By Paul Barbagallo
Technology investors, computer network engineers, consumer advocates, and
even former Federal Communications Commissioners have lined up to support the
FCC in its court battle with Verizon Communications Inc. and MetroPCS
Communications Inc. over the agency's 2010 “Open Internet” order (Verizon
Communications Inc. v. Federal Communications Commission, D.C. Cir., No.
11-1355, briefs filed 11/12/12-11/16/12).
In “friend of the court” briefs filed with the U.S. Court of Appeals for the
District of Columbia Circuit the week of Nov. 12, the FCC backers took pains to
discredit one of the critical Verizon legal arguments--that by enacting rules to
prohibit providers of internet access services, such as Verizon, from blocking
access to web sites or applications, the FCC is in effect infringing on the
company's First Amendment rights to control “the transmission of speech” over
“There is nothing inherently expressive about transmitting others' data
packets, at a subscriber's direction, over the internet,” wrote the National
Association of Telecommunications Officers and Advisors; former FCC
Commissioners Reed Hundt, Tyrone Brown, Michael Copps, and Nicholas Johnson; and
former White House telecom policy adviser Susan Crawford.
The law, they contend, clearly recognizes the distinction between “providing
a facility” for speech and the speech itself.
“Beginning with its first regulation of telephone and telegraph network
operators as 'common carriers,' Congress has, in the interests of promoting
competition, protecting the people who use networks to communication, and
safeguarding their access to a multiplicity of voices, exercised its
jurisdiction under the Commerce Clause to impose--and authorize the FCC to
impose--access and nondiscrimination requirements much more far-reaching than
the modest ones at issue here,” they wrote. “There is nothing in the First
Amendment theories Verizon presents here that would exclude these measures from
To support this argument, they cited the 2006 Supreme Court case of
Rumsfeld v. Forum for Academic and Institutional Rights, Inc., in which
the high court rejected a First Amendment challenge to a statute requiring law
schools to host military recruiters whether or not the institution agreed with
the military's position on gay and lesbian rights. The court ultimately
concluded that the conduct “compelled” by the statute was not protected by the
First Amendment, because the schools were not the ones “speaking” when they
“hosted interviews and recruiting receptions' at which the military expressed
“Precisely because the consequences of First Amendment protection are so
significant, the Supreme Court has set a threshold to guard against clever
'First Amendment' claims that 'trivialize the freedom' it protects,” they
Just as in Rumsfeld v. Forum for Academic and Institutional Rights,
Inc., Verizon's “transmission of data” does not meet the threshold for a
First Amendment claim, they say.
“To be sure, Congress and the FCC have, over time, moved away from imposing
the all-encompassing regulation associated with the historic 'common carrier'
model, but such decisions have been rooted in judgments of policy, not dawning
doubts as to constitutional authority, let alone 'First Amendment' limitations
of the sort Verizon proposes,” they wrote. “The Telecommunications Act of 1996,
for example, required incumbent local exchange carriers [ILECs] to provide
access to elements of their local networks to competitors at unbundled,
regulated rates. Although these complex provisions provoked ample litigation,
including constitutional claims, no court perceived those obligations to permit
another party's calls to pass over an incumbent phone company's lines as raising
any plausible 'compelled speech' concern.”
Columbia University law professor Tim Wu, the former chairman of Free Press,
which lobbied aggressively for the FCC to adopt the Open Internet, said the law
draws a clear line between “publishers” and “distributor/transmitters.”
“Publishers are firms that actively choose a 'repertoire' of content they
wish to present to their audiences, bear public and legal responsibility for it,
and are protected under the First Amendment based on their exercise of editorial
judgment in the selection of their repertoire,” Wu wrote, citing the 1994
Supreme Court decision in Turner Broadcasting System, Inc. v. FCC. “A
transmitter, in contrast, primarily moves information according to the direction
of its users, has only vague knowledge of what it carries, is not usually
identified with the content, and is not held criminally or civilly responsible
for any crimes or torts it facilitates. There is no factual dispute that
Verizon, as a broadband provider, falls within the transmitter category. It
provides a service that moves content from one place to another, without actual
knowledge of what it makes available, and it takes full advantages of the lack
of legal responsibility.”
Wu speculated that, even if Verizon were to perform much more prioritization
of web sites and applications, the company still would not resemble a publisher,
but might resemble a Fedex or UPS.
Even top Democrats on the House Energy and Commerce Committee voiced concern
about Verizon's First Amendment argument.
In a letter sent Nov. 16 to members of the committee, ranking member Henry
Waxman (Calif.) and Reps. Anna Eshoo (Calif.), and Edward Markey (Mass.) said
there is “no apparent limit” to the company's claim.
“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,” the
lawmakers wrote in the letter.
While laying out arguments for upholding the FCC Open Internet order under
the First Amendment, the FCC supporters also defended the agency's statutory
basis for action.
In a joint brief,
the Open Internet Coalition, Public Knowledge, Vonage Holdings Corp., and the
National Association of State Utility Consumer Advocates said the FCC order
fulfills congressional intent to remove barriers to infrastructure
The FCC based its authority to adopt the order on Titles II , III, and VI of
the Communications Act of 1934, as amended, as well as Section 706 of the 1996
Telecommunications Act, which directs the FCC--neither of which make much
mention of the internet, or broadband.
Section 706 (a) states that the commission shall “encourage the deployment on
a reasonable and timely basis of advanced telecommunications capability to all
Americans…by utilizing, in a manner consistent with the public interest,
convenience, and necessity, price-cap regulation, regulatory forbearance,
measures that promote competition in the local telecommunications market, or
other regulating methods that remove barriers to infrastructure investment.”
Under Section 706 (b), the FCC must “determine whether advanced
telecommunications capability is being deployed to all Americans in a reasonable
and timely fashion.” If the commission makes a negative finding, it shall take
“immediate action to accelerate deployment of such capability by removing
barriers to infrastructure investment and by promoting competition in the
Essentially, the FCC rationale is that, if broadband providers like Verizon
start blocking web sites, then the American peoples' perception of broadband--or
“advanced telecommunications capability”--may change for the worse, and then
fewer consumers will pay the $50-plus a month to continue receiving the service,
and that, in effect, could hinder deployment. If demand for broadband begins to
decline, fewer and fewer carriers will deploy broadband infrastructure, the FCC
According to the Open Internet Coalition, Public Knowledge, Vonage Holdings
Corp., and the National Association of State Utility Consumer Advocates, the FCC
is accorded “great leeway” in making such a predictive judgment.
They argued in a joint brief that both Verizon and MetroPCS Communications
Inc., which is also appealing the FCC order, have recognized that consumers'
desire to use high-bandwidth applications, such as streaming video, leads
directly to investment in infrastructure.
They also noted that MetroPCS itself told the FCC that the internet “is the
model of the virtuous cycle: innovators are creating content and application
products that consumers desire, which drives consumers to purchase form service
and equipment providers, which in turn drives investment in the infrastructure
and new technology in response to consumer demand.”
“Verizon and MetroPCS argue only that any relationship between the two is
tenuous,” they added. “...There is nothing tenuous about the connection between
non-discriminatory online access to content and greater infrastructure
investment. Verizon and MetroPCS themselves have profited from it.”
More than two dozen venture capitalists chimed in as well, writing in a joint brief that
“freedom and openness” is what has allowed the internet to grow into the global
economic engine it is today.
“Newly developed internet content and applications, in turn, drive up
customer demand for faster internet access,” the investors wrote. “This customer
demand encourages internet providers to invest money into bigger and better
pipes. And bigger pipes encourage new developments in content and applications,
which restart the cycle of growth and investment.”
Similarly, 15 internet engineers, computer scientists, and technologists,
said the internet itself was the first “killer app” which led Verizon to invest
in and improve its network in 1990s.
“Traditionally, the internet has generated innovation because it is a level
playing field where users independently choose the applications they prefer,”
“Application-specific discrimination--the act of singling out certain web sites
and services for preferential or discriminatory treatment--not only distorts
markets, it strikes at the very foundation of the internet's ability to generate
low-cost innovation and new markets. The order, quite appropriately, does not
prevent network owners from adopting measures to protect the network's security,
to address congestion, to monetize their networks, to adopt reasonable network
management practices, or to adopt uniform pricing structures. Instead, it merely
ensures that these practices will be adopted in a manner that does not threaten
the next World Wide Web from being introduced.”
The 15 individuals who signed onto the engineers and technologists' brief
were Scott Bradner of Harvard University; Lyman Chapin of Interisle Consulting
Group; David Cheriton of Stanford University; Douglas Comer of Purdue
University; Phil Karn, formerly of Qualcomm, Bell Labs, and Bellcore; Leonard
Kleinrock of the University of California, Los Angeles; John Klensin, former
chair of the Internet Architecture Board; James Kurose of the University of
Massachusetts; Nick McKeown of Stanford University; Craig Partridge, “early
member” of the Internet Engineering Task Force and Internet Engineering Steering
Group; Vern Paxson of the University of California-Berkeley; David Reed, former
member of the FCC Technological Advisory Council; Scott Shenker of the
University of California-Berkeley; Don Towsley of the University of
Massachusetts; Paul Vixie, chairman of Internet Systems Consortium; and Steve
Wozniak, co-founder of Apple Computer, Inc.
If the Verizon court challenge is successful, the company and all other ISPs
would be permitted to block content or treat their own content better than that
of competitors, creating what some net neutrality advocates have described as a
fast lane and a slow lane on the web.
The court has not yet scheduled oral argument in the case.
The Open Internet Coalition, etc. brief is online at http://op.bna.com/der.nsf/r?Open=csaz-927uws;
Tim Wu's brief is at http://op.bna.com/der.nsf/r?Open=csaz-927uvs;
The National Association of Telecommunications Officers and Advisors, etc.
brief is at http://op.bna.com/der.nsf/r?Open=csaz-927uvy
The venture capital investors' brief is at http://op.bna.com/der.nsf/r?Open=csaz-927ux5;
The internet engineers and technologists' brief is at http://op.bna.com/der.nsf/r?Open=csaz-927uwc.