The legal battle over the FCC’s 2018 quadrennial review order appears headed to the 8th U.S. Circuit Court of Appeals. The Judicial Panel on Multidistrict Litigation randomly selected that circuit from the three where petitions for review were filed, said a consolidation order Tuesday (see 2402250001). The 8th Circuit was the venue for an appeal filed by Zimmer Radio. The other possible circuits in the lottery were the 5th and 11th, where appeals were filed by Nexstar and Beasley Media, respectively. All previous QR challenges were decided by a panel in the 3rd Circuit, but after a 2018 U.S. Supreme Court decision, that panel no longer has jurisdiction in the matter. The 5th, 8th and 11th circuits are seen as having conservative leanings, while the 3rd Circuit is considered more favorable to parties seeking to uphold regulations. Parties in the case could still seek to have it moved to a different circuit, but attorneys familiar with appellate procedure told us that rarely occurs. With the circuit for the case decided, it's likely that more challenges to the order will be filed, including an anticipated one from NAB, attorneys told us. Only circuits where appeals were filed in the 10 days after the order appeared in the Federal Register are added to the Judicial Panel on Multidistrict Litigation’s lottery.

Parties to the 14 petitions for review challenging the FCC’s Nov. 20 digital discrimination order now consolidated in the 8th U.S. Circuit Court of Appeals (see 2402120077) should meet, confer and submit a joint proposed briefing schedule within 30 days, clerk of court Michael Gans wrote counsel for the various parties Wednesday. The proposed briefing schedule “should either provide for briefing to be complete, and the cases ready for submission on the merits,” before the end of calendar 2024, or include an explanation “why the parties believe such a schedule is not reasonably attainable,” his letter said. In his initial review of the petitions, Gans “has preliminarily identified two groups of petitioners, with the members of each group appearing to challenge the agency action in one of two different respects,” it said, without specificity. He thus anticipates that the consolidated cases “will be broken into two tracks, with each of the two groups briefing their respective issues separately, before the cases are ultimately argued and submitted together to the same panel of judges on the same day,” it said. He asked that the proposed briefing schedule “indicate whether the parties agree with the clerk’s preliminary assessment that two separate tracks are warranted.” Gans also asked whether the petitioners intend to submit separate opening briefs, a single consolidated opening brief, or two consolidated opening briefs, “one from each preliminarily identified group of petitioners.”

The Wireless ISP Association petitioned the U.S. Court of Appeals for the D.C. Circuit for review of the FCC’s Nov. 20 digital discrimination order on grounds that it’s contrary to law, an abuse of discretion and violates the Administrative Procedure Act, said the petition Wednesday (docket 24-1047). It becomes the 15th such petition consolidated in the 8th Circuit once it’s transferred there under the Judicial Panel on Multidistrict Litigation's Feb. 9 order (see 2402120077). The order “undermines” congressional intent “by diverting limited human resources and investment from deployment to compliance with burdensome and overbroad regulations,” said the petition. It imposes a novel disparate-impact test that allows the FCC “to micromanage a host of legitimate business practices, including network buildout decisions, pricing, promotions, advertising, contract renewal, and customer service,” it said. If the order is allowed to stand, the FCC could enforce it “with its full range of tools, including civil penalties,” it said. The order “will deter innovation and investment in broadband,” including among WISPA’s small and rural members who may lack adequate resources to “absorb” the order’s compliance and potential enforcement costs, it said.

Three infrastructure owner and contractor groups petitioned the U.S. Appeals Court for the D.C. Circuit Tuesday for review of the FCC’s digital discrimination order, released Nov. 20 and published Jan. 22 in the Federal Register, on grounds that it gives the commission unprecedented authority to regulate the broadband internet economy. The Wireless Infrastructure Association (WIA), the Power & Communications Contractors Association (PCCA) and NATE filed the petition. It was immediately transferred to the 8th Circuit where it was consolidated with 13 previous petitions under a Feb. 9 order from the Judicial Panel on Multidistrict Litigation (see 2402120077). It was docketed as case number 24-1411. The Nov. 20 order “demonstrates the FCC’s failure to retain sight of the scope of its mission assigned by Congress,” the petition said. Entities like infrastructure owners and contractors “play an important role in advancing the goal of facilitating equal access to broadband service by making high-quality modern infrastructure available as quickly as possible for the use by telecommunications and broadband providers,” it said. The infrastructure provided is generally “neutral host,” allowing “any number of providers to place equipment on the sites, increasing broadband access and improving service,” it said. But the infrastructure owners and contractors represented by WIA, PCCA and NATE don’t sell broadband services directly to end users and therefore don’t have the ability “to control the place and manner of broadband access,” it said. The order ultimately also fails to “meaningfully address” WIA’s argument that the order’s definition of “covered entities” exceeds the FCC’s “statutory language and mandate” that Congress intended, it said.

The FCC opposes Radio Communication Corp.'s Jan. 23 emergency motion for “expedited consideration” of its Jan. 10 petition for review to overturn the agency’s Dec. 12 order implementing the 2023 Low Power Protection Act (see 2401240049), said its opposition Monday (docket 24-1004) in the U.S. Court of Appeals for the D.C. Circuit. The Connecticut station contends that the order prevents it from upgrading its LPTV operation to Class A status, and it seeks an emergency stay, expedited review and summary reversal of the order. But RCC asks the court for “three kinds of extraordinary relief” where “none is warranted,” said the FCC’s opposition. The station isn’t entitled to a stay from the D.C. Circuit because it failed to seek one before the commission, it said. RCC likewise failed to establish “the substantial showings necessary” for summary reversal and expedited review, the FCC added. RCC has “no reasonable chance” to prevail on the merits, let alone “clear the high bar necessary for extraordinary relief at this stage,” said the opposition. That’s because the FCC “did nothing more than follow the clear commands of the statute,” it said. RCC’s motion should be denied, it said.

Essential Network Technologies and MetComm.net filed a petition to review last week at the U.S. Appeals Court for the D.C. Circuit challenging the authority of the FCC and the Universal Service Administrative Co. to stop processing the reimbursement of discounts for IT and broadband services that MetComm and Essential provided to schools under Section 254 of the Communications Act. Also at issue is whether the FCC’s failure to conclude numerous extended USAC investigations within a reasonable time violated the Administrative Procedure Act and the Constitution's due process clause by seriously impairing the ability of MetComm and Essential to adequately defend themselves against USAC’s “unspecified allegations,” said the petition (docket 24-1027). This isn’t “an ordinary agency delay case” but instead is a case in which the FCC “has a duty to act,” it said. The commission is failing its “statutory reimbursement duty while embroiling the schools and their service providers in endless proceedings before a private company, USAC, that lacks any authority to decide the legal issues involved,” it said. If the petition to review is denied, the petition seeks, in the alternative, mandamus relief compelling the FCC to comply with the duties Congress included in the Communications Act and the APA, it said.

The Benton Institute for Broadband & Society seeks to intervene on the FCC’s behalf in most of the petitions for review, now consolidated in the 8th U.S. Circuit Court of Appeals (see 2402120077), that seek to vacate the commission’s Nov. 20 digital discrimination order, said the institute’s motion Tuesday. Benton’s own petition for review (docket 34-1317) challenges portions of the FCC’s order pertaining to its absence of a formal complaint process and the order’s treatment of providers that receive broadband, equity, access and deployment funds under the 2021 Infrastructure Investment and Jobs Act (see 2401310003). Though Benton seeks review “of a few elements of the agency decision at issue in these cases, it supports all other parts of that order,” it said. The rules under review in the Nov. 20 order “will advance broadband deployment and adoption by prohibiting discriminatory practices,” said the motion. Benton “will benefit from successful implementation and enforcement of those rules,” it said. If the order under review is reversed or vacated as a result of the grant of all or portions of the petitions for review, Benton “will have to expend additional institutional resources to combat discriminatory practices that impede or preclude additional broadband deployment and adoption,” it said. Benton’s motion to intervene specially excludes the petition filed by the Media Alliance and Great Public Schools Now (docket 24-1319), it said. It’s evident that the petitioners in that docket “are similarly situated with Benton as to the issues for which they seek review,” said the motion. Benton has contacted all the parties through its counsel, and all have stated that they won't object to the grant of the motion, it said.

The 5th U.S. Circuit Court of Appeals granted the FCC’s motion suspending the briefing schedule on Maurine and Matthew Molak's petition for review to vacate the commission’s Oct. 25 declaratory ruling that authorizes E-rate program funding for Wi-Fi on school buses until the court resolves the FCC’s motion to dismiss the Molaks’ petition (see 2402070002), said a clerk’s order Thursday (docket 23-60641). But the 5th Circuit, in a separate clerk’s order Thursday, denied the FCC’s unopposed motion for extra time to reply to the Molaks’ opposition to the motion to dismiss (see 2402120064).

The FCC and DOJ seek a six-day extension, to Feb. 22, to reply to Maurine and Matthew Molaks’ Friday opposition to the commission’s motion to dismiss their petition for review to vacate the agency’s declaratory ruling authorizing E-rate funding for Wi-Fi on school buses (see 2402090048), said the government’s motion Monday (docket 23-60641) at the 5th U.S. Circuit Court of Appeals. The extension is necessary "to allow coordination of the reply between the agencies," it said. Counsel for the Molaks have “represented” that they won’t oppose the extension, it said. The Schools, Health & Libraries Broadband Coalition, an intervenor on behalf of the FCC, supports the extension, it said.

The U.S. Judicial Panel on Multidistrict Litigation, in an order Friday, randomly picked the 8th U.S. Circuit Court of Appeals as the venue in which to consolidate 10 multicircuit petitions for review filed in six appellate courts challenging the FCC’s Nov. 20 digital divide order (see 2402070058), the agency told those courts in notifications Monday, under Panel Rule 25.6. The FCC notified the panel of those 10 petitions Wednesday (see 2402070058). Virtually all the petitioners -- mostly state broadband and television associations, but also the U.S. Chamber of Commerce, are challenging the order on grounds that it gives the FCC unprecedented authority to regulate the broadband internet economy.