Title II Appeal Venue Set, but FCC Seeks Move to D.C. Circuit for Home Court Advantage

A federal appeals court in Cincinnati, Ohio, may hear a case challenging the Title II rules reintroduced by the Federal Communications Commission (FCC) in April, but the commission is seeking a change of venue. This attempted change in venue is undoubtedly a move to get a more friendly ruling.

The U.S. Court of Appeals for the Sixth Circuit was selected by lottery because appeals of the rules had been filed in four other circuits by national and state trade groups, including ACA Connects, CTIA, NTIA sand USTelecom. Those four (and other trade groups) asked the FCC to stay the rules until a court could hear the case. The rules will go into effect on July 22 if no action is taken.

On Friday (June 7), the FCC rejected the request from industry groups to halt its order, saying that “would risk hindering the commission’s ability to pursue other policy obligations and objectives that will benefit consumers, particularly those related to national security and public safety.”

Broadband Breakfast pointed out that the Sixth Circuit court leans heavily right, with 19 of the 29 judges appointed by Republican presidents. So, it was not a surprise that the Democrat-controlled FCC requested on Friday that the case be transferred to the U.S. Circuit Court of Appeals for the District of Columbia. “It would be the most efficient, and in the interest of justice,” the commission said.

The FCC’s motive appears to be based on the D.C. Circuit being a friendly venue rather than being the more efficient. The D.C. Circuit previously upheld Title II, or “net neutrality” rules, after the FCC passed them in 2015. Those rules were repealed by the FCC under Republican Chairman Ajit Pai two years later.

Pundits speculate that even if a federal appeals court sides with the FCC, the case would likely end up before the U.S. Supreme Court.

That highest court has embraced the Major Questions Doctrine, which requires a federal agency to have clear authority from Congress to adopt sweeping rules with major impacts on economics and politics. Because Congress never authorized Title II rules, Republican FCC Commissioner Brendan Carr and other critics of the plan argue those regulations should be repealed.   

Johnny Kampis is director of telecom policy for the Taxpayers Protection Alliance