Last December 21, 2010, the FCC codified the rules for Net Neutrality, and just a month later, the lawsuits started. Verizon and Metro PCS have each filed lawsuits challenging the FCC's Net Neutrality rules. Here’s a quick review.
Verizon filed an appeal on January 20, 2011 in the U.S. Court of Appeals for the District of Columbia Circuit. The appeal challenges the FCC's Report and Order on Net Neutrality rules. The D.C. Court of Appeals may have been selected by Verizon because it has ruled on several cases dealing with the FCC and has more often sided against the FCC.
Michael E. Glover, Verizon SVP and deputy counsel, stated that Verizon has supported the preservation of an open Internet. Upon review of the FCC's rules Verizon believes that the FCC has overstepped its authority. "We are deeply concerned by the FCC's assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself. We believe this assertion of authority goes well beyond any authority provided by Congress, and creates uncertainty for the communications industry, innovators, investors and consumers."
It is interesting that Verizon filed the suit BEFORE the rules were even published in the Federal Register. The FCC thinks the lawsuits are premature.
Verizon's argument in the appeal does not directly contend with the rules. Verizon has taken the step to challenge the rules by claiming that the rules change the terms of existing wireless licenses for the existing wireless spectrum that Verizon presently holds. This may be interpreted that Verizon feels that directly attacking the Net Neutrality rules has a poorer chance than the argument about the wireless license position.
To strengthen the chances of a favorable outcome, Verizon also filed another motion requesting the D.C. appeals court to assign the same panel of judges who presided over the Comcast vs. FCC case to hear the Verizon appeals case. Comcast won this case with this panel of judges.
The FCC has not commented publicly about the court filings. The FCC will likely argue that the rules are not modifications of carrier's existing licenses. An FCC position may be that the court case should begin with a federal district court before it goes on to an appeals court.
If Verizon and Metro PCS prevail in the lawsuits, it is possible that the FCC will continually find itself defending itself against future lawsuits. Some Republicans in Congress are voicing their opposition to the FCC rules. So we may see a battle in Congress that may strive to limit the jurisdiction of the FCC.
I have posted several blogs on this subject, including one entitled, The FCC Net Neutrality Framework: Ready for Prime Time? describing the original four Net Neutrality rules plus the two new rules added last December 2010.
