It's Open Season on Verizon Open Internet Arguments

Companies Charge that FCC Rules Violate Speech Protections; Take Heat from Legislators
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Verizon was taking heat from legislators, former FCC commissioners/chairmen and others for its constitutional arguments against the FCC's network neutrality rules.

A trio of Democratic legislators and network neutrality fans say they are troubled by Verizon's argument that broadband providers have "a right to decide what they transmit online and that those business decisions are tantamount to speech deserving First Amendment protection."

That was seconded by a number of FCC defenders who saw major problems for enforcing a host of existing laws if that argument held sway.

In a "dear colleague" letter to their, well, colleagues, Reps. Henry Waxman and Anna Eshoo, both California, and Ed Markey (D-Mass.) were referring to Verizon's brief in its challenge to the FCC's Open Internet order in the U.S. Court of Appeals for the D.C. Circuit.

"If the court accepts Verizon's argument, the role of Congress in enacting communications policy through power granted by the Commerce Clause -- including efforts to protect consumers and promote competition in contexts far removed from the Open Internet rules themselves -- could be radically undermined," they argued.

"Verizon has been a longtime advocate for an open Internet, and is the only Internet Service Provider that voluntarily adopted such policies," a Verizon spokesman told B&C/Multi. "Our filing makes clear that we remain concerned that the FCC's sweeping assertion in this case exceeds its statutory authority and constitutional limits."

In the brief, filed jointly by Verizon and MetroPCS, the companies say the FCC has twice tried to "conjure" a role for itself in Internet regulation -- the same court threw out the FCC's smackdown of Comcast over BitTorrent peer-to-peer file management/blocking. In this case, says Verizon, the FCC is going further than it did in Comcast, imposing common carrier regs on broadband providers by requiring them to carry all "edge providers" and establishing de facto price controls of zero for that carriage.

The speech argument that so troubles the legislators is part of a two-part argument long made by cable and telco operators against net neutrality rules. That is that the regs arrogate control of speech on their networks, a violation of their First Amendment rights, and that they are a taking of property (mandating access, or "occupation" as Verizon puts it, for a price of zero), which is a violation of their Fifth Amendment protections from government taking of property without compensation.

Briefs were due this week in the case, and there were a number of them being circulated around Washington at presstime that took issue with the constitutional arguments.

For example, in an amicus brief backing the FCC and cited by the trio of legislators, former FCC commissioners and chairmen, NATOA and a former top White House adviser, urged the court to reject what they said were Verizon's "startling" constitutional arguments.

"Were Verizon's theories credited, Congress's historic power to take and authorize measures to preserve openness of communication networks would be unsettled and dramatically narrowed," they said. The "they" in this case were former FCC Democrats Chairmen Reed Hundt and Michael Copps, and commissioners Tyrone Brown and Nicholas Johnson, as well as former Obama White House senior adviser Susan Crawford.

In another amicus brief filed in defense of the FCC, Columbia University law professor and author Tim Wu was also concerned about the First Amendment argument. He said the court should reject that essentially for the same reason that Markey and company were concerned: the potential impact on communications legislation and regulation.

"There is no way to hold the Order unconstitutional without implying the same for much of more than a century and a half of similar regulations, including many, like the Order, that imposed non-discrimination rules but not full common carriage duties. To suggest that laws in force for most of the Republic's history were actually unconstitutional would be a dramatic outcome indeed."