Verizon Tests the FCC on Network Neutrality


Washington —It was legal deja vu all over again on
the network-neutrality front last week as a major Internet-
service provider challenged the Federal Communications
Commission’s authority to regulate how network
operators manage the flow of
Web traffic.

But this time, it wasn’t Comcast,
which had just promised
the FCC it would abide by new
network-neutrality rules until
2018 — an eternity in new-media

Verizon Communications’
new legal challenge to the FCC’s
network-neutrality rules looked
extremely familiar. It was filed
in the same court — the U.S.
Court of Appeals for the D.C.
Circuit — as Comcast’s challenge
to a 2008 FCC decision
which found the MSO violated
agency policy by blocking and
degrading the file-sharing application

The telco even sought the
same judges who overturned
the FCC and used the same lawyer
who won Comcast’s case.


Verizon’s suit was not a huge
shock. Many industry players,
including Comcast, had given
grudging support to the rules,
or at least opted not to overtly
oppose them. Verizon, though,
had said the commission was implementing sweeping new
regulation of wireless networks that would be “harmful to
consumers and the nation.”

The New York-based telco appealed the Dec. 21 adoption
of rules that expand and codify the FCC’s networkneutrality

Verizon argued in its appeal
that the FCC’s Dec. 21 order exceeds
its authority, is arbitrary
and capricious, is an abuse of
its discretion and is unconstitutional.
It asks the FCC to vacate
the order and “provide such additional
relief as may be appropriate.”

What was surprising was Verizon’s
timing. Rather than fi le
against the imposition of regulation,
which must await the
publication of the rules in the
Federal Register — something that has
yet to happen — Verizon challenged
the rules as a modification
of its wireless license.
Under that provision of the law,
said a source familiar with the
telco’s thinking, it had to file
the challenge by last week or
miss a filing deadline.

By taking that legal track,
Verizon is trying to get the case
heard in the D.C. Circuit. If the
case were a challenge to the
regulations, it could be challenged
in other circuits that
might not be as friendly to Verizon’s

Media Access Project’s Andrew Schwartzman saw Verizon’s
move as circuit-shopping. “Under this bizarre legal
theory,” he said, “virtually every FCC decision would
wind up in one court [the D.C. circuit].”

Added Public Knowledge legal director Harold Feld:
“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. Verizon also asked for the
same judges that ruled against the FCC in the Comcast-
BitTorrent case.”


A source familiar with Verizon’s thinking conceded that
having the case heard in the D.C. Circuit was key to the
telco’s move to challenge the decision on license-modification grounds.

That was fine with Hill Republicans atop the House Energy
& Commerce Committee and the Communications
Subcommittee, who were pushing others to follow Verizon
to the courthouse.

“We welcome the decision by Verizon, and hopefully
others, to demand their day in court to block the FCC’s
misguided attempt to regulate the Internet,” said Rep. Fred
Upton (R-Mich.), the House Energy and Commerce Committee
chairman; Rep. Greg Walden (R-Ore.), the Communications
Subcommittee chairman; and Rep. Lee Terry
(R-Neb.), vice chairman of the Energy and Commerce

The top Democrats on the House and Senate Commerce
Committees, which oversee the FCC, said they were “disappointed”
that Verizon had chosen to challenge the FCC’s
new network neutrality rules in court.

“Verizon has the legal right to do this, but we are disappointed
that they filed suit,” said Senate Commerce Committee
Chairman Jay Rockefeller (D-W. Va.) and ranking
House Energy & Commerce Committee member Henry
Waxman (D-Calif.) in a joint statement. “We support the
FCC’s efforts because they will protect consumers and provide
companies with the certainty they need to make investments
in our growing digital economy.”