• by Wendy Davis  @wendyndavis, January 25, 2011

Wireless carrier MetroPCS has joined Verizon in asking a federal appellate court to invalidate the Federal Communications Commission's new open Internet rules.

In its court papers, filed Monday with the U.S. Court of Appeals for the D.C. Circuit, MetroPCS argues that the FCC lacks authority to require broadband providers to follow neutrality regulations. In addition, MetroPCS argues that the FCC's new rules are arbitrary and reflect an abuse of discretion.

MetroPCS and Verizon are challenging the FCC's recent 3-2 vote banning all broadband providers -- wireline as well as wireless -- from blocking sites or competing applications, and banning wireline providers from engaging in unreasonable discrimination.

Companies or consumer groups wishing to challenge those rules typically would have to wait until the FCC posts the regulations in the Federal Register -- which has not yet occurred. But Verizon and MetroPCS argue that they are entitled to bring an immediate challenge to the rules in the U.S. Court of Appeals for the D.C. Circuit on the grounds that the FCC's order affects their broadcast licenses.

Observers consider that particular court likely to rule in favor of the telecoms on this issue because it already decided in a separate case that the FCC lacks authority to enforce neutrality rules. In that matter, the U.S. Court of Appeals for the D.C. Circuit vacated an FCC ruling imposing sanctions on Comcast for throttling peer-to-peer traffic. The FCC said that Comcast's traffic-shaping plan violated the neutrality principle that consumers should be able to access all lawful online content, but the appellate court ruled the FCC couldn't enforce that principle because it had classified broadband as an "information" service rather than a telecommunications service.

MetroPCS's appeal comes amid complaints that the company is violating neutrality principles with a new $40-a-month plan that includes unlimited voice calls, text messages and YouTube access, but that appears to bar users from VoIP services like Skype and Google Voice and from visiting sites like Netflix. (MetroPCS company also is offering other, less restrictive tiers of service for $10 and $20 a month extra.)

Neutrality proponents including Free Press and Center for Media Justice argue that MetroPCS will violate the FCC's neutrality rules by preventing users from accessing competing VoIP services or charge users more to reach some sites than others.

MetroPCS has said its plans are pro-consumer and pro-competitive. The company is expected to give the FCC a more fleshed-out defense of its pricing plans next month.

Free Press's policy counsel Chris Riley says he is waiting to see MetroPCS's FCC papers before taking further action. "At this point, trying to get the FCC to do anything before then would be a waste of my time," he says.