Net Neutrality
ISPs want the case to remain in Cincinnati to deny the FCC home court advantage in the D.C. Circuit.
Map: The U.S. Court of Appeals for the D.C. Circuit is located about 1.1 miles from FCC headquarters
WASHINGTON, June 21, 2024 – The court battle over Net Neutrality is stuck in first gear for now.
That’s because the Federal Communications Commission and groups for Internet Service Providers can’t agree on where to hear the case.
The ISPs want the case heard by the U.S. Court of Appeals for the Sixth Circuit in Cincinnati. Meanwhile, FCC litigators want the case transferred to the U.S. Court of Appeals for the D.C. Circuit in Washington, about 1.1 miles from the agency’s headquarters.
FCC lawyers want the D.C. Circuit because that court has unmatched experience with the issues, having ruled in four previous cases related to the agency’s classification of ISPs under the Communications Act.
“The D.C. Circuit … has been intimately involved in multiple previous iterations of the very regulatory program at issue, directly shaping the lawful contours of the FCC’s Open Internet rules with each decision,” FCC attorney Scott Noveck said in a filing Friday with the Sixth Circuit.
The FCC said it was concerned that familiarizing the Sixth Circuit with the long history of Net Neutrality regulation and litigation would waste time and resources.
“If this litigation were to now proceed in this [Sixth Circuit] instead of the D.C. Circuit, the [Sixth 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,” Noveck said.
In a filing Monday, the ISPs – represented by several national and state trade associations – urged the Sixth Circuit to keep the case, mainly because the ISPs think the D.C. Circuit would give the agency home field advantage in the contest over classification of ISPs as common carriers under Title II of the Communications Act.
“The last time the FCC classified broadband under Title II, it defended its order in the D.C. Circuit and won there,” the ISPs said in the filing.
In his filing Friday, Noveck pointed out that the ISP trade groups CTIA, WISPA, and ACA Connects all sought review of the Net Neutrality rules in the D.C. Circuit before the case was assigned to the Sixth Circuit by lottery.
The ISPs, however, believe the Sixth Circuit won’t have trouble getting up to speed.
“Washington, D.C., has no monopoly on the Internet or administrative law,” the ISPs said.
The ISPs have asked the Sixth Circuit to stay the FCC’s rules by July 15, a decision that remains pending, and postpone a decision on the FCC’s case transfer request until after ruling on their motion to stay.
