Net Neutrality Groups Take Aim at Verizon

PK, Free Press, MAP accuse Verizon of playing "legal games"

By John Eggerton -- Broadcasting & Cable, 1/20/2011 5:52:50 PM

Public Knowledge accused Verizon of playing legal games with the Open Internet issue Thursday, and Free Press called it forum shopping under a "bizarre legal theory."

Those were reactions to Verizon's announcement that it had filed suit against the FCC's Dec. 21 adoption of expanded and codified network neutrality rules.
 
"Under this bizarre legal theory," said Media Access Project's Andrew Schwartzman, "virtually every FCC decision would wind up in one court. Verizon has made a blatant attempt to locate its challenge in a favorable appeals court forum."
 
Since Verizon treated its appeal as one of a license modification rather than one adopting regulations, Schwartzman pointed out, it would have to be heard in the D.C. Circuit--the same one that vacated the FCC's Comcast decision and questioned its defense of Internet regulatory authority.
 
"The company's theory assumes that all agency actions changing rules are ‘modifications' to hundreds of thousands of licenses," said Schwartzman. "This would insure the case remains in the District of Columbia Circuit, and keeps others from seeking review in different courts."
 
Public Knowledge agreed, saying Verizon was trying to "play legal games."
 
"Verizon is trying to be too cute in trying to pick not only the venue for the challenge to the rules, but also to pick the judges to hear it," said Public Knowledge Legal Director Harold Feld.
 
Verizon asked for the same judges that threw out the Comcast case to hear its appeal.

"The court should see through this ploy and reject Verizon's attempt to pick the home field for its appeal," said Feld.

According to a source familiar with Verizon's thinking, if the company been challenging the regs, rather than the "license modifications," it would have had to wait until the rules were published in the Federal Register to challenge them. But with the modification challenge, which is under a separate section of the legal code, the 30-day shot clock for appeals was triggered by the Dec. 21 public notice of the vote.
 
That source conceded that having the case heard in the D.C. Circuit was key to Verizon's decision to challenge the decision on license modification grounds.