FCC lawyers told the U.S. Court of Appeals for the D.C. Circuit on May 30 that a court decision Verizon presented to the circuit last week to buttress its challenge of network neutrality rules is not on point.
In a January filing to the court, the FCC said that Verizon and other broadband providers "do not engage in speech; they transport the speech of others, as a messenger delivers documents containing speech." It drew the distinction between that and "cable systems, newspapers and other curated media," saying that broadband providers "do not exercise editorial discretion."
In a filing with the court last week, attorneys for Verizon pointed to National Association of Manufacturers [NAM], et al. v. National Labor Relations Board [NLRB], decided by the D.C. Circuit May 7, to argue that the FCC was wrong. In that decision, the court pointed to what it said were "some firmly established principles of free speech law," including the fact that "the dissemination of messages others have created is entitled to the same level of protection as the 'creation' of messages."
In its response Thursday, the FCC said that Open Internet rules do not resemble the regulation in the NLRB case, which was a requirement that employers post notices of collective bargaining rights. "The notice was written by the government, with a list of required statements in a specified format," said the FCC, which the court concluded was compelled speech "like a compulsory flag salute or the mandatory display of a license-plate motto."
"The Open Internet rules do not resemble that regulation," the FCC said. "Broadband providers need not convey any specific message, let alone a government-designated one. Providers must only refrain from blocking access to web sites of their customers' choice. Indeed, because Internet access service serves principally as a conduit for Internet content, broadband providers are not speakers at all... The Open Internet rules thus affect only the conduct of Internet service providers, not their speech."
The FCC said Verizon had defended itself from subpoenas by making the very argument the FCC was making.
The commission also said that the NLRB case recognized that without a compulsory, government-created message, which was not the case with the net neutrality rules, a finding of a compelled speech violation could only be upheld if a speaker's own message was affected by forced speech, which it said was not the case with Verizon.
"The Open Internet rules do not implicate that principle because Verizon remains free to convey any content of its choice on its facilities, to host its own website or to provide edited services reflecting Verizon's choice of content," said FCC counsel Joel Marcus, who submitted the letter to the court.