Initial net neutrality appeal dismissed as premature

So much for creativity in appellate litigation. The U.S. Court of Appeals has determined that Verizon jumped the gun when they filed notices of appeal of the FCC’s net neutrality decision last January. As a result, Verizon’s appeal has been dismissed. (A similar appeal by MetroPCS was also dismissed in the same order.)

As faithful readers will recall, Verizon made a two-pronged effort to insure that the D.C. Circuit would be the court to review the net neutrality approach adopted by the Commission in late 2010. (Verizon’s motive in that effort isn’t hard to guess: the D.C. Circuit had slammed a similar regulatory approach in the 2010 Comcast decision.) But one prong of that effort – a request that Verizon’s appeal be assigned to the same panel of judges who decided Comcastwas rejected in less than two weeks. And now the second shoe has fallen.

The Court’s latest order is terse. Offering no substantive analysis, it merely concludes that

[t]he challenged order [i.e., the net neutrality decision] is a rulemaking document subject to publication in the Federal Register, and is not a licensing decision “with respect to specific parties.”

The theory of Verizon’s approach was that it was a “licensing decision” affecting “specific parties”. So much for that theory. As a result of the Court’s order, judicial review cannot be sought until the agency’s decision is published in the Federal Register, something that hasn’t happened yet.

The good news for Verizon is that dismissal of its initial appeal does not foreclose it from seeking judicial review again once net neutrality finally makes it to the Register. (No word yet as to when that might be. Trade press reports a couple of months ago indicated that Federal Register publication was then imminent. Those reports were apparently wrong.)

The bad news for Verizon is that, when the opportunity to file does arise, there will be no way to guarantee that the case lands in the D.C. Circuit. If other parties file their petitions for review in other Circuits, a “judicial lottery” system kicks in. While it would seem to make sense for the D.C. Circuit to hear the next round of net neutrality appeals – that Court, after all, is very familiar with administrative law issues generally and issues arising from the Communications Act in particular – at this point it’s anybody’s guess where the case will ultimately land.