FCC Critics Argue Net Neutrality Order Violates Speech Rights, Exceeds Authority
The FCC net neutrality order violated broadband provider free-speech rights, argued Alamo Broadband and Daniel Berninger, who are among the petitioners challenging the order in the U.S. Court of Appeals for the D.C. Circuit. “The FCC admits that broadband providers engage in and transmit speech, but contends the First Amendment does not protect these activities. That position is indefensible,” said Alamo, a small broadband provider, and Berninger, a network engineer, in their reply brief Monday in USTelecom v. FCC, No. 15-1063.
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The Internet's "overwhelming" importance "cuts against” the FCC order and its “statutory reinterpretations,” said Tech Freedom and other intervenors in their reply. USTelecom and other petitioners in their reply had argued that the agency was precluded from reclassifying broadband Internet access service as a Communications Act Title II telecom service by the 1996 Telecom Act, and had misconstrued the Supreme Court’s Brand X ruling (see 1510050064). But in their reply, Full Service Network and other petitioners argued the FCC had deviated from the law by giving broadband providers too much freedom from Title II regulation.
Alamo and Berninger said the First Amendment protects broadband providers just like any other distributor of mass communications, from cable companies to Google's YouTube. “The open Internet rules cannot survive any level of scrutiny because they foreclose the exercise of editorial discretion in the name of equalizing speech,” they argued. “The FCC also lacks authority to ban paid prioritization.” The commission “acknowledges that broadband providers ‘engage in First Amendment activity’ when creating their own Internet content (Verizon’s huffingtonpost.com), but argues that ‘these activities … are unaffected by the open Internet rules.’ This is incorrect,” Alamo and Berninger said. “By foreclosing prioritization, the Order restricts broadband providers’ editorial discretion to favor their own and unaffiliated Internet content,” they argued. "It also infringes the speech of edge providers like Berninger who wish to distinguish their content and services by having them delivered faster.”
Alamo and Berninger argued the FCC also erred in saying broadband providers don’t engage in speech when acting “as conduits” for others’ speech. “Distributing communications to mass audiences is no less entitled to First Amendment protection than the communications distributed,” they said. “Broadband providers do not surrender their editorial discretion by electing to transmit all lawful content any more than an individual surrenders his free speech rights by not speaking. … No transmitter of mass communications would receive First Amendment protection under the FCC’s approach.” Alamo and Berninger said the FCC order should be subjected to judicial “strict scrutiny,” but also would fail “intermediate scrutiny.”
Tech Freedom and other intervenors said the FCC “claims vast new authority over Internet services.” The “Internet affects virtually all aspects of American life” and FCC Chairman Tom Wheeler insists it’s "the most powerful network in the history of mankind,” they said. “Yet the FCC assumes that Congress would implicitly delegate vast control over it to an independent regulatory commission -- indeed, to a mere three commissioner majority.” The FCC claims discretion and powers that “are far too broad,” including over edge providers, with burdens “falling on innovators,” said Tech Freedom, joined by tech innovators Scott Banister, Wendell Brown, Cari.Net, David Frankel, Charles Giancarlo and Jeff Pulver.
USTelecom and other petitioners said the FCC had rewritten more than statutory definitions and Brand X. The commission "has unlawfully: (1) overturned years of consistent decisions classifying Internet access service as an information service, upsetting the FCC-induced reliance interests of companies large and small that invested billions in deploying broadband networks; (2) abandoned 20-year-old interpretations of multiple Title III provisions that provide additional immunity from common-carrier regulation for highly competitive mobile broadband services; (3) ignored Verizon v. FCC, (D.C. Cir. 2014), in extending Title II to Internet interconnection; and (4) done all of this without proper notice,” said USTelecom. It was joined by the American Cable Association, AT&T, CenturyLink, CTIA, NCTA and the Wireless Internet Service Providers Association.
Full Service Network said the D.C. Circuit had found “the FCC can’t abandon the legislative scheme because it thinks it has a better idea,” citing a 1995 BellSouth case. But FSN said that’s what the commission has done in this case. “Congress adopted a detailed plan for local competition in the 1996 Act that the FCC has for more than a decade abandoned under its ‘light touch’ policy,” said FSN, joined by Telescape Communications, True Connect Mobile and Sage Telecommunications. “As the FCC admits, their predictive judgment ‘cannot be reconciled with marketplace realities.’ It is time to enforce the legislative scheme,” they said, arguing the commission decision to forbear from applying most Title II provisions to broadband providers was unjustified. They also disputed AT&T's arguments that they lacked standing to bring their case.
The Department of Justice and FCC as well as supporters filed briefs defending the commission’s order and rules (see 1509150052, 1509210058">1509210058, 1509220045, 1509220052">1509220052 and 1509230025). Oral argument is scheduled for Dec. 4.