FCC Wins Round One in Battle Over Net Neutrality Rules
The U.S. Court of Appeals for the D.C. Circuit rejected as premature Verizon and MetroPCS’s separate challenges of December’s FCC net neutrality rules, which were made before the order was published in the Federal Register. The decision was a win for the agency, which asked that the challenge be rejected, though future appeals remain likely. Verizon said in January that it would file an additional challenge after the order is published.
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"The challenged order is a rulemaking document subject to publication in the Federal Register, and is not a licensing decision,” the court said in an order. Verizon argued that the D.C. Circuit has exclusive jurisdiction because the order modifies wireless licenses to require compliance with the net neutrality rules (WID Jan 21 p1). MetroPCS made the same argument when it filed with the court a week later (WID Jan 26 p2).
The rules, approved 3-2 Dec. 21, haven’t been published in the Register, effectively staying them without judicial intervention. A commission official said Monday the order can’t be published until the Paperwork Reduction Act process is completed, because both the enforcement and disclosure provisions are subject to the act. Comments are due April 10 on the FCC’s initial 60-day comment period required by the act. The agency then has to review the comments before filing an application at the Office of Management and Budget, which will then put the rules out for comment for an additional 30 days, the official said.
The order by the court is not a surprise, Media Access Project Senior Vice President Andrew Schwartzman said in an email. “Verizon attempted to ‘game the system’ by attempting to challenge the FCC’s open Internet decision prior to its official release,” he said. “It was a blatant effort to steer the case to a sympathetic court, but the judges unanimously agreed that the appeal’s prematurity was ‘incurable,'” he said. “Notwithstanding Verizon’s ploy, this case will be heard in the right court, at the right time."
"I would not read too much into this,” said Public Knowledge Legal Director Harold Feld. “The FCC explicitly chose to object on the grounds that, regardless of which provision of the appeals statute governed, the appeal was premature, so it is not surprising that the D.C. Circuit chose to dismiss on those grounds.” Free Press Policy Counsel Aparna Sridhar said that “we hope that this ruling sends a signal to those companies that their arguments will face close scrutiny, no matter how novel or clever they appear to be.” Consumers Union also praised the decision.
The court’s order leaves many issues unsettled, said Free State Foundation President Randolph May. “Verizon lost a procedural preliminary battle skirmish, and one that is not entirely unimportant,” he said. “But, of course, the war will be fought when a court ultimately hears the merits of the case, which looks to be months away now. And the D.C. Circuit’s decision has nothing to do with the merits."
The FCC is “pleased the D.C. Circuit … has agreed with the Commission that Verizon and MetroPCS were premature in challenging the Open Internet framework,” agency spokesman Rob Kenny said in a written statement. “The Commission’s policy preserves Internet freedom and openness and strikes the right balance for consumers and businesses across America.” Verizon had no comment.