Litigation (JPML). The JPML decides which court gets to preside over appeals of FCC actions when different appellants file their petitions for review in different courts. When that happens, the competing circuits are tossed into a drum and one is picked by a JPML official (the “Random Selector”). All appeals of the FCC action in question are then consolidated before that one lucky court. (There are other niceties that have to be attended to in order to get your favorite circuit into the drawing, but you get the idea.)
The Commission released its much-anticipated Open Internet Report and Order on March 12, 2015. And on March 23, two parties filed for review: the United States Telecom Association in the D.C. Circuit, Alamo Broadband in the Fifth Circuit. Presumably each had its own reasons for choosing its particular circuit. The D.C. Circuit has not been particularly kind to the FCC on the net neutrality front the first two times that issue has been before that Circuit, which suggests that maybe it’s the place for petitioners to go. But the FCC did, in the eyes of many, make some headway the last time around. That might suggest that petitioners shouldn’t give D.C. a third shot. Why the Fifth Circuit? Who knows?
While both petitioners may have jumped the gun ever so slightly (more on that below), the FCC duly notified the JPML of the filings, a lottery was conducted and, wouldn’t you know it, the D.C. Circuit’s number came up. (Curiously, the JPML notice indicates that Alamo filed in the Ninth Circuit, rather than the Fifth. After checking the relevant dockets, we’re reasonably sure that the Fifth is where the petition went, but at this point it’s probably not important.)
D.C. Circuit fans shouldn’t get too excited about this, though. As the Commission pointed out to the JPML when it sent the notice of the petitions over, the period during which judicial review of any document issued in FCC rulemaking proceedings starts when the document is published in the Federal Register. (That’s what Section 1.4 of the FCC’s rules says.) Since the Open Internet decision hadn’t made it into the FedReg before March 23, there was technically nothing to appeal, so the petitions for review were premature and should, in the FCC’s view, get tossed.
The FCC is probably pretty confident about this particular argument because, just four years ago, the Commission got a similarly premature petition for review (filed by Verizon) tossed out on the same basis. And it was the D.C. Circuit who did the tossing. So the Commission’s looking good this time around.
Interestingly, rather than move to dismiss the latest petitions separately in the courts where they were first filed, the Commission opted to have the JPML conduct its lottery. Now that the JPML has selected D.C. to hear the consolidated appeals, the FCC plans to move that court to dismiss the whole shebang. Look for that to happen shortly – and, since the lucky court happens to have reacted favorably to the FCC’s argument before, it’s probably a good bet that the petitions will be dismissed.
That doesn’t mean that the Open Internet decision will avoid judicial review. Once the order makes it into the Federal Register, look for a bunch of petitions for review to roll in. If those petitioners choose different circuits – and, from what we’ve seen already, that’s likely to happen – the Open Internet proceeding will be making another pit stop at the JPML, almost certainly setting up the three-peat opportunity for the D.C. Circuit. Now’s the time to get your office pools organized.