• by Wendy Davis  @wendyndavis, April 4, 2011

The U.S. Court of Appeals for the D.C. Circuit on Monday dismissed as premature a challenge by MetroPCS and Verizon to the Federal Communications Commission's open Internet rules.

In a two-page order, the court characterized the FCC's neutrality order as a "rulemaking," which can only be challenged in court after it has been published in the Federal Register. The appellate court rejected the telecoms' argument that the neutrality regulations constituted a "licensing" decision, and therefore were subject to immediate appellate review.

The appellate decision, however, is hardly a court endorsement of the FCC's neutrality rules. In fact, the court specifically states in its order that the neutrality regulations are subject to court challenge after they have been published.

Still, some neutrality advocates cheered the news. "We are pleased that the Court dismissed Verizon's untimely and distracting challenge to the FCC's net neutrality order," stated Harold Feld, legal director for Public Knowledge. "Now we are confident the judicial system will deal with any and all appeals raised in an orderly and fair manner."

Verizon and MetroPCS sued the FCC in January, shortly after the agency voted to impose open Internet rules on broadband providers, but before it had published the rules in the Federal Register.

Agency decisions typically can't be challenged until they are finalized, which requires publication. But an exception applies when an agency votes to modify a company's broadcast license. MetroPCS and Verizon unsuccessfully argued that the neutrality rules modified their licenses, and that they were therefore entitled to an immediate appeal.

The 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.