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Which Court Gets to Hear the Net Neutrality Appeal?

By 21 January 2011 8 Comments

Thirty years ago, a contentious agency rule would trigger a “the race to the courthouse.” Under the law at the time, whichever Court of Appeals received the first-filed notice of appeal got the case. But it would not do to file too early, because that rendered the appeal invalid. Wait, and some other interest would jump ahead.  So:

Messengers are assigned to hover around agency offices waiting for the exact moment an order is issued. Other messengers, armed with forms for filing the appeal, are stationed at the offices of the clerks of various circuits. The two are connected with long-distance telephone lines and walkie-talkies. The result is that filings are frequently made in various circuits within minutes, or even seconds, of each other.

It was all pretty funny, especially in those long-ago pre-cellphone/texting days, but deadly serious, too, because forums do matter. So questions arose as to the accuracy of clocks and time stamps, the impact of time zones, the platonic essence of the nature of “finality,” and other topics dear only to administrative lawyers.

In 1983 Congress changed the system, enacting 28 U.S.C. Sec. 2112, which provides that all valid notices of appeal go into the equivalent of a hat, with the lucky court selected by a lottery conducted by the Judicial Panel on Multi-District Litigation (JPML).

The FCC General Counsel, anticipating multiple appeals of the Net Neutrality rule, recently issued guidance to friend and foe alike on the requirements that must be met to get one’s appeal into the hat, a useful public service.

The guidance points out that an appellant has 10 days from the final date of the order to file. Since FCC rules become officially final only upon publication in the Federal Register, an event that has not yet occurred, this clock is not yet running.

The assumption underlying the guidance is that any appeal would be filed under the general provisions of 47 U.S.C. Sec. 402(a), which govern “Any proceeding to enjoin, set aside, annul, or suspend any order of the Commission under this chapter (except those appealable under subsection (b) of this section) . . . .”  Section 402(b) lists a series of actions for which appellate jurisdiction lies exclusively in the D.C. Circuit. Among these provisions is a right of appeal to the D.C. Circuit by “(5) By the holder of any construction permit or station license which has been modified or revoked by the Commission.” There is no overlap between 402(a) & (b) – if (b) applies, then the D.C. Circuit has jurisdiction and that is it.

Yesterday, Verizon filed an appeal of Net Neutrality in the D.C. Circuit, asserting that it has exclusive jurisdiction under 402(b) because:

Verizon “hold[s]” wireless spectrum “license[s] which ha[ve] been modified . . . by the Commission.” 47 U.S.C. Sec. 402(b)(5). [Quote marks, ellipses, brackets in the VZ filing]

(Verizon filed now because the statute also requires an appeal within 30 days of an order’s final date, and Verizon fears that the clock started running on Dec. 23, when the Commission approved the order, rather than on the date of Fed Register publication. This is lawyerly caution, and Verizon will file again after the FR notice. But there is a trap for the unwary in the difference between the 30 days a party has to file an appeal, and the 10 day limit on filing that is necessary to get into the lottery under the applicable JPML rule (see Part II). An appeal filed between days 11 to 30 is valid, but the receiving court will not be in the hat if the FCC received notices of earlier appeals within the 10-day period.)

So what we have here is an interesting situation. Do Verizon’s wireless licenses meet the provisions of 402(b)? Its notice contains a couple of artful omissions, such as turning “station license” into “wireless spectrum ‘license[s]’”, so the issue is not clear cut.

But who decides? Other interested parties will file appeals in other circuits under 402(a), so the lottery will be held. Will the winner of the judicial lottery then decide on Verizon’s claim that D.C. has exclusivity?  Or does the D.C. Circuit decide? Since appeals under (a) and (b) are mutually exclusive, but many parties other than Verizon clearly lack standing under 402(b), is it possible that the circuit that wins the the lottery will conduct a parallel review to the D.C. Circuit’s review of the Verizon appeal? Or would a different Court of Appeals decide to transfer the case to D.C. so that everything could be heard together – and how would this mesh with the lottery statute?

Verizon has also asked the D.C. Circuit to assign the case to the panel that heard the Comcast case that triggered the rulemaking, a request that can be considered either only good sense, since that panel is already familiar with the issues, or the ultimate in forum shopping. (It is also a risky tactic, for obvious reasons.)

The big problem is that all these issues will take time to unwind before any court even gets to the merits, during which the tech and telecom sectors will be subject to continuing uncertainty. As usual, no one will win but the lawyers.

Note: Back in the days before the passage of 28 U.S.C. Sec. 2112, J. V. DeLong was Research Director of the Administrative Conference of the United States, so for him this is Groundhog Day.

Image from Avelino Maestas Photostream.