Opening Day at the Court of Appeals

[This article was originally published on August 22, 2018]

Aug 20, 2018 was Opening Day for the litigation appealing the Federal Communications Commission’s December 2017 network neutrality decision. 

The petitioners are divided into “governmental” and “non-governmental” groups for the filings. The 22 governmental parties are states, counties as welI as the California Public Utility Commission. In addition to the Benton Foundation, the 13 non-governmental petitioners are business and public interest organizations including, among others, Mozilla, Public Knowledge, and a trade association of small telecommunications providers called INCOMPAS. Although these parties are in agreement with each other, there are practical reasons for separate filings; governmental bodies generally cannot file jointly with private parties. In addition, the two-brief structure enables the governmental parties to emphasize matters of unique concern to them.

Broadly speaking, there are three somewhat overlapping categories of challenges: legal, procedural, and factual. The briefs also point to several defects in the agency’s fact-finding as to the evidence it did consider. The first round of briefing in the network neutrality case demonstrates that, at the least, there is a non-frivolous case for reversal.