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US court boots and moots Verizon net neut suit

Open internet squabble postponed. Again

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Verizon's lawsuit against a US Federal Communications Commission order that imposes network-neutrality rules has been tossed out of court by a three-judge panel who deemed the suit premature.

"Regardless of whether the order is reviewable by way of a petition for review, 47 U.S.C. § 402(a), or a notice of appeal, 47 U.S.C. § 402(b), the prematurity is incurable," wrote judges Henderson, Tatel, and Kavanaugh of the US Court of Appeals for the District of Columbia.

The lawsuit that is now "dismissed as moot," in the words of the court's Monday ruling, was filed by Verizon on January 20 in response to the FCC's vote last December 21 on a cluster of regulations designed to ensure that vaporous concept known as network neutrality.

Among the stipulations in the FCC's order were rulings that both wireline and wireless carriers must be "transparent" in their network-management practices, that wireline providers could "not block lawful content, applications, services, or non-harmful devices", and that wireless providers couldn't block apps that compete with their voice or video telephony services.

Verizon was of the opinion that the order overstepped the FCC's regulatory mandate. In its January filing, the telecom giant's lawyers wrote: "Verizon seeks relief on the grounds that the Order: (1) is in excess of the Commission’s statutory authority; (2) is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act; (3) is contrary to constitutional right; and (4) is otherwise contrary to law."

"Not so fast," said the DC court on Monday, in so many words. Since the FCC ruling hasn't been officially published in the Federal Rgister, the lawsuit's "prematurity is incurable". The court apparently wasn't swayed by Verizon's argument in its January 20 filing that it was protesting the ruling in an "abundance of caution".

Monday's ruling – although certain to please net-neut fans – is far from conclusive. It merely means that lawsuits have been kicked down the road until the order is official – and with some virulent critics of the FCC's action having compared it to "George Orwell's 1984, complete with doublethink and newspeak," you can be certain that when the appropriate time comes, the courts will be clogged with challenges. ®

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