DJI asks the Ninth Circuit to order the FCC to rule on its Covered List challenge

DJI filed for reconsideration on January 21. The new petition accuses the FCC of "refusing, for nearly a year, to issue a ruling that the agency says is DJI's only path to court." It argues nothing is left to deliberate, because the FCC called updating the list in a 2020 order "a non-discretionary, ministerial act." It cites the FCC's Huawei and ZTE designation decisions, each issued less than six months after a reconsideration request. It also notes one case that took longer, China Unicom, and says that case involved separate Ninth Circuit litigation.

The petition asks for two more things. DJI wants the court to tell the FCC how to read the statutes. DJI argues the four-page assessment behind the listing never mentions DJI, and that it came from an interagency body and not one of the five agencies the law names. "At a minimum," DJI asks the court to make the FCC decide its pending authorization requests for non-drone products. It says those include two microphones and a camera.

The FCC made its case before this petition arrived. On October 16 it renewed its motion to dismiss DJI's earlier case, No. 26-1029. It says the staff-level notice is not a final order and that DJI cannot go to court while its reconsideration request is pending, citing the Supreme Court's September 4 order in NRCC v. Brown. It told the court "there should be no concern about undue agency delay" and said "The Commission is now actively analyzing this record." It added that if the FCC does not act within a reasonable period, DJI may seek relief, but only through mandamus.

DJI's opening brief in the earlier case had been due November 2. On that date DJI filed an opposition asking the court to keep the case on hold while it considers the new petition. DJI cites a Ninth Circuit rule that a motion to dismiss stays the briefing schedule while the motion is pending. The two sides also read a second Supreme Court order differently. In FCC v. Brown, on October 14, the Court stayed a Fourth Circuit mandamus order. The FCC quotes it as saying the Communications Act "does not obligate the Commission to act within a particular timeframe." DJI says that order set a 48-hour deadline, and that the Court's concern was that deadline and discretionary campaign-finance rules, not delay in a ministerial duty.