FCC Garners Broad Support in Legal Fight With Verizon Over Net Neutrality Rules

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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 its network.

“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 invalidation.”

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 itself.”

“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 wrote.

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.”

Differences Clear Between Verizon, Newspaper Publisher.

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.

House Dems Also Raise Concern about Verizon's Claim.

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.

FCC Supporters Refute Verizon Arguments on Agency Authority, Too.

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 investment.

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 telecommunications markets.”

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 reasons.

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.”

Venture Capitalists, Engineers Evoke 'Freedom,' 'Openness' of 'Net.

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,” they wrote. “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.

No Oral Argument Scheduled.

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.

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