FCC Asks Courts to Dismiss Net Neutrality Petitions as Premature, Won't Seek Lottery for Now

The FCC asked federal courts to dismiss initial challenges to its net neutrality repeal, and said it won't forward them to a Judicial Panel on Multidistrict Litigation for a venue lottery. The petitions for review are "incurably premature" because the repeal order and declaratory ruling haven't been published in the Federal Register, said similar commission motions to the U.S. Court of Appeals for the D.C. Circuit (here), the 1st Circuit (here) and the 9th Circuit (here) posted Monday. Seeking to protect their legal rights due to lingering uncertainty about a filing window, state attorneys general, Public Knowledge, Mozilla and New America's Open Technology Institute filed petitions in the D.C. Circuit, Free Press filed in the 1st and California's Santa Clara County filed in the 9th (see 1801160055). But parties also asked the FCC not to trigger the court lottery until the order is published (see 1801170049). The commission said such petitions aren't ripe until FR publication because the order resulted from a rulemaking and a declaratory ruling had "general applicability," not "particularly applicability," which is a form of informal adjudication subject to a quicker judicial timetable. Its motions recognized that in 2015, the agency forwarded "premature" petitions challenging its net neutrality order to the multidistrict panel, which held a lottery anyway. Given that outcome and the agency's clear-cut procedural views this time, the FCC "determined that the best course here is to await timely-filed petitions before referring any such petitions to the Judicial Panel." Petitioners can refile after publication, the commission motions said.