[Updated] Petitions for Review Initially Consolidated in the Ninth Circuit and Then Transferred to the DC Circuit – Initial Submissions and Motions Due April and May; Briefing Schedule Set Through November

A lottery conducted by the MDL Panel resulted in the selection of the Ninth Circuit to hear all the Petitions for Review of the Internet Freedom Order. The Ninth Circuit’s current schedule shows May 29 as the due date Petitioners’ and supporting intervenors’ opening briefs, with June 28 as the due date for the FCC’s response and supporting intervenors’ briefs. Petitioners and their intervenors may file an optional reply brief 28 days after the response briefs are served.

UPDATE: The group of petitioners who filed initially in the DC Circuit have moved to transfer the consolidated review proceedings from the Ninth to the D.C. Circuit “in the interest of continuity” and to “ensure that ‘anomalous results’ from having a different circuit review a closely-related matter will be avoided.” Specifically, “this case is the fourth, ‘follow-on’ phase in the review of the Federal Communications Commission’s ‘network neutrality’ actions; all prior phases have been adjudicated by the D.C. Circuit.”

It may be that petitioners believe the DC Circuit would be more inclined to vacate the current Internet Freedom order: “The [Internet Freedom] Order largely repeals the 2015 rules—in doing so, the Order grapples with, and attempts to account for, the D.C. Circuit’s decisions in Comcast, Verizon, and USTA, citing those opinions no less than forty-seven times. In other words, this is a case where essentially the same parties are seeking review of the same essential issues that have arisen in multiple inter-related proceedings.”

The two petitioners who filed initially in the Ninth Circuit did not join in the request but “do not object” to transfer to the DC Circuit. The FCC also does not object.

2nd Update: On March 28, 2018, the Ninth Circuit agreed to transfer the consolidated review proceedings “back” to the D.C. Circuit. We will follow up when a new briefing schedule is established.

3rd Update: Initial submissions and procedural and dispositive motions due end of April and early May. Briefing schedule to follow.

4th Update: The D.C. Circuit issued its briefing order setting the timing for petitioners, the FCC, and intervenors to file their initial briefs and replies along with specified word counts. With the final filings in the cycle due at the end of November, oral argument will likely be scheduled late spring or early summer.

5th Update: Oral argument has been scheduled for February 1, 2019 at 9:30 am. Per usual rule, the makeup of the panel should be released 30 days prior, or January 2.