Washington Prowler

The FCC’s Cynical Forum Shopping

Anything to stack the deck in favor of "net neutrality."

By 1.19.11

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In an unusual step last week, the Federal Communications Commission released public guidance in an effort to encourage "forum shopping" for lawsuits challenging the FCC's order to regulate the Internet.

Forum shopping is the practice litigators use to get their cases heard in a court -- in this case, a federal court -- they believe will more likely deliver a favorable ruling. But in this case something else is at work. "The FCC knows its jurisdiction over regulating the Internet is tenuous at best, and it is hoping that its friends will file suits with a number of federal courts across the country," says a telecommunications attorney in private practice in New York. "The FCC is gambling that it will get a more sympathetic hearing that way."

The FCC's "Public Notice" provides a virtual road map for groups that might want to file suit over the so-called "Net Neutrality" order that the regulatory body approved in late December. The FCC doesn't even hide the fact that it is encouraging groups to jump-start the "judicial lottery procedure," which would ensure that the FCC has a shot at a more friendly venue to hear its defense for regulating the Internet.

For example, if three different entities or individuals file three separate lawsuits in three different federal court districts involving the same issue, in this case the FCC net neutrality order, the cases are essentially placed together and a lottery takes place to determine which federal district court will hear the case.

"Look, this isn't anything new; the Department of Justice has at times forum shopped," says the New York attorney. "You saw it with some terrorism cases. But I can't think of a time when a federal agency sent out a kind of 'wink, wink, nod nod' press release that encouraged others to file with different federal courts so the agency can rig the system for a friendlier legal venue. I wouldn't go so far to say it's unethical, but it's highly unusual. If I were in Congress, I'd be demanding an explanation, and if I were a federal judge I'd sure be annoyed at the agency for gamesmanship." 

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