FCC Disputes Verizon's Claim That NLRB Case Makes It ‘Speaker' Under First Amendment

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By Paul Barbagallo  

The recent decision by the U.S. Court of Appeals for the District of Columbia Circuit does nothing to undercut a Federal Communications Commission argument in a separate case that internet service providers are “conduits for speech of others” under the First Amendment, not “speakers,” FCC counsel told the court in a letter May 30.

Verizon is challenging the FCC rules for net neutrality in a lawsuit before the D.C. Circuit, claiming that the agency not only lacks the statutory authority to regulate web traffic, but that the regulations themselves are a violation of the company's First Amendment rights to control the “transmission of speech” over its network (Verizon Communications Inc. v. Federal Communications Commission,; D.C. Cir., No. 11-1355, filed 9/30/11).

If the court agrees with Verizon, the FCC rules would be unenforceable, and every company that provides a pipeline through which consumers gain access to the internet, including Verizon, would be free to block websites or treat their own web content better than that of rivals. A Verizon win also would open the door for these same companies to challenge any FCC regulation on First Amendment grounds.

Verizon is trying to bolster its case by pointing to the D.C. Circuit's May 7 decision in National Ass'n of Manufacturers v. NLRB, D.C. Cir., No. 12-5068, 5/7/13. The ruling, Verizon argued to the D.C. Circuit Court in a May 22 letter, forecloses the FCC's argument that the company is more like FedEx and UPS than The New York Times.


“ Indeed, because internet access service serves principally as a conduit for internet content, broadband providers are not speakers at all. Verizon has defended itself against subpoenas on that very ground.”  



FCC counsel Joel Marcus

The FCC disagreed.

FCC counsel Joel Marcus explained that because employers “objected to the message the government has ordered them to publish,” the NLRB panel found the notification tantamount to 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,” Marcus wrote. “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. Verizon has defended itself against subpoenas on that very ground. The Open Internet rules thus affect only the conduct of internet service providers, not their speech. NLRB does not address such a situation.”

Marcus said this case is far closer in nature to 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 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 itself.”

“The NLRB panel recognized that, in the absence of compulsory government-devised messages, a 'compelled speech violation' could occur only when 'the complaining speaker's own message was affected by the speech it was forced to accommodate,'” Marcus added.

Nothing in the FCC's rules for net neutrality, Marcus noted, prevents Verizon from offering its own content over the internet, such as a company website or e-mail services for subscribers.

In a January brief filed with the court, the FCC had contended that Verizon, unlike “cable systems, newspapers, and other curated media,” does not “exercise editorial discretion.”

No oral argument has been set in the Verizon case, but legal experts believe the court will set a September or October date.

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