10 Groups Oppose Transferring Net Neutrality Challenges to D.C. Circuit

Granting the FCC’s motion to transfer the consolidated challenges to the commission’s net neutrality order to the U.S. Appeals Court for the D.C. Circuit would “subvert” Congress’ preference for “dispersed regulatory challenges rather than specialized courts,” CTIA, USTelecom and eight other groups told the 6th Circuit in a joint opposition brief Monday (dockets 24-7000, 24-3449, 24-3450, 24-3497, 24-3507, 24-3508, 24-3510, 24-3511, 24-3517, 24-3519).

Congress established a multi-circuit lottery to end "races to the courthouse and a Washington, D.C.-centric bias in administrative challenges,” the brief said. In addition, Congress' random selection procedure recognizes the “twin facts” that U.S. appeals courts can adjudicate administrative disputes and petitioners “are entitled to an equal opportunity to litigate in their home circuits,” it said. Here, that lottery selected the 6th Circuit “among all the statutorily eligible and competent courts to hear this litigation,” it said.

The FCC’s view is that the D.C. Circuit should adjudicate the net neutrality challenge because it previously heard such cases, the brief said. However, it’s "obvious" why the FCC wants to “sidestep” the lottery, the brief argued. The last time the commission classified broadband under Title II, “it defended its order in the D.C. Circuit and won,” it said, citing 2016's USTelecom v. FCC decision.

But the lottery's premise is that such forum shopping is impermissible, “and a matter stays in the chosen court unless there is a compelling reason to send it elsewhere,” the brief said. There's no such compelling reason in this case, it added. The 6th Circuit “is just as competent to review FCC regulations and to interpret statutes as the D.C. Circuit,” the brief said. The lottery statute’s “narrow exception” allowing for transfer for the convenience of the parties and in the interest of justice “does not apply.”

The FCC has compiled a new administrative record, said the brief. In that record, the FCC and tens of thousands of commenters debated the effect of the commission’s 2018 reversal of the 2015 rule, the relevance of certain technological changes “and the persuasiveness of new rationales” for the commission’s action, it said. “None of this has ever been evaluated in any court,” it added. In light of those legal and factual developments, the D.C. Circuit’s experience in USTelecom and other broadband cases means it lacks “any particular claim to this case,” let alone a claim so compelling that the “interest of justice” demands a transfer, it said.

The FCC’s net neutrality order has “nationwide effect,” including “significant effect” in the 6th Circuit, the brief said. The petitioners’ challenge “turns on a statutory-interpretation question that no court has yet resolved under prevailing legal standards,” and that the 6th Circuit is “more than capable of adjudicating,” it said: “This is precisely the sort of action for which Congress created the multi-circuit lottery.”