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Understanding Verizon v. FCC

By 5 April 2011 2 Comments

The DC Circuit yesterday dismissed the appeals of the FCC Net Neutrality order filed by Verizon and MetroPCS on the grounds that they were filed prematurely – no appeal can be taken until the order is published in the Federal Register, an event that has not yet occurred.

It would be a mistake to regard this as a defeat for the companies. Their decision to file an appeal at this point was a precautionary move taken because of the complex procedural tangle that surrounds issues of finality and appealability.  [For the details, see Which Court Gets to Hear the Net Neutrality Appeal? (Jan. 21); More on the Verizon Appeal of the Net Neutrality Regulation (Jan. 24); Update: Appeals of the FCC Net Neutrality Rule (Feb. 3).]

Had the companies failed to file, they would have left the door open for the FCC to argue later that they should have filed earlier, and that their failure to do so had forfeited the chance to argue that the appeal must be heard in the DC Circuit because it involves licensing. Now, that possible attack is barred, and the court’s opinion explicitly left undecided the issue whether the DC Circuit is the only appropriate forum for the appeal. The crucial language in the opinion is: “Regardless of whether the order is reviewable by way of a petition for review, 47 U.S.C. § 402(a), or a notice of appeal, 47 U.S.C. § 402(b), the prematurity is incurable.”

So the appellants are well-satisfied. They would have preferred an immediate and total win, of course, but that was never a likely or expected result.