Net Neutrality
The FCC wants the case moved to the D.C. Circuit, which has previously ruled in the agency’s favor on net neutrality.
Photo of the Potter Stewart U.S. Courthouse in Cincinnati, which houses the Sixth Circuit, by Warren LeMay
WASHINGTON, June 25, 2024 – The U.S. Chamber of Commerce joined broadband providers in asking the Sixth Circuit Court of Appeals not to move the net neutrality challenge to the D.C. Circuit.
In Re: MCP
Earlier this month, ISPs sued in multiple venues to block the reinstated Federal Communications Commission rules and a lottery system put the case before the Sixth Circuit. The FCC on Friday again asked the court to move the case to the D.C. Circuit, arguing that court is better suited because it served as the venue for four previous cases related to the agency’s classification of broadband under the Communications Act.
The Chamber is not a party in the net neutrality case. The group on Monday filed an amicus brief – after the court’s deadline for responses to the transfer motion – because it’s generally opposed to federal agencies moving regulation cases to Washington.
“Hoping to sustain an aggressive regulatory agenda, agencies are increasingly trying to transfer cases away from venues where people and businesses bear the brunt of these burdens and to a circuit that agencies think will be a more government friendly venue,” the Chamber wrote.
The group pointed to four attempts by agencies to move cases to D.C. in the past two years, none of which were ultimately successful.
The FCC does have reason to think the D.C. Circuit would be a safer venue, as the court ruled in the agency’s favor when its first round of net neutrality rules adopted in 2015 were challenged by internet providers. The conservative-leaning Sixth Circuit, on the other hand, would seem to be a more advantageous setting for industry groups to argue their case this time around.
Sixth Circuit judges did rule in the FCC’s favor last year when a conservative group asked them to find the agency’s $8-billion broadband subsidy program declared unconstitutional. The Supreme Court also declined to weigh in on the issue, but the fight is still live in the Fifth Circuit, which has yet to hand down a ruling after an en banc rehearing in September.
ISPs have asked the court to stay the net neutrality rules, which are scheduled to go into effect July 22. ISPs have asked the Sixth Circuit to rule on the stay by July 15.
The Benton Institute for Broadband & Society, intervening in the case on the FCC’s behalf, filed a motion opposing the Chamber’s request to file an untimely brief, something its lawyers described as rare.
Responses to the FCC’s transfer motion were due June 17 and replies to those were due June 21 after the court shortened the usual schedule. The last-minute filing on Monday gave Benton and the FCC no time to review the brief’s contents and ultimately was not necessary for the court’s understanding of the transfer motion, the group argued.
“The parties opposing [transfer] are represented by a small army of some of the most experienced and prominent practitioners in the bar,” Benton wrote. “They do not need assistance in presenting their opposition.”