Yesterday, Verizon filed a notice of appeal in the DC Circuit Court of Appeals (filing @ Scrib’d), challenging the legality of the FCC’s December 2010 Report and Order on “Preserving the Free and Open Internet” (aka the “net neutrality lite” rules).
In case you’re feeling like you missed a beat somewhere — no, there have not been any district court case filings since the FCC adopted the December 2010 order. This appeal is the first filing in the case. As is noted in Verizon’s filing, the DC. circuit court of appeal has some original jurisdictional-like powers in some cases related to final orders of the FCC. According to 47 U.S.C. § 402, there are a few overlapping statutory authorities which this jurisdiction (apparently) relies on — though, please take my analysis with a grain of salt, since I am far from an expert in administrative jurisdiction and procedure.
First, there is § 402(a), which defers jurisdiction to 28 U.S.C. §§ 2342 and 2344, noting that “any aggrieved party” can file a notice of appeal to a circuit court within a certain time period and satisfy other limitations. An “aggrieved party” turns out to be a nuanced term of art which some courts have struggled with defining. Generally though, courts have held that an “aggrieved party” is one that participated in the agency proceedings that gave rise to the final order. However, there have been a few exceptions to that rule within particular circuits. Also important is the venue provision under this chapter (§ 2343) which states that venue can be the “judicial circuit in which the petitioner resides or has its principal office, or in the United States Court of Appeals for the District of Columbia Circuit.” In other words, a petitioner appears to have options on venue location.
Second, § 402(b) states that “decisions and orders of the [FCC]” can be brought directly to the DC Circuit in one of several enumerated cases. This is the authority that Verizon uses in their appellate filing. In particular, Verizon points to 402(b)(5), claiming that jurisdiction arises because Verizon is a holder of licenses granted by the FCC, and, the authority the FCC used in adopting new “net neutrality rules” was the agency’s ability to modify licenses (Verizon cites pages 93-106 and 133-135 of the FCC order in support of this claim).
The last time the FCC appeared before the DC Circuit, it didn’t go too hot. In that case, which involved Comcast, the judges declared that the FCC did not have the appropriate Congressional authority to impose net neutrality regulations on broadband service providers like Comcast (who was interfering with bit torrent traffic). No doubt, that ruling directly contributed to the FCC’s framework in the newly minted “net neutrality” rule making from December. I suspect that the Comcast case (DC Cir opinion, April 2010) is the primary reason Verizon selected the D.C. Circuit as its venue of choice to hear the appeal in this case, since I’m sure it will still be fresh in the minds of the DC Circuit judges — if you get my meaning. On top of that, Verizon has selected the same attorney that Comcast used in their April 2010 case.
My best guess is that this is the first of several challenges to the new net neutrality rules that we’ll see in the coming weeks. I’m not sure what the DC Circuit will do on the jurisdictional question — while it does look a bit like venue shopping, I don’t know whether the DC Circuit will see it the same way or if the cases cited by Verizon are on all fours. Stay tuned, we’ll probably chat about this case on this weekend’s podcast.
Comments Off Posted in: Links on January 21, 2011
Today, the FCC announced their approval [CNET article] of the Comcast/NBC merger, after a 4 to 1 vote in favor of the merger. According to the announcement [via FCC.gov], the FCC only approved the merger after NBC/Comcast agreed to a number of restrictions, which will be enforced for a period of seven years following the merger.
The FCC’s 3-page announcement provides an overview of the conditions in bullet point form. Here’s a few interesting points (that I noted after a quick skim) which pertain to “Protecting the Development of Online Competition”:
- that Comcast/NBC provide “any affiliated content that Comcast makes available online” to its own subscribers at “fair market value and non-discriminatory prices and conditions” to customers of other online video service.
- that Comcast/NBC offers a broadband service at “reasonable prices and of sufficient bandwidth” so that customers do not need a cable television subscription through Comcast/NBC to view online videos and the like.
- that Comcast/NBC does not enter into agreements that unreasonably restrict online distribution of video programming
- that Comcast/NBC does not “disadvantage rival online video distribution through its broadband Internet access services and/or set-top boxes”
- that Comcast/NBC does not “unreasonably withhold programming from Hulu”
Read the announcement for the rest.
There is a lot of information to digest related to this deal and it’s still early in the process. So, I would expect to hear a lot more about it in the coming weeks. In the meantime, check out Commissioner Michael J. Copps dissenting statement on the vote. Copps was the only commissioner to vote against the combination.
Comcast’s Blog Post on the FCC announcement.