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Verizon Wireless drops 'open access' challenge

Company withdraws appeal of FCC rules requiring a portion of wireless spectrum sold in an upcoming auction to be open to any wireless devices or apps consumers desire.

Verizon Wireless' court fight against new federal rules that require "open access" on some forthcoming wireless networks appears to be no more.

The No. 2 U.S. wireless carrier on Tuesday filed for "voluntary dismissal" of its September petition with the U.S. Court of Appeals for the District of Columbia, according to the court docket. The filing for dismissal was reported earlier Wednesday by Dow Jones/Associated Press.

At issue are Federal Communications Commission rules for an upcoming auction of 700MHz wireless spectrum, also known as the analog television band. That band is scheduled to be vacated in early 2009 for the switch to all-digital broadcasts. The spectrum is considered prime real estate for existing or would-be mobile operators because its signals travel farther and can penetrate walls.

The FCC decreed this summer that about one-third of the spectrum that's sold must be open to whatever wireless devices and applications a consumer wishes to use.

That's potentially significant since wireless carriers have been known to particular networks and restrict the software that their subscribers can operate. However, its broader impact remains to be seen, since, big-picture-wise, the rules pertain only to a relatively small slice of spectrum.

While the FCC's move drew praise from public-interest groups and companies like Google, the wireless industry largely greeted the rules with disappointment. Verizon Wireless took the more aggressive step of challenging the FCC's order in court.

In its brief, Verizon Wireless charged that the FCC's action exceeded its authority, was "arbitrary, capricious, unsupported by substantial evidence and otherwise contrary to law," and even violated the U.S. Constitution. At the time, some industry analysts said it's rare for such actions to succeed, as courts typically give deference to the rule-making agency in such cases.

Google and the public-interest groups would have actually preferred to see the FCC rules go further, requiring the new spectrum owners to sell access to competitors at reasonable, wholesale rates. Google, for its part, pledged to bid up to $4.6 billion if all those conditions were met. But because the FCC rules fell short, Google is still weighing how to proceed.