Free-Market Groups Claim FCC's Net Neutrality Rules Unconstitutional

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By Paul Barbagallo  

New Federal Communications Commission rules aimed at keeping internet service providers from blocking access to certain web sites or applications are unconstitutional and should be vacated, four free-market groups said in an amicus curiae brief filed July 24 with the U.S. Court of Appeals for the District of Columbia Circuit (Verizon Communications Inc. v. Federal Communications Commission, D.C. Cir., No. 11-1355, brief filed 7/24/12).

The D.C. Circuit is hearing seven consolidated appeals of the FCC's “Open Internet” order and rules, including those by Verizon Communications Inc. and MetroPCS Communications Inc., which moved quickly to sue the agency last September, filing court documents seven days after the text of the rules was published in the Federal Register.

The four groups who joined in the brief--TechFreedom, the Competitive Enterprise Institute, the Free State Foundation, and the Cato Institute--argue that the FCC rules “compel speech” by forcing ISPs to “post, send, and allow access to nearly all types of content,” even if a company prefers not to.

“Although, as Verizon, MetroPCS, and even the FCC note, alleged network-neutrality violations have been rare, that does not diminish broadband providers' constitutional rights to decide for themselves what to transmit and on what terms,” the groups wrote. “A speaker's freely made choice to transmit the messages of others is itself an exercise of First Amendment rights to control the content transmitted, and does not waive his right to determine the content he chooses to transmit in the future.”

Under the FCC order, all ISPs are subject to a “no-blocking” rule: For landline telephone companies and cable operators, the rules prohibit the blocking of any “lawful content or application, services or devices, subject to reasonable network management.” For wireless carriers, the rules forbid the blocking of consumers' access to sites or applications of their competitors. Only phone and cable operators are subject to a “no-unreasonable discrimination” rule.

Nothing in the rules themselves governs the practices of “edge providers,” which the FCC defines as providers of “content or applications over the internet,” such as Apple, Google, and Facebook.

'Differential Treatment of Speakers' Faulted.

To the four groups, this amounts to a “differential treatment of speakers” in violation of basic First Amendment principles of neutrality.

Thus, under the rules, Apple could continue to exercise “editorial discretion” in deciding which applications it will allow iPhone and iPad users to access, they said.

Turning to the Fifth Amendment, the groups contend that the FCC order “effects an unconstitutional per se taking without just compensation.”

“If the order stands, content providers will enjoy a nearly unqualified right to occupy the cables and wires that constitute broadband networks,” they wrote. “The Fifth Amendment prohibits permanent physical occupations without just compensation, 'no matter how minute the intrusion, and no matter how weighty the public purpose behind it.’ The order here provides no compensation to network owners, yet curtails network owners' rights to exclude users and to control the use of their networks. This works a per se taking, regardless of the manner of and rationale behind that taking.”

The groups also took issue with the FCC's reliance on “ancillary jurisdiction,” which was the subject of a prior legal action.

Under the Communications Act, the FCC has limited authority over “information services,” which broadband is now classified as, but has vast powers to regulate telephone utilities and “common carriers.”


If the FCC can invent authority to regulate the Internet today, there is no limit to what it might do tomorrow.”  


Brief of TechFreedom, et al.

The FCC adopted the rules based on Titles II , III, and VI of the act, as well as Section 706 of the 1996 Telecommunications Act, which directs the FCC to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.”

“Agencies have every incentive to interpret the scope of their authority broadly,” the groups wrote. “For that reason, courts are well advised to recognize agency regulatory authority only where Congress has specifically granted it… If the FCC can invent authority to regulate the Internet today, there is no limit to what it might do tomorrow.”

If the courts challenges are successful, Verizon and all other ISPs would be permitted to block content or treat their own content better than that of competitors, creating, in essence, a fast lane and a slow lane on the web.

The court has not yet scheduled oral argument in the case.

For the brief in Verizon Communications Inc. v. Federal Communications Commission, see

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