The FCC’s motion that would transfer the consolidated challenges of the commission’s net neutrality order to the U.S. Appeals Court for the D.C. Circuit (see 2406100044) is part of a trend of federal agencies that attempt to use venue-transfer motions “to steer major regulatory challenges out of the regional circuits,” the U.S. Chamber of Commerce said in a 6th Circuit amicus brief Friday in opposition (dockets 24-7000, 24-3449, 24-3450, 24-3497, 24-3504, 24-3507, 24-3508, 24-3510, 24-3511, 24-3517, 24-3519, 24-3538). This trend harms litigants and courts as it saddles them with “burdensome threshold litigation” in cases that often already involve “fast-paced litigation over stays and other interim relief,” the chamber said. In addition, the trend harms the regulated public, “impairing its right to hold agencies accountable for unlawful conduct in the jurisdictions where that conduct harms the public.” The FCC’s transfer motion is “especially inappropriate” because it would “undermine” the judicial lottery system, “reintroducing through the back door of transfer motions the forum shopping that Congress sought to eliminate when it established the current system of random selection in 1988,” it said. But the FCC stands firm in its support of the transfer, its reply said Friday. This latest round of “follow-on litigation” involves essentially the same parties, legal landscape, and issues that the D.C. Circuit “has been grappling with” through each successive net neutrality case and order, the FCC said. Should the litigation proceed in the 6th Circuit instead of the D.C. Circuit, the 6th Circuit and the parties “would need to expend considerable resources to walk the same ground already traveled during the previous years of litigation in the D.C. Circuit,” it said.

The FCC asked the 5th U.S. Circuit Court of Appeals to dismiss Consumers' Research's challenge of the agency's USF contributions methodology. Consumers' Research "made the same arguments before the Sixth and Eleventh Circuits," the agency said in a petition filed Monday (docket 22-60008), adding the U.S. Supreme Court declined to review the decisions (see 2406110008). "Those decisions are thus final and not subject to further review," the FCC said, and "petitioners are precluded from raising the same claims here." Also, Consumers' Research filed a motion for the D.C. Circuit for a voluntary dismissal regarding one of its challenges to the USF contribution factor.

The Justice Department is trying to avoid public attention to and judicial scrutiny of its conduct, Vermont National Telephone (VTEL) told the U.S. District Court for the District of Columbia last week as it argued for an oral hearing on DOJ's motion to dismiss. In a reply in support of its motion for an oral hearing (docket 1:15-cv-00728), VTEL said the court can't follow DOJ's argument that the issue can be decided based on the parties' written submissions, since DOJ hasn't submitted evidence supporting its dismissal decision. DOJ is seeking dismissal of relator VTEL's litigation against Dish Network designated entities (DE) Northstar Wireless and SNR Wireless over allegations of fraud in the FCC's 2015 AWS-3 auction (see 2403040052). In a reply in support of its motion to dismiss this month, DOJ said there's a lack of evidence Dish and the DEs failed to make a material disclosure to the FCC as well as a lack of damages. It said VTEL hasn't contested that Dish and the DEs paid full price for every license they received as they were never awarded any bidding credits. "Given the extensive written submissions by the parties (with Relator filing hundreds of pages on this issue), the United States respectfully submits that such a hearing is not necessary here," DOJ said. In a statement, EchoStar's Dish said VTEL's fraud claim case "has always been frivolous, and the DOJ was absolutely justified in moving to dismiss it." It said VTEL's allegations of political interference "are false and baseless."

Responses are due Monday at the 6th U.S. Circuit Appeals Court on the FCC's motion transferring the consolidated challenges to the commission's net neutrality order to the D.C. Circuit (see 2406100044|), a case manager’s letter said Thursday (dockets 24-3449, 24-3450, 24-3497, 24-3507, 24-3508). Responses to ISPs’ motion to stay agency judgment (see 2406110073) are due Tuesday, the letter said. Friday is the deadline for replies to the responses to either motion, it said.

The Benton Institute for Broadband & Society supported the FCC’s request that the 6th U.S. Circuit Appeals Court move a challenge to the FCC’s net neutrality order to the D.C. Circuit (see 2406100044). A lottery chose the 6th Circuit to hear the case. Yet Benton said the law governing random selection by the Joint Panel on Multidistrict Litigation “merely provides a means for determining which court will initially administer the proceeding, including determining the appropriate venue for its ultimate disposition.” Benton argued that “few cases are as deeply tied” to a particular circuit as net neutrality is to the D.C. Circuit: “Since 2008, the core legal issues presented here have been presented to the D.C. Circuit in five successive cases.” Benton noted that a 2020 FCC order responding to a remand of the 2018 net neutrality order remains before the D.C. Circuit. Groups that brought the challenge say it should remain before the 6th Circuit (see 2406110073).

CTIA, the Ohio Telecom Association, USTelecom, NCTA, the Wireless ISP Association and other ISP groups asked the 6th U.S. Circuit Appeals Court to stay the FCC’s net neutrality order (see 2406100044). The FCC wants to move the case to the D.C. Circuit and has declined to stay the order, which takes effect July 22. The agency “has asserted total authority over how Americans access the Internet,” according to a joint motion filed Monday (docket 24-3450). “That is not hyperbole,” the groups said. The order “is only the latest jolt in a decade of regulatory whiplash for ISPs,” the associations said. After nearly 20 years of a light-touch approach to regulating the internet, in 2015 the FCC asserted for the first time authority over high-speed internet access service under Title II of the Communications Act, the filing said: Before the U.S. Supreme Court “could weigh in, a new Administration reverted to the traditional light-touch approach. Now, after another change in Administration, the Commission is back to a heavy hand, promising to make even more aggressive use of its claimed powers.” The court should stay “the latest flip-flop pending judicial review” since “petitioners are overwhelmingly likely to succeed on the merits,” the ISPs said. They argue that the order should be rejected under the Supreme Court’s evolving major questions doctrine. “Because the Commission cannot point to clear congressional authorization for applying common-carrier regulation to the Internet, the Order is unlawful,” they said.

The U.S. Appeals Court for the D.C. Circuit granted the FCC’s motion to dismiss the petition of Essential Network Technologies and MetComm.Net that challenged the authority of the agency and the Universal Service Administrative Co. to withhold reimbursement of discounts for IT and broadband services that the two companies provided to schools under Section 254 of the Communications Act (see 2404250028). Circuit Judges Robert Wilkins, Michelle Childs and Florence Pan issued a per curiam order Friday (docket 24-1027). The petitioners didn’t challenge the FCC's “final reviewable order,” the order said. The D.C. Circuit also denied the petitioners’ request for mandamus relief to order USAC to release the reimbursements, said the order. USAC’s investigations of the two petitioners and their eligibility to receive universal service fund reimbursements are complete, the FCC told the D.C. Circuit last week (see 2406050001). USAC’s delay in completing the investigations wasn’t so egregious as to warrant mandamus, the order said. The petitioners haven’t otherwise demonstrated a “clear and indisputable right to mandamus relief,” it added.

Financier BIU, which unsuccessfully petitioned the FCC to reinstate a Spectrum Five complaint against Intelsat, is appealing the agency's dismissal of that petition. The full commission's April dismissal of a petition seeking reinstatement of the SF complaint (see 2404110053) was fraudulent because it was done at the instruction of someone who had no right, power or authority to do so, BIU said Friday in a petition for review (docket 24-1189) at the U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit complaint seeks reinstatement of SF's petition that the FCC act against Intelsat for allegedly interfering with SF's spectrum license. "The unauthorized withdrawal of the [SF] Petition amounts to a fraud on the Commission itself," BIU said. The SF petition was withdrawn at the instigation of SF CEO David Wilson, who lacked authority to do so, BIU argued. Wilson didn't comment Monday.

The Universal Service Administrative Co.'s investigations of Essential Network Technologies and MetComm.Net and their eligibility to receive universal service fund reimbursements are "now complete," FCC counsel James Carr wrote the U.S. Appeals Court for the D.C. Circuit Tuesday (docket 24-1027). USAC has begun to notify the companies and the schools they serve “of any downward adjustments in universal service funding stemming from USAC’s findings in the investigations,” said Carr. USAC expects to complete this notification process within the next month, he said. The two companies petitioned the D.C. Circuit in February to order USAC to release the reimbursements they said they were due for IT and broadband services that they provided to schools under Section 254 of the Communications Act (see 2402200044). The FCC said in late April that USAC’s investigations stemmed from evidence that the companies and the schools they served “may have had a prohibited pre-existing relationship” before the schools awarded the companies their business (see 2404250028). Carr’s letter to the D.C. Circuit didn’t delve into USAC’s findings from those investigations.

The Wireless ISP Association is another group challenging the FCC’s net neutrality order in the D.C. Circuit U.S. Court of Appeals (see 2406030053). On Monday, the challenge was consolidated with other cases in docket 24-1169. The FCC order “marks a radical departure from the status quo and will have profoundly negative consequences for the internet and the national economy -- all without Congressional authorization,” WISPA said: “The Order will deter innovation and investment in broadband for WISPA’s small and rural members who may lack resources adequate to absorb the Order’s compliance costs and enforcement risks.” WISPA also said the order was “contrary to law, arbitrary, capricious, and an abuse of discretion; exceeds the FCC’s authority; and otherwise violates the Administrative Procedure Act.” Petitioner statement of issues is July 3.