Google vs. Verizon: The 'open access' saga continues

First with Net neutrality and now with so-called "open access" rules for forthcoming wireless networks, there seems to be no end to the discord between Google and Verizon.

The latest evidence of tensions surfaced when Verizon Wireless this week quietly filed a petition asking a federal appeals court in Washington to "review" rules set to apply to an auction next January of the coveted 700-megahertz wireless spectrum. Earlier this summer, the Federal Communications Commission decreed that consumers must be allowed to use whichever mobile devices or applications they please on about a third of that chunk.

A number of consumer groups and Google had wanted even more stringent conditions, such as requiring the winning bidders to make their spectrum available at reasonable wholesale prices, but the majority of commissioners didn't agree that the mandate was appropriate. But even the less comprehensive rules drew vocal disappointment from the U.S. wireless-access industry, which had argued that the auction would best serve American consumers and raise more money if carried out with "no strings attached."

Excerpt from Verizon Wireless' appeals court petition

Now attorneys for Verizon have escalated that "disappointment" to court action. In a brief filing dated Monday but not reported until Thursday by various news outlets, they 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. (Verizon representatives declined to elaborate further on the claims, saying they'd let the filing speak for itself.)

Google was quick to bite back, attempting to portray its potential rival in the bidding process as anti-consumer.

"The FCC's auction rules are designed to allow U.S. consumers--for the first time--to use their handsets with any network they desire, and download and use the lawful software applications of their choice," Chris Sacca, the company's head of special initiatives, wrote in a Thursday afternoon blog entry. "It's regrettable that Verizon has decided to use the court system to try to prevent consumers from having any choice of innovative services."

It remains to be seen how--or if--the continued sniping will affect Google's own planned forays into the mobile sphere. The company recently announced a partnership with Sprint Nextel to integrate its mobile services into a new 4G WiMax network, and it already has struck deals with large mobile providers in Asia and Europe, such as Vodafone and China Mobile.

But Google Mobile project manager Sumit Agarwal admitted at the time that U.S. carriers have been more hesitant to embrace the company as a partner. It seems possible that what appears to be fundamental divide over "open" network rules could prove a sticking point--that is, if it hasn't already.

Update at 7:35 a.m. PDT: As for whether the Verizon petition will go anywhere, it's too early to tell, based on the company's thin filing, said Blair Levin, managing director of analysis firm Stifel Nicolaus and onetime chief of staff to an FCC chairman during the Clinton administration. He said that although some judges in the D.C. Circuit have "not seemed to want to give much deference to the FCC" in the past, it's impossible to predict what will happen without knowing exactly who will be assigned to the case.

"It's probably appropriate to say the FCC always starts off with an advantage, as the expert agency," he said in a telephone interview. "I think that until you see a lot more, placing odds on this, one way or the other, is foolhardy."