Verizon: Court Decision Forecloses FCC Speech Argument

Telco Tells Appeals Court Its Own Recent Precedential Decision Undercuts Agency Argument in Net Neutrality Defense
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Verizon has told the U.S. Court of Appeals for the D.C. Circuit that its recent ruling in a National Labor Relations Board case forecloses the FCC's argument in defense of network neutrality rules that broadband providers are not speakers but only "conduits" for speech.

In its 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 on Wednesday, attorneys for Verizon, which has challenged the FCC's open Internet order, pointed to the case, National Association of Manufacturers [NAM], et al. v. National Labor Relations Board [NLRB], decided by the 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 dissemination of messages others have created is entitled to the same level of protection as the 'creation' of messages."

"NAM found that the posting rule compelled speech by requiring the dissemination of information created by others and stressed that it is no answer, when such speech is involved, to say that alternative avenues of communication remain open," said Verizon in the filing. "The NLRB argued that an employer could still 'legally express its opinion regarding unionization,' but the Court squarely rejected this argument because it did not cure the core compelled-speech problem. The FCC makes the same mistake when it contends that 'Verizon remains free to convey any content it wishes.' What matters is that the 'net neutrality' rules, like the posting rule, compel providers to carry speech they may not wish to disseminate."

The FCC also argued that even if it was wrong and the First Amendment does apply, "the Open Internet Rules are narrowly tailored to serve important government interests."

No oral argument date has been set of the net neutrality challenge, and now is not likely happening until the fall, according to an attorney familiar with the case.