Ninth Circuit Transfers Internet Freedom Challenges to D.C. Circuit
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Wednesday, March 28, 2018

Ninth Circuit Transfers Internet Freedom Challenges to D.C. Circuit

The U.S. Court of Appeals for the Ninth Circuit (San Francisco) has transferred to the District of Columbia Circuit the consolidated petitions for review of the FCC’s December 2017 restoring Internet freedom (RIF) order (TR Daily, Dec. 14, 2017), which reversed the FCC’s 2015 reclassification of broadband Internet access service as a common carrier service and eliminated most of the open Internet rules.

The Ninth Circuit had consolidated the petitions under the challenge brought by the county of Santa Clara, Calif. (18-70506 at the Ninth Circuit). Other petitioners include the California Public Utilities Commission, Mozilla Corp., Vimeo, Inc., Public Knowledge, the New America Foundation’s Open Technology Institute, nearly two dozen state attorneys general, the National Hispanic Media Coalition, NTCH, Inc., the Benton Foundation, Free Press, the Coalition for Internet Openness, Etsy, Inc., the Ad Hoc Telecommunications Users Committee, and the Center for Democracy and Technology.

The cases were assigned to the Ninth Circuit by the Judicial Panel on Multidistrict Litigation through a lottery, after parties filed their petitions in multiple circuits, including the D.C. Circuit.

The attorneys general of 22 states and the District of Columbia, along with the dozen companies and organizations challenging the RIF order, asked the Ninth Circuit to transfer the consolidated cases challenging the order to D.C. Circuit (TR Daily, March 19). They said in their request that the transfer was “warranted by all of the factors considered by this Court, including the convenience of the parties, the choice of forum made by the majority of the petitioners, and the fact that this Court’s sister Court for the D.C. Circuit has considered virtually identical issues in inter-related proceedings.” Thus, they said, “Transfer is warranted in the interest of continuity.”

They also said that the only two petitioners that did not join in the motion to transfer the cases “do not object to the requested transfer. Respondents Federal Communications Commission and the United States of America also do not object to the requested transfer.”

Today, in a brief order, Circuit Judges Barry G. Silverman, Morgan Christen, and Michelle Taryn Friedland granted the “unopposed motion to transfer these consolidated petitions for review to the United States Court of Appeals for the District of Columbia Circuit.” They directed the clerk to transfer “the consolidated petitions for review and all pending motions to the United States Court of Appeals for the District of Columbia Circuit. Upon transfer of the petition, the Clerk shall close these consolidated cases.”

“The D.C. Circuit is an appropriate venue given its long history with this issue, but we’d fight broadband discrimination even if this case were transferred to the moon,” said Ed Black, president and chief executive officer of the Computer & Communications Industry Association. “We are intervening in this case because CCIA is committed to ensuring that the internet will be governed by the principles of net neutrality and open access.”—Lynn Stanton, lynn.stanton@wolterskluwer.com

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