Quo Vadis, Net Neutrality?

Appeals, reconsiderations, judicial lotteries - there's never a dull moment when it comes to net neutrality.

Just because the FCC finally released its behemoth Report and Order (R&O) in the net neutrality proceeding last month, don't think that the fun and games are over. Not by a long shot.

Au contraire, the battles rage on " and they will soon be waged in two separate arenas, the FCC and one or another U.S. Court of Appeals. As might be expected, we're already seeing new twists and turns that may further complicate an already complicated proceeding.

When the FCC releases a decision, folks unhappy with the decision generally have two obvious options: they may go back to the FCC and seek reconsideration, essentially trying to convince the Commission to change its mind; or they can run to an appropriate U.S. Court of Appeals, in which case they are asking the court to tell the FCC that its decision was in some way(s) flawed. In a rulemaking proceeding (like net neutrality), it's not unusual for some disgruntled parties to take one approach which others take the second approach.

And that's the way things seem to be shaping up here.

The R&O was formally "released" on April 13. As we reported, that meant petitions for review (filed with the courts) would have to be filed by June 12. (It also meant that petitions for reconsideration (addressed to the FCC) would have to be filed by May 13.) And as we also reported, any would-be appellant who preferred to have the appeal heard in a particular Federal Circuit had to jump through a number of special hoops by April 23. Since folks seeking review (whether in the Commission or the courts) routinely wait until the last available minute to file, we won't know for sure exactly who has joined the fray back at the FCC for some time (as of May 9, at least, the FCC's ECFS system was not showing any petitions for reconsideration on file). If one or more petitions are filed - and it's pretty much an odds-on mortal lock that some will seek recon - any court appeals might be held in abeyance pending disposition of the reconsideration petitions. That, however, is not invariably the case. We'll just have to wait and see.

On the appellate side, we do know for sure that a number of appeals have been filed already, presumably by folks itching to lock down their preferred circuit.

As we reported last month, two petitions for review were filed - one in the D.C. Circuit, one in the Fifth Circuit - even before the R&O was officially released. The FCC dutifully submitted those to the Judicial Panel on Multidistrict Litigation (JPML), which pulled the D.C. Circuit ping pong ball out of the Official Lottery Drum. (Interesting factoid: We understand that the JPML has a permanent set of ping pong balls, each officially printed with the number of one circuit, for use on occasions such as these. The balls for the Sixth and Ninth Circuits not only have their numbers underlined - indicating which side is up and which is down - but each spells out "Sixth" or "Ninth", to insure that there is no possible mistake in the result of a drawing involving both those circuits. But we digress.) The Fifth Circuit then transferred its case to the D.C. Circuit, where the Commission has moved to dismiss both of those petitions as prematurely filed. This was expected.

But since the formal release of the R&O, a total of 10 more petitions for review have been filed, eight in the D.C. Circuit, one in the Fifth Circuit, and another in the Third Circuit. All theoretically qualified for another JPML drawing.

But the Commission is taking the position that the initial JPML drawing - triggered by the two supposedly premature petitions - is the only drawing that needs to be done. As a result, the FCC believes that the net neutrality appeal will have to be heard in the D.C. Circuit. We know this because the Commission has moved to transfer the new Third and Fifth Circuit petitions back to D.C. (From the FCC's motion, it looks like the Fifth Circuit petitioner may be gearing up to oppose that transfer; it's not clear what the Third Circuit petitioner plans to do.)

We here in the CommLawBlog bunker confess that this is a first for us, so we can't reliably predict whether the D.C. Circuit has already locked down this appeal, or whether a new drawing will be held. It does strike us, though, that the FCC's approach may have some holes. After all, the Commission is taking the position that the two premature petitions for review must be dismissed because no court had jurisdiction to hear them (thanks to their prematurity). But if no court had jurisdiction over those premature petitions, how could a JPML drawing based on such facially invalid petitions for review be deemed to be binding on petitions that were not premature? Doesn't that unfairly prejudice the Third Circuit filers who, by waiting until the appropriate time to file, have (in the FCC's view) lost any opportunity to have the appeal heard in their circuit of choice?

We'll presumably have a better sense of how this will all shake out in the next several weeks. But for now, at least, it appears clear that the FCC would be happy to have the D.C. Circuit hear the appeal. That would explain the Commission's interesting litigation gambit with respect to the recently filed Third and Fifth Circuit petitions.

Why would the FCC prefer D.C.? Perhaps because, even though the Commission's net neutrality efforts did not fare well there the first two times, the FCC's most recent "Open Internet" effort was ostensibly designed to follow directions implicit in the D.C. Circuit's last net neutrality decision. The Commission may therefore be figuring that, if it can convince the D.C. Circuit that the FCC's latest iteration tracks the D.C. Circuit's Verizon decision closely enough, that may do the trick. By contrast, if the Commission were to have to defend its R&O before a circuit whose views on net neutrality have yet to be articulated, the Commission would likely be far less confident that the court might be sympathetic to its approach. It's a variation on the "Devil you know" conundrum.

Meanwhile, several parties have asked the FCC to stay the effectiveness of the new rules. If the FCC denies those requests - as it likely will - those parties may head to court to try to get a stay there. Which court? The D.C. Circuit is an obvious choice, but if the whole question of a second JPML lottery gets traction, we wouldn't be surprised if the Third and/or Fifth Circuits get drawn into the festivities.

As always, check back with CommLawBlog for further developments.