Cybersecurity Policy Report, SZ DJI Challenge of ‘Covered List’ Designation Should Be Dismissed, FCC Says, (May 5, 2026)

By Lynn Stanton

The FCC has urged the U.S. Court of Appeals for the Ninth Circuit (San Francisco) to dismiss SZ DJI Technology Co. Ltd.’s “incurably premature” petition for review of a staff-level decision to add the company’s communications and video surveillance equipment and services to the agency’s “covered list” of equipment and services deemed to be a national security risk to the nation’s communications networks.

The FCC’s Public Safety and Homeland Security Bureau announced the addition of foreign-made uncrewed aircraft systems (UAS) and UAS critical components, as well as all communications and video surveillance equipment and services produced by DJI, to the covered list in December in a public notice (PN) in WC docket 18-89, ET docket 21-323, and EA docket 21-233.

SZ DJI has already asked the FCC to reconsider the decision, arguing that the FCC exceeded its statutory authority, failed to follow statutorily required procedures, and violated the Fifth Amendment (CPR, Jan. 23). When SZ DJI filed its challenge with the court, the FCC had responded with a motion to dismiss in early March. Both parties received extensions of the deadlines for subsequent filings.

In a filing with the Ninth Circuit yesterday, the FCC said, “DJI provides no sound reason why the Court should not swiftly dismiss its incurably premature petition for review. As explained in our motion, this Court’s precedent holds that a ‘fatally premature’ petition does ‘not confer jurisdiction’ and that the Court ‘must dismiss the petition for review for lack of jurisdiction.’ Sierra Club v. U.S. NRC, 825 F.2d 1356, 1359, 1363 (9th Cir. 1987) (emphasis added); see Mot. 2, 11-12,” Reply in Support of Respondents’ Motion to Dismiss, SZ DJI Technology Co., Ltd., and DJI Service LLC v. Federal Communications Commission and United States of America, No. 26-1029 (May 4, 2026).

It added that its initial motion to dismiss had “further explained that DJI’s petition for review is fatally premature for two independent reasons, both straightforwardly compelled by both statute and judicial precedent. First, DJI impermissibly seeks judicial review of nonfinal action that remains pending before the agency. See Mot. 8-10. Second, it impermissibly seeks review of staff-level action that has not yet been addressed by the full Commission. See Mot. 10-11. DJI strains to resist these conclusions, but none of its arguments withstand scrutiny.”

DJI had argued that the public notice it was challenging was final because it had “here-and-now” consequences. “That position is wrong. In Locomotive Engineers, for example, unions challenged agency orders that allowed certain trains to operate using non-union crews, ‘effective “immediately upon consummation of”’ proposed mergers; the Supreme Court held that a motion to reopen ‘render[ed] the orders under reconsideration nonfinal,’ even though the order was by then already in effect and trains were running with non-union crews,” the FCC said.

“To the extent DJI thinks it unfair that the Public Notice remains in effect, that is in no small part a problem of its own making, because DJI never asked the agency to stay the Public Notice while it seeks further review,” the FCC added.

It also pointed out that DJI was seeking review of a staff-level decision before the full Commission had reviewed it.

As for DJI’s request for abeyance in lieu of dismissal, the FCC said the company had identified “no principled basis for its plea.

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