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Summary:

MetroPCS followed Verizon in contesting the FCC’s network neutrality order that sets rules around when an ISP can discriminate against traffic flowing across its network. The FCC’s decision to avoid reclassifying broadband has left the fate of web innovation in the courts’ hands. But which court?

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MetroPCS has followed Verizon in filing a lawsuit in the United States Court of Appeals for the District of Columbia contesting the Federal Communications Commission’s network neutrality order that sets rules around when an ISP can discriminate against traffic flowing across its network. The rules, which were approved in December, are already facing a legal challenge from Verizon, as I reported last week. In that post I said:

Verizon is arguing the FCC doesn’t have the legal authority to implement such rules, something legal scholars have questioned in the wake of a ruling by the same court that Verizon has appealed to, which said the FCC didn’t have the legal authority to censure Comcast for blocking P2P traffic on its network. The argument here is important, but the underlying goal in this lawsuit, and with others expected to be filed in the coming weeks, is finding a sympathetic court to hear the inevitable appeals interested parties will make.

The efforts by MetroPCS and Verizon are an effort to get their cases heard by a court that has already proved hostile to the FCC’s arguments that it has the legal authority to enforce network neutrality and analysts are pretty doubtful the FCC will stand a chance if the DC Circuit Court gets to hear the case. A report issued this morning by Stifel Nicolaus said:

While the FCC wrote its Open Internet order legal justifications that try to address the D.C. Circuit’s objections in the Comcast/BitTorrent ruling, we continue to believe it’ll have a harder time making its case before that court, particularly if it’s heard by the same three-judge panel that last year rejected the Commission’s statutory justifications in the related Comcast/BitTorrent ruling. Verizon has asked that the same panel hear its appeal.

In the meantime, those seeking to challenge the network neutrality rules in a more favorable venue may be waiting until the rules are printed in the Federal Register (which is the normal course of action) and they will then attempt to file suit in California or courts in other states that might have more sympathetic interpretations of the 1996 Telecommunications Act that is the heart of the FCC’s authority. For example, challenges to the Comcast decision were filed in the 2nd, 3rd, and 9th circuits (in New York City, Philadelphia and San Francisco respectively). If the FCC had pushed forward and done the politicking required to reclassify broadband, perhaps its network neutrality rules wouldn’t have been built on such questionable grounds. But it looks like it took the easy way out, and now a lottery system to decide which court hears the case may end up determining the future of innovation on the web.

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  1. Title II doesn’t make the FCC’s job any easier with net neut, as the net neut issues are above the Title II technology-specific rules in the Communications Act. Comcast’s RST spoofing, for example, is something that an independent ISP can do through wholesale access to the cable plant.

    Isn’t it outrageous that MetroPCS proposes to offer a cheap, competitive, and limited plan for Internet access? How dare they challenge the dominant carriers.

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  2. [...] published in the Federal Register,catching the FCC and pro-net neutrality groups off guard. As I wrote in an earlier story, Verizon hoped to have the same judges who ruled the FCC has no authority to dictate what ISPs can [...]

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