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"The motion to have the license appeal heard by the Comcast panel of judges was Verizon's longest long-shot," said Larry Downes an industry consultant and author, in an e-mail. "And the denial of that motion doesn't really affect their overall litigation strategy."
The D.C. Circuit Court of Appeals is still the preferred court for Verizon, he says. "In general, its judges have the most experience dealing with FCC matters and in general are likely to be skeptical of the FCC's legal basis for issuing the rules. Another court of appeals might be just as skeptical, but keeping it in the D.C. Circuit would reduce the risk of "outlier" judges hearing the consolidated challenge."
Verizon wants the case heard in D.C. because the court is bound by its own precedent, while other circuits are not, says Christine Goepp, a communications lawyer at Fletcher, Heald & Hildreth, PLC. Having their request rejected is a definite blow to Verizon's strategy, "which seemed to imply that the Comcast panel was just rearing to get back at the issue and that they are perhaps even affronted at the net neutrality order and are eager to slap it down," she says. But it looks as though the Court isn't quite so eager to jump back in the ring for another round.
Still, it's in Verizon's best interests to replicate all aspects of the Comcast ruling-- and Verizon's gone as far as hiring Helgi Walker, the lawyer who led Comcast to victory last April.
Of course a repeat of last spring is exactly what the FCC doesn't want, and it recognizes that the D.C. Circuit isn't going to be a sympathetic ear. In an effort to steer proceedings out of the DC Circuit's hands, the FCC moved to dismiss the challenges filed by both Verizon and Metro PCS, on the grounds that they were "filed prematurely" since the rules had yet to be published in the Federal Register. The FCC asked that for the sake of "efficiency and conservation of resources" that the court dismiss the challenges until it's clear if the appeal would actually be heard in the D.C. Circuit.
Once the order is written in the Federal Register it can be challenged, and the FCC's strategy is to hope someone else appeals in a different court -- which will trigger a lottery so that all cases could be heard in any of the U.S. Appeals Courts, explained Jeffrey Silva, senior policy director for Global Medley Advisors. It's not clear who exactly would file in another court, but net neutrality advocates could challenge over a minor issue in the hopes that the appeal be heard in a different, more favorable court in an effort to prevent the rules from being overturned.
To do this, the FCC needs the court to agree with its motion for dismissal -- not just that that the appeal was filed prematurely, but on the grounds that the order is a rule-making decision and not an adjudication regarding a specific party . That would force Verizon to file an appeal challenging the entire order and could trigger a lottery.
Verizon's best bet now is to hope the court decides the appeal was simply filed to early, so they can reapply and secure the D.C. Circuit Court after the order has been written in the Federal Register.