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
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.