Verizon Wireless filed suit on Monday in the U.S. Court of the Appeals for the District of Columbia over the open access requirements built into the FCC's 700 MHz spectrum auction rules. The wireless carrier is seeking to strike down the last-minute inclusion of these requirements, arguing in its two-page petition (PDF of the paper filed) that the open access rules are "arbitrary, capricious, unsupported by substantial evidence and otherwise contrary to law."
That's all Verizon Wireless has to say, because the sole basis for a court to overturn a decision made by the Commission is if the agency acted in an arbitrary and capricious manner under the Adminstrative Procedures Act. The court won't (or isn't supposed to) weigh the policy merits of open access. All it will do is decide if the FCC arrived at its new rules by making a reasoned connection between the facts reviewed and the choices made.
Unfortunately for Google, the biggest proponent of the open access requirements, it's going to be hard to say that the FCC's open access requirements were based on any facts at all, at least in their final form. Remember how the rules were derived? FCC Chairman Kevin Martin floated an unofficial proposal (via USA Today no less), everybody scrambled, a circus ensued and a compromise, a clearly political compromise, was ultimately made.
Sure, the Commission can make a lot of arguments regarding how and why it made a rational decision (it did solicit comments on the question), but Verizon Wireless also has a very good argument to make that the FCC was basing its decision on something other than the facts. Moreover, from media ownership rules to indecency regulations, the courts haven't been kind to the FCC lately.
None of this, by the way, suggests that a Verizon Wireless win in the appeals court would be the right outcome. Clearly Google thinks the lawsuit stinks. Google lobbyist Chris Sacca says that "it's regrettable that Verizon has decided to use the court system to try to prevent consumers from having any choice of innovative services."
Verizon Wireless may also end up regretting this move. Although it can gain time to figure out new strategies for dealing with the open access issue, if it wins the appeal the court will likely send the new rules back to the FCC for further fine-tuning, bolstering the will and organization of pro-open access proponents in the process.
It doesn't help Verizon Wireless that most folks like the idea of being able to choose their own mobile handsets and applications. Verizon Wireless could wind up coping with even more unpalatable open access requirements.
Cynthia Brumfield at 11:15 PM|Comments(0)
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