Introduction

In Direct Action for Rights and Equality v. FCC, a consolidated set of petitions arising from the Federal Communications Commission’s 2024 order regulating incarcerated people’s communications services (IPCS), the First Circuit resolved a threshold venue dispute with system-wide implications for multi-circuit agency review. The court held that once the Judicial Panel on Multidistrict Litigation (JPML) designates a court under 28 U.S.C. § 2112(a)(3) and the agency files the administrative record there, all petitions “shall” be transferred to that court pursuant to § 2112(a)(5). Critically, the court rejected attempts to collaterally attack the JPML’s lottery by arguing that the statutory prerequisites for random selection were not satisfied.

The parties spanned public-interest organizations (Direct Action for Rights and Equality, Pennsylvania Prison Society, Criminal Justice Reform Clinic), providers (Securus Technologies, LLC; Pay Tel Communications, Inc.), states and sheriffs (including Indiana, Louisiana, Texas, and others), and industry intervenors (Global Tel*Link d/b/a ViaPath Technologies; National Sheriffs’ Association). The Respondents were the FCC and the United States. Although the court is holding the merits in abeyance due to potential forthcoming agency action that may partially moot the disputes, it addressed venue now because the forum could affect future petitions challenging any new, superseding FCC order concerning IPCS.

Summary of the Opinion

Per curiam, the First Circuit concluded that the petitions for review are properly before it. The court:

• Determined there is no basis to require transfer of the consolidated petitions to the Fifth Circuit as a matter of law.
• Rejected providers’ two “mandatory transfer” theories premised on the timing of petitions, the entry of the agency order, and the scope of the JPML’s authority under § 2112(a).
• Held that after the JPML randomly designated the First Circuit and the FCC filed the record here, § 2112(a)(5) obliged other courts to transfer related proceedings to this Circuit; a collateral attack on the JPML’s selection is not cognizable.
• Declined, on the present record and in the absence of a pending request, to exercise discretionary transfer “in the interest of justice” under § 2112(a)(5), noting this court’s familiarity with the procedural history and issues.
• Left merits issues, including challenges to the IPCS rate caps set under the Martha Wright-Reed Act (MWRA), for later resolution while holding the petitions in abeyance pending potential new FCC action.

Analysis

Background and Procedural Setting

The FCC released an order on July 22, 2024, setting new rate caps for IPCS and dismissing as moot Securus’s pending petitions for clarification and waiver (filed at the agency). On August 26, 2024, the FCC published in the Federal Register only the portion of the order disposing of the clarification and waiver petitions. Within ten days, Securus filed a petition for review in the Fifth Circuit challenging those denials; public-interest petitioners filed protective petitions in the First, Third, and Ninth Circuits, indicating they sought to challenge the still-unpublished rate-setting portions once reviewable.

On September 16, 2024, the FCC notified the JPML under § 2112(a)(3). Two days later, the JPML randomly selected the First Circuit, and the FCC filed the administrative record here. On September 20, 2024, the FCC published the remainder of the order in the Federal Register. Within sixty days, additional petitions (including from Securus and Pay Tel, and renewed petitions by the public-interest petitioners) were filed in various circuits and transferred to the First Circuit under § 2112(a)(5).

Providers repeatedly sought transfer to the Fifth Circuit; the First Circuit denied those motions without prejudice and directed the parties to brief “gating” issues, including venue. A mandamus petition to the Supreme Court seeking to compel transfer was denied. After argument in October 2025, the FCC noticed a draft order that could moot aspects of the petitions, prompting the First Circuit to hold merits in abeyance while deciding the forum issue now.

Precedents and Authorities Cited

• 28 U.S.C. § 2112(a)(3) and (a)(5):
  • § 2112(a)(3) authorizes the JPML to randomly designate a court “from among the courts of appeals in which petitions for review have been filed and received within the ten-day period,” and directs the agency to file the administrative record there.
  • § 2112(a)(5) then requires that “all courts” in which proceedings are instituted with respect to the same order “shall transfer” those proceedings to the court in which the record is filed, while allowing the designated court to transfer “in the interest of justice.”
• 28 U.S.C. § 2344 (Hobbs Act):
  • Provides that an “aggrieved” party must file a petition “within 60 days after” the “entry” of a “final order,” with “entry” keyed to agency rules on notice (a timing question the court ultimately did not resolve here).
• 47 C.F.R. § 1.4(b)(2):
  • FCC rule stating that “entry” of an adjudicatory decision occurs upon “release,” which providers invoked to argue that the ten-day period for the JPML lottery had not been triggered by the Federal Register publication.
• Blanca Telephone Co. v. FCC, 743 F.3d 860 (D.C. Cir. 2014):
  • Cited for the proposition that “entry” and the start of the Hobbs Act filing clock is governed by agency rules (release versus Federal Register publication), a premise providers used to contest the JPML lottery’s predicates.
• CBS v. United States, 316 U.S. 407 (1942):
  • Cited for rulemaking versus adjudication distinctions (general applicability and future effect), relevant to the parties’ dispute about whether the order’s disposition of Securus’s petitions was an adjudication or rulemaking.
• United States v. Zannino, 895 F.2d 1 (1st Cir. 1990):
  • Quoted for the principle that undeveloped arguments are insufficient; applied to providers’ failure to furnish legal authority for a collateral attack on the JPML’s selection.
• Public Interest Research Group v. FCC, 522 F.2d 1060 (1st Cir. 1975):
  • Referenced to support the discretionary-transfer analysis and the salience of a court’s familiarity with the case.
• Buckeye Partners, L.P. v. FERC, No. 22-60100, 2022 WL 1528311 (5th Cir. May 13, 2022) (per curiam):
  • Cited in a cf. parenthetical in connection with transfer considerations.

Legal Reasoning

The providers advanced two related theories for mandatory transfer to the Fifth Circuit. Both failed.

1) The “JPML prerequisites were not met, so § 2112(a)(1) picks the Fifth Circuit” theory

Providers argued that the ten-day window for JPML random selection runs from “entry” under § 2344, and that the relevant “entry” occurred when the FCC released the adjudicatory portion of the order on its website (47 C.F.R. § 1.4(b)(2)), not when that portion was later published in the Federal Register. In their view, because petitions were not filed within ten days of that “entry,” the JPML’s lottery was unauthorized; therefore, the proper venue is the court where the first petition “was first instituted” under § 2112(a)(1)—here, the Fifth Circuit, where Securus filed first.

The First Circuit rejected the argument at step one: once the JPML designates a court and the agency files the administrative record there, § 2112(a)(5) commands that all related proceedings “shall” be transferred to that court. The record indisputably was filed in the First Circuit pursuant to the JPML’s order and remains there. That filing fixes venue. The providers’ contention would require the First Circuit to collaterally review and effectively nullify the JPML’s selection by reevaluating whether the statutory lottery predicates were satisfied. But the providers cited no statutory mechanism authorizing a collateral attack on the JPML’s § 2112(a) designation (contrasting § 1407(e), which expressly provides for review of JPML orders in the district-court MDL context, with § 2112(a), which does not). Absent a legal path for such a challenge, the court would not entertain it.

2) The “public-interest petitions were incurably premature, so only the Fifth Circuit had a timely petition” theory

Providers reframed their timing argument to say the public-interest petitions were “incurably premature,” because they were filed before “entry” of the rate-cap portion of the order (then unpublished), leaving only Securus’s Fifth Circuit petition within the relevant window. The First Circuit again declined to treat that assertion as undoing the JPML’s selection or the First Circuit’s status as the proper forum.

First, jurisdiction over individual petitions does not control venue under § 2112(a); venue follows the record. Second, even if earlier public-interest filings were premature (an issue the court expressly reserved), those petitioners also filed later, concededly timely petitions “within 60 days after” “entry” (upon Federal Register publication of the full order). No party contested jurisdiction over those later petitions, and providers themselves acknowledged the First Circuit has jurisdiction over all petitions except the three early public-interest filings. Because timely petitions challenging the same parts of the order are properly before the First Circuit, any defects in earlier filings do not compel transfer.

Discretionary Transfer

The court noted there was no pending motion to transfer “in the interest of justice” under § 2112(a)(5). It also saw no reason to transfer sua sponte. The First Circuit is now most familiar with the record and the complex procedural posture; no other court—“including the Fifth Circuit”—has comparable familiarity. That practical consideration, recognized in prior transfer cases, weighed against discretionary transfer at this juncture.

Impact

On multi-circuit agency review and forum selection

• Filing of the record fixes venue. Once the JPML designates a court under § 2112(a)(3) and the agency files the record there, § 2112(a)(5) directs all other courts to transfer related proceedings to that court. Parties cannot back-door a venue change by collaterally relitigating whether the JPML lottery’s predicates were satisfied.
• Limited avenues to challenge the JPML’s choice. Unlike the district-court MDL statute (§ 1407(e)), § 2112(a) provides no mechanism for judicial review of the JPML’s designation. Litigants should not assume they can dislodge a JPML-selected forum by arguing the lottery should not have occurred.
• Premature filings do not unravel the lottery. Even if some petitions are deemed premature, the presence of timely petitions for the same order in the JPML-selected court is sufficient to sustain venue. Jurisdictional defects in some filings will not retroactively nullify the designated forum.
• Forum-shopping curbed. The decision reduces incentives to manufacture timing scenarios to steer challenges to a favored circuit, reinforcing § 2112’s centralizing function.

On administrative timing questions

• Entry versus publication unresolved. The court did not decide whether the order’s partial disposition (dismissal of Securus’s petitions) was an adjudication “entered” upon release under FCC rules or a rulemaking tethered to Federal Register publication. That question remains open for another day, but the court’s venue ruling shows that such disputes—while potentially important for timeliness—do not unsettle the JPML’s forum designation once the record is filed.

On the IPCS merits litigation

• First Circuit remains the forum. The consolidated challenges to the FCC’s IPCS order (including rate caps implemented under the MWRA) remain in the First Circuit. The court is holding merits in abeyance due to a potential new FCC order that might partially moot the petitions.
• Potential downstream effects. By resolving venue now, the court avoids uncertainty that could affect where challenges to a superseding FCC order might land. Parties now have a clear forum for ongoing litigation, at least as to the current order.

Complex Concepts Simplified

• JPML “lottery” for agency orders:

  When petitions for review of the same agency order are filed in multiple circuits within ten days, § 2112(a)(3) tasks the JPML with randomly selecting one circuit to hear the consolidated case. The agency must file the record in that circuit.

• “Filing of the record” sets the forum:

  After the JPML makes its random selection and the agency files the administrative record in that court, § 2112(a)(5) requires that all other courts transfer related petitions there. That court may later transfer elsewhere “in the interest of justice,” but other courts cannot keep the case.

• Hobbs Act “entry” and deadlines:

  Under § 2344, petitions must be filed within 60 days of the “entry” of a final agency order. “Entry” is generally determined by the agency’s own notice rules (e.g., the FCC’s rule that adjudications are “entered” upon “release”). For rules of general applicability, “entry” is often associated with Federal Register publication.

• Jurisdiction vs. venue:

  Jurisdiction asks whether the court has legal power to decide a petition (e.g., timeliness, standing). Venue asks which court should hear it. Under § 2112(a), the filing of the record settles venue even while jurisdictional questions are litigated.

• Collateral attack:

  A collateral attack seeks to undermine an order (here, the JPML’s designation) indirectly in a separate proceeding. The First Circuit held the providers offered no legal basis to collaterally challenge the JPML’s selection under § 2112(a).

• Abeyance:

  Holding a case “in abeyance” pauses proceedings while a development (such as new agency action) that could affect or moot issues unfolds. The court did so here, while resolving the venue question to ensure an orderly path forward.

• “Aggrieved” party:

  Only parties “aggrieved” by an agency order may seek Hobbs Act review. The public-interest petitioners filed timely petitions after full Federal Register publication, satisfying the “aggrieved” and timeliness requirements irrespective of any earlier protective filings.

Conclusion

The First Circuit’s decision establishes a clear and administrable rule for multi-circuit agency review: once the JPML designates a forum under § 2112(a)(3) and the agency files the record there, venue is fixed by statute, not by after-the-fact disputes over the timing of individual petitions or the technical “entry” of subparts of an agency order. Collateral attacks on the JPML’s lottery are out of bounds absent a statutory review mechanism. Jurisdictional challenges to particular petitions do not unravel the consolidation; timely petitions by aggrieved parties suffice to keep the case anchored where the record is filed.

Practically, this decision curbs forum-shopping, honors the centralizing purpose of § 2112(a), and promotes efficiency by keeping related challenges in the JPML-selected court. On the merits, the court has not yet addressed the legality of the FCC’s IPCS rate caps under the Martha Wright-Reed Act. But by deciding venue now and declining transfer, the First Circuit ensures a stable forum for any ensuing merits review while the FCC’s potential new order plays out. The key takeaway is procedural but powerful: the combination of JPML designation and record filing is dispositive of venue for consolidated agency-review petitions, and courts will be reluctant to disturb that result absent a compelling statutory basis.