Opening Day at the Court of Appeals

After a long pre-season in which little else happened other than setting a schedule and format for briefing, August 20, 2018 was Opening Day for the litigation appealing the Federal Communications Commission’s December 2017 network neutrality decision. Two groups of challengers (technically referred to as “petitioners”) filed their briefs Monday evening in the US Court of Appeals for the District of Columbia Circuit. (Benton Foundation, represented by this author, is one of the petitioners in the case.) Next week, on August 27, a group of tech industry companies which have intervened in support of the petitioners will file their brief, along with a dozen or so amici curie (friends of the court) briefs from scholars and public interest groups who will appear as friends of the court.

The other side will present their defense soon thereafter. The FCC and the United States (which are denominated as “respondents”) will file an opposition brief on October 11. Internet service providers (ISPs) and their trade associations will file their own intervenors’ brief supporting the government the next week, as will their supporting amici.  After reply briefs are filed on November 16, the case will be set for oral argument, probably in the first month or two of 2019. A decision could be issued by mid-summer, perhaps earlier.