Verizon pressed its argument against the Federal Communications Commission's new network neutrality rules on Monday; filing a legal brief with the United States Court of Appeals for the DC Circuit. The company argued the FCC's rules not only exceeded the agency's regulatory authority, but also violated network owners' constitutional rights. Specifically, Verizon believes that the FCC is threatening its First Amendment right to freedom of speech and its property rights under the Fifth Amendment.
Verizon believes that Congress has not given the FCC the power to impose network neutrality regulations on the nation's ISPs. Last year, the firm sued to stop the implementation of the rules the FCC adopted in December 2010.
"The Commission points to a hodgepodge of provisions to support its claim of 'broad authority,'" Verizon writes. However, the firm says, the FCC "does not and could not suggest that any of these provisions expressly authorizes these rules." Indeed, Verizon notes, "since 2006, at least 11 pieces of 'net neutrality' legislation were introduced and debated in Congress. None were enacted."
Editorial discretion
But Verizon believes that even if Congress had authorized network neutrality regulations, those regulations would be unconstitutional under the First Amendment. "Broadband networks are the modern-day microphone by which their owners [e.g. Verizon] engage in First Amendment speech," Verizon writes.
Verizon believes that it's entitled to the same kind of control over the content that flows through its network as newspaper editors exercise over what appears in their papers. That includes the right to prioritize its own content, or those of its partners, over other Internet traffic.
"Although broadband providers have generally exercised their discretion to allow all content in an undifferentiated manner, they nonetheless possess discretion that these rules preclude them from exercising," Verizon writes. "The FCC’s concern that broadband providers will differentiate among various content presumes that they will exercise editorial discretion."
Verizon points to a 1994 case in which the Supreme Court ruled that regulations requiring cable television providers to carry broadcast television channels triggered First Amendment scrutiny. By the same token, Verizon says, network neutrality rules trigger First Amendment concerns by restricting broadband providers' rights to allocate more bandwidth to some content than to others.
Electronic invasion
That's not all. Verizon also believes the FCC's rules violate the Fifth Amendment's protections for private property rights. Verizon argues that the rules amount to "government compulsion to turn over [network owners'] private property for use by others without compensation."
The Fifth Amendment prohibits the taking of private property without compensation. According to Verizon, network neutrality rules are "the equivalent of a permanent easement on private broadband networks for the use of others without just compensation."
Indeed, quoting a recent law review article, Verizon argues that network neutrality rules allow third parties to "physically invade broadband networks with their electronic signals and permanently occupy portions of network capacity."
Verizon also notes "providers have invested billions in broadband infrastructure on the understanding that they can manage access to network facilities and use those facilities to offer the products that their customers want." By frustrating that expectation, Verizon argues, the FCC has effectively engaged in a "regulatory taking" of broadband providers' property.
These arguments suggest that Verizon is digging in its heels against the regulation of its network. If the courts rule that the FCC has exceeded its authority under telecommunications laws, Congress could respond by changing the law to explicitly authorize network neutrality regulations. But if the courts accept Verizon's constitutional arguments, then imposing network neutrality rules on the nation's broadband carriers could require a constitutional amendment.
Still, the courts haven't always been sympathetic to this type of argument. After it ruled that must-carry rules raise First Amendment issues in 1994, the Supreme Court sent the case back down to the lower courts for further consideration of the case. The lower courts ultimately decided that the regulations passed muster under the First Amendment. That ruling was later affirmed by the Supreme Court in 1997.
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