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Government Commission argues Verizon doesn't have the legal jurisdiction to sue it

The U.S. Federal Communications Commission is still struggling to try to convince the nation's biggest internet service providers to comply with its new net neutrality rules.  Surprisingly one of the noisiest critics has been Verizon Communications, Inc. (VZ), a company whose net neutrality proposal the FCC largely adopted.  

Specifically, the FCC's new rules exempt wireless carriers like Verizon from the ban on throttling internet connections.  Verizon is perhaps upset about the provisions that would prevent it from banning certain sites such as 4Chan and the provision which prevents it from charging users fees on a per-site basis, something that communications companies are currently in talks to deploy.  Under such a scheme, each site you visited (e.g. DailyTechGoogleWikipediaYouTube, etc.) would result in either a separate monthly fee or a separate per-visit fee being added to your account.

Pay per page visit
Fig 1.: The FCC proposal is unpopular among telecoms, who complain it would prevent a "free market" in which carriers could charge users per-website usage fees. [Source: Fierce Wireless Semina via Wired]

The FCC has filed to dismiss a second lawsuit from Verizon challenging the rules.  It has already defeated Verizon once, dismissing the company's first lawsuit challenge.

In a new court filing the FCC's attorneys argue that Verizon has insuffiient jurisdiction to challenge the rules on a statutory basis.

It writes:

"Verizon's theory of jurisdiction is that the FCC modified its radio licenses within [certain statutes] because the Open Internet Order cited the agency's authority to modify licenses, among numerous other statutory bases of authority." Verizon's attempt to appeal the order on a statutory basis, "however, applies only when this Court is asked to review an FCC order that modifies specific individual licenses. It does not apply to review of generally applicable Commission orders that, like the Open Internet Order, regulate a broad group of licensees as a class. ... Verizon's notice of appeal ... should be dismissed for lack of jurisdiction."

The argument is an interesting one.  Basically, the FCC is arguing that Verizon's attorneys have misinterpreted the laws which grant it regulatory authority.  Specifically it's arguing that the law permits ISPs like Verizon to only sue about individual per-carrier regulatory decisions, rather than broad regulatory edicts, like the net neutrality rules.

If the FCC's "Motion to Dismiss" is approved, Verizon's hopes of fighting the new rules will dwindle, given that it's already lost another case in court.  However, it remains to be seen whether the court sides with the FCC's argument about jurisdiction.  Verizon does have one thing working in its favor.  It's retained Helgi G. Walker, the Washington D.C. attorney who won Comcast Corp.'s (COMCSA) challenge per-company net neutralty enforcement.

Even if it wins this round, the FCC still has more lawsuits to deal with.  It is facing a separate suit, which rather than arguing -- like Verizon -- that the rules go to far, argues instead that they don't go far enough, as they exempt wireless carriers from throttling restrictions.

Source: FCC



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This article is over a month old, voting and posting comments is disabled

By avanst on 10/8/2011 9:45:51 PM , Rating: 2
This article is misinterpreting the motion filed by the FCC. It doesn't make sense to say, "that Verizon has insuffiient jurisdiction." What this motion is saying is the COURT has insufficient jurisdiction as specified in the first paragraph of the motion:
quote:
appeal pursuant to 47 U.S.C. § 402(b)(5), which grants this Court
exclusive jurisdiction over FCC decisions that modify individual radio
licenses
(emphasis added)

However, Verizon has filed under two separate statutes, U.S.C. § 402(a) and Section 402(b)(5), this motion is simply arguing the court lacks jurisdiction to decide the issue because "the challenged decision did not modify radio licenses"

Ultimately it doesn't make a difference if this case gets dismissed because Verizon has filed separately under a different statute simultaneously, specifically U.S.C. § 402(a), to which the FCC's order is subject to review, which the FCC's motion concedes.

Jason needs to be clear about what is going on here, I think he isn't because of his lack of legal understanding. This case is likely to get dismissed due to the court's lack of jurisdiction, and once it does, there is still the other case, specifically Case No. 11-1356, that will make up the difference.

Verizon's lawyers are simply covering all the bases which is a common tactic used by good lawyers, if this case gets dismissed, it's nothing that Verizon needs to really worry about.




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