• by Wendy Davis  @wendyndavis, January 28, 2011

The Federal Communications Commission has asked an appellate court to dismiss challenges by Verizon and MetroPCS to the new neutrality rules.  

The FCC argues that the telecoms jumped the gun by appealing the rules before they were published in the Federal Register. "The filing window does not open until Federal Register publication," the FCC argues, adding that the appeals are "fatally premature and must be dismissed."

The FCC voted 3-2 in December to impose open Internet rules on broadband providers, but has not yet published those rules in the Federal Register. Agency decisions typically can't be challenged until they are finalized, which requires publication in the official Federal Register. But there are some exceptions, including when an agency decision modifies a company's broadcast license. MetroPCS and Verizon argue that the neutrality rules modify their licenses, and that they are therefore entitled to an immediate appeal.

The new regulations ban all broadband Internet service providers -- wireline and wireless -- from blocking sites or competing applications, and also ban wireline providers from engaging in unreasonable discrimination.

The FCC argues that its neutrality rules should not be treated the same as decisions affecting specific companies' licenses. The neutrality order "establishes general rules that apply to all fixed and wireless mobile ISPs, not to any specific ISP," the FCC argues. "The order does not even discuss its application to any specific ISP. Nor, in light of the numerous ISPs that provide service throughout the country, can the order be viewed as addressing such a small set of identifiable ISPs."

The FCC also argues that if the U.S. Court of Appeals for the D.C. Circuit does not dismiss the case, it should hold the matter because other appeals relating to the neutrality rules might be filed in different courts. In that event, the federal court system might hold a lottery to determine which court will consider the appeal.

If the case remains in the U.S. Court of Appeals for the D.C. Circuit, the telecoms likely have a good chance of vacating the neutrality order. That particular court already held in a separate case that the FCC lacks jurisdiction to enforce open Internet rules.