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Verizon Wireless has filed a lawsuit against federal regulators, seeking to overturn rules that would allow any device or software to work on a portion of wireless airwaves being auctioned by the government. The Basking Ridge, N.J.-based company, which filed the lawsuit on Sept. 10, wants the U.S. Court of Appeals for the District of Columbia Circuit to set aside a section of the Federal Communications Commission’s rules, calling it “arbitrary, capricious, unsupported by substantial evidence and otherwise contrary to law.” The agency in late July approved the rules for the auction, which is expected to take place no later than Jan. 28, 2008. It is expected to raise as much as $15 billion for the U.S. Treasury. Verizon Wireless — a joint venture between Verizon Communications Inc. and Vodafone Group PLC — has been staunchly opposed to the so-called “open access” provision that would apply to about one-third of the spectrum being auctioned. FCC commissioners decided to attach the provision on a large chunk of spectrum being sold in a bid to encourage a potential new entrant into the wireless broadband market. It stated that whoever buys that portion of the spectrum must allow any handset device to be attached to the wireless network they subsequently build and also allow any software application to be downloaded onto handsets over the network. Both of these conditions would potentially shake up a wireless industry in which the incumbent players like Verizon Wireless exert strict control over the devices their customers can use and the applications they can use. High-tech companies like Google Inc. and eBay Inc.’s Internet phone unit, Skype, had been aggressively pushing the FCC to adopt the conditions. Verizon Wireless, meanwhile, had been lobbying equally as hard against the conditions. “It’s regrettable that Verizon has decided to use the court system to try to prevent consumers from having any choice of innovative services,” Chris Sacca, Google’s head of special initiatives, wrote in the company’s blog on Sept. 13. “Once again, it is American consumers who lose from these tactics.” AT&T Inc. has said it supports the open-access conditions, while Verizon Wireless said it could live with them, but that it wouldn’t do anything to actively promote the changes to its customers. However, the company had said that imposing such requirements would reduce government revenue from the spectrum auction and limit the introduction of new and innovative wireless products. A Verizon Wireless spokeswoman declined to comment on the lawsuit. According to Philip Verveer, a communications lawyer with the Washington, D.C., office of Wilkie Farr & Gallagher, these types of legal challenges to FCC rules are rarely successful. He said that not only is there a legal presumption that the court must consider the FCC’s rules to be correct, but that most often courts will unofficially defer to regulatory agencies as well. “I don’t know what basis one would have for launching a challenge of this matter,” said Verveer. “A successful appeal of this kind is rarely successful.” An FCC spokesman declined to comment on the matter. Copyright 2007 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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