On January 20th, Verizon took the controversial move of appealing the FCC’s Net Neutrality Order before notice was published in the Federal Register. Shortly after Verizon appealed, MetroPCS Communications filed a similar appeal, also in the D.C. Circuit and also relying on section 402(b) to assert that venue lies exclusively within the D.C. Circuit.
The FCC has moved to dismiss both petitions as premature. Verizon opposed the motion and the FCC filed its reply yesterday. At this time, the court has not ruled on the motion. However, the D.C. Circuit issued a brief order denying Verizon’s motion to refer the case to the Comcast panel of judges.
Meanwhile, the FCC’s order still has not been published in the Federal Register. Once it is published, we expect multiple appeals to be filed, most likely in several circuit courts of appeal. Such appeals would trigger the lottery process to determine where to consolidate the cases.
Links to the pleadings relating to the FCC’s motion to dismiss are available below.
Here is the FCC motion to dismiss. An identical motion was filed in the MetroPCS case.
Verizon filed an opposition to the FCC motion, and the FCC replied to Verizon’s opposition. (MetroPCS did not file a response to the motion). The court has not ruled on the motion yet.
We will update this blog as significant developments occur.