FCC Seeks to Move Title II Appeal to the D.C. Circuit

Randy Sukow

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As it currently stands, the FCC’s April Declaratory Ruling, Order, Report and Order, and Order on Reconsideration restoring Title II telecommunications regulations on broadband internet service providers is set to go into effect on July 22. But several Title II opponents are ready to appeal the order in the U.S. Court of Appeals for the Sixth Circuit based in Cincinnati. The Commission is seeking to have that appeal moved to the U.S. Court of Appeals for the District of Columbia Circuit.

It is possible that the Supreme Court ultimately will decide the question of telecommunications regulation of broadband internet, but the location of the appeal could be an important interim factor. The Commission favors the D.C. Circuit, which upheld a similar Title II order on appeal in 2018.

Several groups in late May filed appeals in different jurisdictions throughout the nation after CTIA – The Wireless Association filed its appeal in the D.C. Circuit. Among them, the Ohio Telecom Association, Ohio Cable Telecommunications Association and USTelecom – The Broadband Association, filed in the Sixth Circuit. A multijurisdictional panel later assigned the case to the Sixth Circuit by lottery.

“In a series of orders beginning in 2005, the FCC has acted to promote the widespread deployment of broadband networks that are open, affordable, and accessible to all. Four of these previous orders have been reviewed by the D.C. Circuit,” the FCC said in a June 7 petition to the Sixth Circuit. “The D.C. Circuit has repeatedly engaged with the FCC concerning the lawful contours of the agency’s Open Internet rules. Respondents submit that it would be most efficient, and in the interest of justice, to transfer this latest round of follow-on litigation to the D.C. Circuit.”

Meanwhile, the FCC denied a petition to stay the effects of the April order. USTelecom, CTIA, NCTA – The Internet & Television Association, and eight other national and state organizations filed the petition late last month as many of the same organizations filed appeals. The petitioners argued that the FCC should allow the court to consider the major-questions doctrine’s inpact on the case before the order goes into effect. “Petitioners’ arguments for why the Commission’s classification decision should be analyzed under the major-questions doctrine are not persuasive,” the FCC said in the order to deny.

Title II opponents could petition for a stay with the appeals court, whether it be the Sixth Circuit or DC Circuit. The DC Circuit denied such a petition in 2015.

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