Net Neutrality Suit Players Agree to Briefing Schedule

Parties have asked that Verizon, Free Press and MetroPCS be allowed to file separate briefs

By John Eggerton -- Broadcasting & Cable, 4/23/2012 3:37:45 PM

It looks like the legality of the FCC's network neutrality rules will likely be debated through the end of the year in federal court filings.

The parties to the Verizon/MetroPCS/Free Press challenges to FCC network neutrality rules, which have been consolidated into a single case, have agreed on and submitted to the court a schedule for briefs before the U.S. Court of Appeals for the District of Columbia. If the court agrees, the first briefs will be filed July 2 and the final briefs not until Nov. 21 (Thanksgiving is Nov. 22, so it will be a busy Turkey Day run-up for communications lawyers).

The parties have asked that Verizon, Free Press and MetroPCS be allowed to file separate briefs, even though they have all challenged the rules. That is because Verizon and MetroPCS are on opposite sides in a separate challenge to FCC data roaming rules (though the two also want to file a joint brief as well). In that challenge, Verizon and MetroPCS disagree over the FCC's authority to regulate wireless broadband, which is also at issue in the network neutrality rules challenge.

Free Press wants to file separately because it is challenging the rules because it thinks they don't go far enough, not because they go too far, as the others contend.

In addition, the parties say there need to be separate briefs for the pro-FCC interveners in Free Press' challenge to the rules. That is because CTIA, the intervener in the Free Press, is supporting the FCC's decision not to impose its rules fully on mobile broadband and is not addressing or defending the FCC's regulatory authority, while the pro-FCC interveners in the Verizon/MetroPCS challenge support the FCC's statutory authority to adopt the rules, which the cell companies are challenging.

In a challenge launched in January 2011, Verizon argues that the FCC's Dec. 21, 2010, order exceeds its authority, is arbitrary and capricious and an abuse of its discretion, and is unconstitutional as well. It asks that the FCC vacate the order and "provide such additional relief as may be appropriate."  

Most of the new rules don't apply to wireless broadband, but the ones that do are too much for the companies, as is what they say was the FCC's overreach in codifying any regs.

Cable operators generally didn't love the network neutrality rules either and argued they were unnecessary. But they agreed to the compromise proposal when face with the alternative of classifying Internet access as a Title II common carrier service subject to access mandates.