Parties file unopposed motion to move net neutrality appeals from 9th Circuit to D.C. Circuit

A week after numerous appeals concerning the Federal Communications Commission's decision to rescind internet regulations known as "net neutrality" were assigned to the 9th U.S. Circuit Court of Appeals, parties in the litigation have requested the consolidated legal challenge be moved to the U.S. Court of Appeals for the District of Columbia.

In an unchallenged motion filed Friday, attorneys for private technology companies, internet-focused interest groups and several states told the 9th Circuit that existing FCC case history and the location of numerous parties and counsels of record made a switch to the D.C. Circuit a logistically sound decision.

The U.S. Judicial Panel on Multidistrict Litigation randomly assigned the appeals to the 9th Circuit on Mar. 8 after challenges to the decision to repeal net neutrality had been filed in both the D.C. and 9th Circuits.

Ten technology companies, organizations and states filed their appeals in the D.C. Circuit.

The County of Santa Clara and the California Public Utilities Commission filed challenges in the 9th Circuit. County of Santa Clara, et al. v. Federal Communications Commission, et al., 18-70506 (9th Cir., filed Feb. 22, 2018).

In the motion for transfer, attorneys noted that the D.C. Circuit has in recent years decided three major challenges pertaining to the FCC's jurisdiction over network neutrality and data throttling, the process of deliberately slowing internet speeds.

D.C. Circuit Judge David S. Tatel wrote two of the decisions cited by the moving parties.

In 2010, he authored a majority opinion in which the court found that the FCC had not justified its authority to prohibit the telecommunications giant Comcast from throttling internet traffic.

Tatel also wrote a 2014 decision in a case that followed the implementation of network neutrality rules issued by the FCC based on Tatel's 2010 guidance. His opinion vacated those new rules, at which point the FCC revised its guidelines, again turning to Tatel's reasoning.

In doing so, the FCC categorized internet service providers as common carriers and prohibited them from deliberately slowing internet access in 2015. A third challenge to those regulations made its way to the D.C. Circuit in 2016. Tatel and fellow circuit judge Sri Srinivasan upheld the 2015 regulations.

"[T]his is a case where essentially the same parties are seeking review of the same essential issues that have arisen in multiple inter-related proceedings," wrote Steptoe & Johnson LLP partner Markham C. Erickson, who is based in Washington, D.C. and represents Mozilla Corp.

The FCC rescinded its 2015 regulations in December 2017, after President Donald J. Trump appointed long-time net neutrality critic Ajit Pai to chair the commission. The motion was joined by 34 other petitioners, among them 22 states and the District of Columbia.

It also noted that Free Press, Open Technology Institute at New America, Public Knowledge, Ad Hoc Telecommunications Users Committee and Center for Democracy & Technology, petitioners in the case challenging the recession of the net neutrality rules, reside within the D.C. Circuit.

Lawyers for Vimeo Inc., Mozilla Corp., Etsy Inc., Coalition for Internet Openness, Benton Foundation and National Hispanic Media Coalition are represented by D.C. Circuit lawyers.

Last Thursday, the 9th Circuit consolidated the appeals and requested that briefing on the two sides be made as uniform as possible. Now, the court must determine whether to send the case to its sister circuit in the nation's capital.

If the court so choses, the appeals brought by Santa Clara and the California Public Utilities Commission will also move to the D.C. Circuit.

County attorneys said they did not oppose the motion.

The commission did not responded to a request for comment Monday.