Court Denies ‘Premature’ Challenges

4/11/2011 12:01 AM Eastern

WASHINGTON — Verizon Communications said it will
refile its challenge to the Federal Communications
Commission’s network-neutrality rules, most likely
again in the federal appeals court that denied the
initial challenge as premature.

The U.S. Court of Appeals
for the District of Columbia
last week dismissed Verizon
and wireless firm MetroPCS’s
challenges, because the rules
have not yet been published in
the Federal Register.

The companies had argued
that the FCC’s rulemaking was
a material change to their licenses, and so could be
appealed immediately to the D.C. appeals court on
those grounds, rather than as a rule change; they did
so in January. Opponents of that move, including the
Media Access Project (MAP), had said the complaint
was “forum-shopping” and should be dismissed.

“The challenged order is a rulemaking document
subject to publication in the Federal Register, and
is not a licensing decision ‘with respect to specific
parties,’ ” the court said.

That means challenges to the decision can be filed
in different courts, but not until the FCC publishes
the rules in the Register, which in this case means
no earlier than May 10. It likely won’t be nearly that
soon, as that would assume the FCC took only one
day to review the comments on the rules due April
10; that the Office of Management and Budget
took only a day to review them after its own 30-day
comment period is triggered April 10; and the Federal
Register published them the on same day.

Court challenges cannot be filed until the end of
May at the earliest; June is a more likely timeframe.

“We are pleased the D.C. Circuit Court of
Appeals has agreed with the Commission
that Verizon and MetroPCS were premature in
challenging the Open Internet framework,” FCC
spokesman Robert Kenny said.

A Verizon spokesperson noted that the court did
not say it could not seek exclusive jurisdiction in the
D.C. court, which it will likely do. “[The court] left
open the question of whether exclusive jurisdiction is
still possible,” the spokesman said.