Since the Federal Communications Commission (FCC) voted 3-2 to approve an order on network neutrality on Dec. 21, 2010, the rules, which prohibit broadband Internet providers from blocking or discriminating in transmitting legal traffic, have taken criticism from all sides. Net neutrality advocates have argued the FCC’s Open Internet Order doesn’t go far enough because it doesn’t appear to apply to wireless broadband providers and that it is unnecessarily broad in its definitions. On the other side, Internet Service Providers (ISPs) have their own concerns about the sweeping new regulations, arguing that government intervention has no statutory basis and will slow innovation.
The D.C. Circuit became the first court to rule on a legal challenge to the FCC order on April 4 when, in response to a lawsuit from wireless carrier Verizon (and a similar lawsuit from MetroPCS that tailed the Verizon action), it dismissed the case with a clear and simple message: Try again later.
Section 402 of the Communications Act provides two separate types of judicial review of FCC decisions. Most FCC orders have to be challenged under 402(a), under which parties file petitions for review in any federal court of appeals. Multiple filings across jurisdictions regarding one order go into a judicial lottery to determine which court hears the case.