Federal Court Dismisses Verizon, Metro PCS Net Neutrality Appeals

WASHINGTON, April 5, 2011 – The United States Court of Appeals for the District of Columbia Circuit dismissed a suit Monday seeking to overturn the Federal Communications Commission’s recent net neutrality rules, finding that the appellants in the case filed their appeal prematurely.

The appeal challenged the FCC’s authority to institute the Open Internet Order it issued in December.  Appellants Verizon and Metro PCS argued that the FCC’s new rules would, if instituted, impermissibly modify the terms of their wireless spectrum licenses.

The Order, which the Commission passed by a 3-2 vote in December of last year, provides three guidelines by which Internet Service Providers (ISPs) must abide in their offerings to consumers.  First, ISPs must provide services in a transparent manner by disclosing their network management practices and performance characteristics.  Second, network providers must not block lawful content from their customers, and third, providers may not unreasonably discriminate by prioritizing certain network traffic without sufficient reason.

The D.C. Circuit – the court that last year struck down the FCC’s attempt to impose net neutrality rules on Comcast – did not reach the merits of the arguments in dismissing the case.  Rather, the court shot down the carriers’ efforts to block implementation of the net neutrality rules on the procedural basis that the companies filed their appeals too early.

Parties may not file appeals to FCC rules until those rules are published in the Federal Register.  Though the Commission voted on the Order in December, it still has not appeared in the Federal Register.

The dismissal leaves both carriers the option of refiling their actions once the rules have been published.

Verizon spokesman, Ed McFadden, chalked the dismissal up to an ambiguity in the Commission’s rules for filing appeals.

“This is one more procedural step,” said McFadden on Monday. “We wanted to make sure we preserved and protected our rights, so we filed [the appeal] immediately.  When the rules are published in the Federal Register, we will refile.”