FCC Still Mulling Best Title II Challenge Venue

The Federal Communications Commission has yet to decide whether to seek a second lottery to decide which federal appeals court will hear an industry challenge to its Feb. 26 order reclassifying Internet service providers as telecommunications under Title II common carrier regulations. The Judicial Panel on Multidistrict Litigation, which conducts a lottery when challenges are filed in more than one circuit, has already chosen the DC Circuit. But there could be a second lottery if those first suits, which were filed before the FCC published the order April 13 -- are determined to have been premature, which even the filers -- USTelecom, Alamo -- concede was likely the case.

Suits are not supposed to be filed until an order is published, but USTelecom and Alamo filed early in case the declaratory ruling portion of the Feb. 26 decision counted as a final decision -- it required no vote -- and triggered the 10-day window for getting in a circuit lottery. A second round of suits was filed after April 13. Those petitions also included different circuits, including the Third Circuit. FCC lawyers are still deciding whether to seek a new lottery for those or stick with the DC Circuit. “The Commission will address the question at the appropriate time," said an FCC spokesperson. The FCC is supposed to signal the court fairly expeditiously after it has been notified of those petitions, but has no hard and fast timetable, according to an FCC source.