FCC Scores TKO in First Bout with Verizon on Net Neutrality Rules

WASHINGTON—Score a first round victory for the Federal Communications Commission in its current court battle with Verizon and Metro PCS over net neutrality rules promulgated by the FCC late last year. The victory was based on a technicality; however, since the appeal was dismissed by a D.C. court not on its merits, but because it had been filed too soon.

Verizon has said it intends to file another appropriately timed appeal—after the new regulations have been published in the Federal Register.

In the next round, Verizon will argue that the FCC does not have the regulatory authority to impose the new regulations approved in a 3-2 vote in December called the Open Internet Order. As reported by AVN at the time, “The order creates two classes of service that are subject to different regulatory standards because of their technological differences. One set of regulations applies to fixed broadband networks and the other to mobile wireless networks.”

Specifically, the new regulations state:

* Wireless and wired providers are required to be transparent in how they manage and operate their networks.

* Blocking traffic on the internet is prohibited for both fixed broadband network operators and wireless providers. The provision for each is slightly different.

* Fixed broadband networks cannot block any lawful content, services, applications, or devices on their network.

* Wireless providers are prohibited from blocking all websites, but may block applications and services unless the applications specifically compete with a carrier's telephony voice or video services.

* The blocking rule gives fixed and wireless broadband networks the leeway to reasonably manage their networks.

* Fixed wired broadband providers are prohibited from unreasonably discriminating against traffic on their network.

Expressing a sentiment undoubtedly shared by Verizon, Metro PCS and any number of other carriers who see net neutrality as a threat to their autonomy, one of the FCC Commissioners who voted against the new rule in December, Republican Robert McDowell, referred to the order as “jaw-dropping interventionist chutzpah.”

In fact, Verizon also was trying to get the same three federal appeals court judges who ruled against the FCC in April of last year to hear this case. In the earlier decision, the panel decided in favor of Comcast in its 2008 appeal of an FCC decision prohibiting the cable provider from slowing BitTorrent traffic in an effort to reduce network congestion.

Monday, however, the D.C. court said the FCC's new net neutrality rule requires a separate case, the date for which will be determined when Verizon files its second appeal.