Verizon and the FCC are battling over whether the telecom company’s lawsuit challenging net neutrality rules should be heard in the Washington, D.C., appeals court where Verizon filed it, or if the door should be left open for another venue. The FCC is trying to have Verizon’s lawsuit thrown out, saying Verizon jumped the gun because it sued over the rules before they published in the federal register. Verizon responded to that motion today, saying it isn’t required to wait for that step to challenge the rules.
But the real battle here appears to be over the venue of this dispute. Verizon wants to stay in the court it filed suit in, the U.S. Court of Appeals for the D.C. Circuit, because that’s the court where another broadband provider, Comcast (NSDQ: CMCSA), won a big net-neutrality case against the FCC last year.
Verizon isn’t asking just for the same court; it’s actually requested the same three-judge panel that handed Comcast victory in its case last year; that case involved the cable company’s slowing down of BitTorrent traffic. The FCC will surely challenge that request, even if it loses this initial sparring over venue.
In a talk with reporters the day before the rules were issues, FCC officials said the agency believed it was on stronger legal ground with Verizon than it was in the Comcast case, but didn’t elaborate on the legal strategy the agency would use.
The FCC’s stance is that the court needs to wait and see if any other parties challenge the rules in another court; if they do, FCC lawyers argue that the situation will need to be resolved with a lottery determining which court hears the case. Verizon’s attorneys countered that the D.C. court has jurisdiction over its case, even if another party files in a separate venue.
Even if the court accepted the FCC’s wait-for-a-lottery argument, the agency would need another party to file in another venue in order to get to that point, and it’s not clear why any true opponent of the rules would do so. The D.C. appeals court now has some track record of judges that seem interested in limiting the FCC’s powers over the internet, and for any true opponent of the new rules, it would be an attractive venue. MetroPCS, which filed a similar lawsuit just five days after Verizon, chose to file in the D.C. Circuit as well.