Court Dismissal of Net Neutrality Suit Wont End Litigation

A federal appeals court in Washington, D.C., has dismissed challenges to Federal Communications Commission rules that were released last year to preserve open access to the Internet and prevent broadband providers from discriminating on their networks.

The U.S. Court of Appeals for the District of Columbia Circuit on Monday ruled that MetroPCS and Verizon Communications filed the lawsuits too early.

The court wrote that the FCCs Open Internet Order is a rulemaking document subject to publication in the Federal Register, and is not a licensing decision with respect to specific parties.” The order will therefore be subject to judicial review upon publication in the Federal Register,” the court explained.

The FCC still has not published the order in the Federal Register; some of the rules are subject to the Paperwork Reduction Act of 1995 and therefore must be reviewed first by the White Houses Office of Management and Budget. 

The decision to challenge the rules before they were published in the Federal Register is perceived by some as a strategic move to get the case heard in front of an appellate court that is perhaps more likely to overturn the FCC. The federal appeals court in Washington, D.C., has done it before on a number of occasions.

Verizons appeals was a blatant effort to steer the case to a sympathetic court, but the judges unanimously agreed that the appeals prematurity was incurable,” said Andrew Jay Schwartzman, senior vice president and policy director of Media Access Project. The future of the Internet is too important for such legal shenanigans. Notwithstanding Verizons ploy, this case will be heard in the right court, at the right time.”

It’s possible a panel of judges outside of Washington will hear court challenges to the rules if companies file appeals in other jurisdictions, such as the U.S. Court of Appeals for the 9th Circuit in San Francisco.  

Although the rules havent yet gone into effect, officially triggering obligations of broadband providers, the FCC has faced criticism on Capitol Hill and elsewhere.

Republicans have moved to repeal the rules through the Congressional Review Act.

FCC critics, including members of the GOP, assert that the agency exceeded its authority and unnecessarily issued onerous rules that will hurt investment. 

But others assert that the rules are necessary to prevent large Internet providers like Comcast and Verizon from discriminating on their broadband networks and blocking competing applications and services.

In December, the FCC voted 3 to 2 to adopt four basic Net neutrality rules that are included in the agencys Open Internet Order.

First, fixed and mobile broadband Internet access service” providers like Comcast, Sprint Nextel and Verizon Communications must make certain public disclosures concerning their network-management practices, performance, and commercial terms.  Second, the order prohibits fixed broadband providers from blocking lawful content, applications, services or non-harmful devices. However, the prohibition is subject to reasonable network management” practices.

Third, mobile-broadband providers cannot block lawful websites or applications that compete with their voice or video telephone services. Fourth, fixed broadband providers are barred from unreasonably” discriminating in transmitting lawful network traffic” over a consumers service. The FCC added a caveat: Reasonable network management shall not constitute unreasonable discrimination.”

The agency implied, but did not state explicity, that it would not tolerate “pay for priority” agreements in which broadband providers would favor certain traffic over other traffic in exchange for compensation from a provider of content or applications.  

The FCC said such an arrangement “would represent a significant departure from historical and current practice.”


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