FCC: Avoid ‘Rush’ to Brief Petitions to Vacate Digital Discrimination Order

The FCC disagrees with the motion of 20 industry petitioners for expedited briefing and oral argument of their consolidated challenges to the commission’s Nov. 20 digital discrimination order, according to the agency’s opposition brief Tuesday (docket 24-1179) in the 8th U.S. Circuit Court of Appeals.

The FCC telegraphed its opposition to expedited briefing last Thursday (see 2403140042). The petitioners have asked the 8th Circuit to rule on their motion by Wednesday.

The petitioners said an expedited briefing will ensure there’s enough time for the 8th Circuit to render a decision on the petitions for review before rules in the digital discrimination order take effect Sept. 22. They argue that the 8th Circuit should enter a briefing schedule that opens Friday, the same day that the statutory window for new petitions closes.

The FCC opposes the petitioners’ motion partly because it would provide for “overlength” briefs totaling at least 80,000 words, depriving the government “of the time it needs to prepare and coordinate its response brief,” the commission’s brief argues. The petitioners' proposal either “significantly limits” the 8th Circuit’s time to prepare for oral argument or requires a special session during summer recess, it said.

The petitioners’ “extraordinary request is unjustified,” the FCC’s brief adds. Beyond “purported and unquantified” costs of complying with the order, the petitioners “face no realistic prospect of harm” from the order before briefing, argument and disposition of this case “in the normal course,” it said. “Accelerating this highly complex proceeding would prejudice" the government and other parties and “unnecessarily burden” the 8th Circuit, it said: “The motion should be denied.”

There’s no good reason “to rush the parties’ briefing” or the 8th Circuit’s consideration of this case, the FCC’s opposition said. In light of the complexity of the proceeding and the industry petitioners’ request to file a significantly overlong brief, the government “reasonably requires 60 days after submission of the briefs of all petitioners and their supporting intervenors to prepare and coordinate its response brief,” both within the FCC and with DOJ.

The 8th Circuit’s consideration shouldn’t be “unreasonably constrained” by the petitioners’ proposal for accelerated briefing and argument, said the FCC's brief. No party will suffer harm if the 8th Circuit doesn’t decide this case before the order’s Sept. 22 enforcement date, it said. The order merely provides that on Sept. 22, “the FCC may (not will) commence (not conclude) disparate impact investigations,” it said.

Any such investigations wouldn’t “immediately (or even necessarily) lead to monetary penalties,” said the FCC’s brief. Though the industry petitioners complain that they have already begun to incur unquantified compliance costs under the new rules, which aren’t yet in effect, that’s “a commonplace result for regulated entities and not, by itself, a ground for expedition,” it said.