FCC Will Oppose Expedited Briefing on Digital Discrimination Petitions for Review

Twenty industry and business groups, including CTIA, USTelecom and the U.S. Chamber of Commerce, seek expedited briefing and oral argument on their consolidated petitions for review challenging the lawfulness of the FCC’s Nov. 20 digital discrimination order (see 2402290002), said their motion Wednesday (docket 24-1183) in the 8th U.S. Circuit Court of Appeals.

The industry petitioners asked the 8th Circuit to rule on their motion by Wednesday. The petitions are consolidated in the 8th Circuit by order of the Judicial Panel on Multidistrict Litigation. The FCC said Thursday it will oppose the motion for expedited briefing and will file its opposition brief by midday Tuesday.

Expedited briefing and oral argument in the industry petitioners’ challenge are necessary to ensure that the 8th Circuit “has an opportunity to determine the rule’s lawfulness” before the FCC begins enforcing it in September, said the motion. The parties have been unable to reach “a timely agreement about a proposed briefing schedule,” it said. As a result, petitioners are asking the 8th Circuit for an expedited briefing schedule, to begin with opening briefs due by March 22 and oral argument during the court’s June 10-14 sitting, said the motion.

The industry petitioners first reached out to the FCC Feb. 15 about a joint expedited schedule, said the motion. Though the industry petitioners “have endeavored to give maximum flexibility” to the commission and to expedite briefing “through reduction of their own time,” the FCC “has been unable or unwilling to agree to a proposed briefing schedule,” it said.

The industry petitioners “accommodated every initial request” from the FCC, said the motion. They explained to the commission the need for expedited consideration and on Feb. 15 proposed a briefing schedule that would allow the 8th Circuit to hear oral argument during its June sitting and to reach a decision on the consolidated petitions for review by late September, before the rule takes effect, it said.

The FCC on Feb. 22 requested changes to the industry petitioners’ proposal, said the motion. The commission asked that it be given at least 45 days from the filing of all petitioners’ opening briefs to submit its response brief, and that it be allowed at least 25,000 words in its response brief, it said. The industry petitioners accommodated those requests, and on Feb. 23, they proposed a revised schedule that would allow the commission 45 days to submit its response brief, it said.

That had the effect of cutting into the industry petitioners’ time to draft an opening brief and a reply brief, said the motion. They also worked to streamline briefing by agreeing to file a single consolidated brief, and accommodated the commission’s request for additional words in its brief, it said.

The FCC will oppose the motion for expedited briefing and oral argument, Deputy Associate General Counsel Sarah Citrin wrote the 8th Circuit Thursday. The commission would ordinarily have until March 25 to respond to the motion, said Citrin. But because the industry petitioners have asked that the court act on their motion by Wednesday, the FCC “commits to filing its opposition” not later than noon CDT on Tuesday, she said.