A federal appeals court in Washington, D.C., will hear all challenges of open Internet rules that the Federal Communications Commission adopted last year.
The FCC’s Open Internet Order, or so-called Net neutrality rules, have been appealed in several jurisdictions around the country, but the U.S. Court of Appeals for the District of Columbia Circuit will hear all of the cases. The U.S. Judicial Panel on Multidistrict Litigation, known informally as the MDL Panel, has randomly selected the D.C. Circuit Court to hear the petitions for review, which will be consolidated.
On Sept. 30, Verizon Communications challenged the rules in the D.C. Circuit Court in two separate cases. Other groups that filed petitions for review include Free Press, People’s Production House, Media Mobilizing Project, Mountain Area Information Network and Access Humboldt.
The MDL Panel issued its consolidation order one day after the FCC filed a motion to dismiss one of the cases filed by Verizon Communications.
The motion appeared to represent a strategic move by the agency to limit the chances that the appeal would be heard by the D.C. Circuit Court, which has overturned FCC rules in prior years. In the motion, the FCC acknowledged that Verizon would have its day in court, but the agency explained that the jurisdictional provision that applied could impact whether or not the court in Washington, D.C. would hear the appeal.
“Whether the appropriate jurisdictional provision is Section 402(a) or Section 402(b) matters only because it may (but will not necessarily) determine the forum in which the case will be heard," the FCC explained.
In case No. 11-1355, Verizon filed a petition under a provision that gives the D.C. Circuit Court exclusive jurisdiction over the matter – meaning other federal appeals courts couldn’t hear the case. But the FCC claimed jurisdiction did not lie under the provision cited by Verizon.
The FCC’s motion appears to somewhat of a moot point now since the D.C. Circuit Court was randomly assigned to hear all the petitions for review. Verizon has not yet filed a response to the FCC’s motion to dismiss.
Crafted to preserve the openness of the Internet, the rules will become effective on Nov. 20, roughly 11 months after the FCC voted to adopt them.
The Open Internet Order applies to both fixed and mobile broadband providers. However, fixed broadband providers like Comcast and Verizon face more restrictions than wireless broadband companies, including a prohibition against unreasonably discriminating in transmitting lawful traffic on their networks.
The Democrat-led FCC has asserted the rules were necessary to preserve open access to the Internet.
“The record and our economic analysis demonstrate … that openness of the Internet cannot be taken for granted, and that is faces real threats," the agency wrote in the Open Internet Order. “Indeed, we have seen broadband providers endanger the Internet’s openness by blocking or degrading content and applications without disclosing their practices to end users and edge providers" despite the FCC’s adoption of certain open Internet principles six years ago.
Some critics, including Verizon, argue the rules are unnecessary and will create uncertainty in the communications marketplace. Others like Free Press contend the rules aren't stringent enough.
