Court Dismisses Verizon Lawsuit Against FCC; Verizon Promises to Sue Again

A federal appeals court on Monday dismissed anti-net neutrality complaints by Verizon and Metro PCS against the Federal Communications Commission (FCC) on the grounds that the lawsuits were filed too early.

The net neutrality regulations adopted by the FCC in December 2010 do not go into effect until they are formally introduced in the Federal Register, the government's official journal; the FCC has not stated yet when that will happen. Judges Karen Lecraft Henderson, David S. Tatel and Brett M. Kavanaugh of the US Court of Appeals for the District of Columbia said that the commission's net neutrality order is a “rulemaking document … and is not a licensing decision.” The judges said that Verizon appeal's “prematurity is incurable.”

The FCC's order would prohibit broadband carriers from blocking or slowing access to web sites or web-based applications, including those that directly compete with their own services.

Verizon filed its appeal against the ruling on January 20, with Metro PCS joining the company in its challenge soon after. Both telecommunications providers said that the FCC had overstepped its bounds in creating the net neutrality regulations.

“Today's filing is the result of a careful review of the FCC's order,” Verizon Senior Vice President and Deputy General Counsel Michael E. Glover said in a statement in January. “We are deeply concerned by the FCC's assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself.” Verizon believes that the order “goes well beyond any authority provided by Congress.”

But the decision to throw out the case was made on a technicality. Following the ruling, Verizon said it would file another complaint against the FCC once the rules are introduced in the Federal Register. Ed McFadden, a spokesman for the telecommunications company, said the FCC had not been definitive in announcing when appeals against net neutrality could be filed.

“We were unclear on timing and wanted to be sure we covered our bases,” McFadden told The Washington Post.

Robert Kenny, an FCC spokesman, defended the dismissal. “We are pleased the D.C. Circuit Court of Appeals has agreed with the commission that Verizon and Metro PCS were premature in challenging the open Internet framework,” Kenny said. “The commission's policy preserves Internet freedom and openness and strikes the right balance for consumers and businesses across America.”

Following the ruling, Free Press policy counsel Aparna Sridhar said that the media reform group is “gratified that the Court ruled that even powerful companies like these cannot jump the line to have their arguments heard.”

“We expect that Verizon and Metro PCS are not finished trying to undo the FCC's Net Neutrality policy, but 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.”

Andrew Jay Schwartzman, senior vice president and policy director of the Media Access Project, agreed.

“This is hardly surprising,” Schwartzman said. “Verizon tried to 'game the system' by attempting to challenge the FCC's open Internet decision prior to its official release … The future of the Internet is too important for such legal shenanigans. Notwithstanding Verizon's ploy, this case will be heard in the right court, at the right time.”