The FCC has asked a judge to dismiss lawsuits from Verizon and MetroPCS Communications that seek to repeal the agency's new net neutrality regulations.
In a motion to dismiss filed Friday, the FCC said the appeals had been filed prematurely because the net neutrality regulations have not yet been published in the Federal Register, and argued this meant the court lacked jurisdiction over the case.
"[The] notice of appeal thus is fatally premature and must be dismissed," wrote FCC counsel Joel Marcus in the motion.
The FCC also moved to delay the court's decision on Verizon's request to assign its net neutrality appeal to the same panel that heard Comcast vs. FCC last spring. The FCC lost the Comcast case challenging the legal foundation for its open Internet rules.
The FCC wants the court to wait on Verizon's panel assignment motion until its motion to dismiss the case has been decided. Verizon is already challenging the FCC's move to dismiss the case and its motion to delay the panel assignment.
Verizon argues the lawsuit should move forward because it filed its appeal within 30 days of the release date of the FCC's open Internet order and will file a protective notice of appeal when the regulations become published in the Federal Register, the timing of which is controlled by the FCC. The FCC issued its net neutrality order more than a month ago.
"In view of all that, as well as this court's uncontested exclusive jurisdiction over Verizon's challenge, the FCC's motion to dismiss is an ultimately fruitless exercise. Regardless of whether public notice is the release date or the date of Federal Register publication, Verizon's challenge to the order will be heard in this Court," Verizon's legal team wrote in its motion.
Both Verizon and MetroPCS argue that the FCC overstepped its authority in issuing its open Internet rules, which passed by a 3-2 vote in December. The regulations bar broadband Internet providers from "unreasonable network discrimination" and require wireless operators to let subscribers access lawful content over their networks. The regulations also face threats from House Republicans, who have threatened to block the rules from going into effect.