FCC Asks D.C. Circuit Not to Move in Haste on Net Neutrality Challenges
A senior FCC official said Friday Verizon and MetroPCS filed challenges to the net neutrality rules too early, because the text of the order hasn’t been published in the Federal Register. The commission asked the U.S. Court of Appeals for the District of Columbia Circuit to put off a deadline to respond to a motion by Verizon that the case go to the panel that heard the Comcast case.
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"The rules that govern when and how parties may challenge FCC orders are clear, and Verizon and MetroPCS filed too early when they challenged the Open Internet order,” a senior agency official said in a written statement.
"Verizon will respond in due course,” a company spokesman said. A MetroPCS spokesman said the company was reviewing the situation. Both carriers argued that the challenge was timely, since the rules affect spectrum licenses that the companies hold and FCC rules require an appeal of licensing and other adjudicatory decisions within 30 days of the commission’s release of an order, rather than after publication. The net neutrality order was released Dec. 23.
The FCC filed a motion on Friday asking the D.C. Circuit to defer a decision on which judges would hear Verizon’s challenge. It asked that, “in the interests of efficiency and conservation of resources, the Court defer the FCC’s response to and the Court’s consideration of Verizon’s motion until it is clear whether the case will be heard in this Court,” said a motion filed by Joel Marcus of the FCC Office of General Counsel. If the court dismisses the case, “any resources expended on the panel-assignment issue will have been wasted,” the filing said.
The commission also noted that it remains unsettled which court of appeals will hear the case if other challenges are filed elsewhere. “Given the possibility of a forum-selection lottery … it is the prudent course to defer a response to Verizon’s panel motion until it is clear whether the case will be heard here,” the FCC said.
"This is a very small step,” said Andrew Schwartzman, senior vice president of the Media Access Project, which sought stricter net neutrality rules than those adopted by the FCC. “The commission simply says in these motions that Verizon and MetroPCS jumped the gun by filing appeals prior to the publication in the Federal Register. It notes that they are free to refile once the order is published. Assuming that the court agrees with this motion, and they refile (which they will), the commission will than have to file a new motion to dismiss addressing the larger question” of whether this is “a 402(a) case, a 402(b) case, or both.”