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Verizon Plays 'Unconstitutional' Card in Net Neutrality Fight

Verizon Plays 'Unconstitutional' Card in Net Neutrality Fight

Verizon has alleged in a court filing that the FCC's Net neutrality rules violate its right to free speech. Though it is taking a new tack, "this back-and-forth between what the FCC's role is and what the government's approach to Net neutrality should be has been going on for years -- and frankly, it is difficult to guess how it will play out until after the elections," noted tech attorney Peter Vogel.

By Erika Morphy
07/05/12 8:49 AM PT

Verizon has filed a legal brief with the U.S. Court of Appeals against the Federal Communications Commission's Net neutrality rules, arguing that they exceed the agency's regulatory authority and violate constitutional rights protected by the First and Fifth Amendments.

The FCC adopted the rules in December 2010. Among other provisions, ISPs cannot block content and must provide transparency into their operations. Also, packet discrimination must be "reasonable."

In its brief, Verizon says the FCC regulations violate its free speech rights.

"Broadband networks are the modern-day microphone by which their owners engage in First Amendment speech," it claims.

It also maintains that Congress never mandated the FCC to regulate the Internet.

Been There, Done That

The courts have already spoken on this matter, and have ruled in favor of the carriers, Verizon argues. In Comcast Corp. v. FCC, which was decided in 2010, before the FCC issued its current rules, a federal court found that the FCC had exceeded its authority in trying to rein in Comcast's Internet activities.

Verizon's appeal is a challenge to the FCC's second attempt to "conjure" a role for itself in the regulation of broadband Internet access, the company says in a preliminary statement.

"The FCC has acted without statutory authority to insert itself into this crucial segment of the American economy, while failing to show any factual need to do so," Verizon asserts.

Verizon declined to provide further details. The FCC did not respond to our request to comment for this story.

The Same Argument

Verizon's argument -- and the FCC's likely response to this brief -- is just another round in a years-old debate, Jeff Kagan, an independent tech analyst, told the E-Commerce Times.

"Companies like Verizon and Comcast say that because they have invested in and control these high-speed Internet lines they should be able to control them, and keeping customers from downloading and streaming content from a competing provider -- or at least charging them more for the service -- is within their rights," he explained.

Net neutrality and consumer advocates argue that the customers are paying for the access and they should be able to use that access as they please.

Both of the arguments make sense -- but there is one mitigating factor that tilts the balance is favor of consumers, Kagan said. "Right now, there is not much competition or choice available for consumers. If customers were able to pick and choose from among many different ISPs, I think the carriers' arguments would hold greater weight."

What's Fair vs. the Law

What is fair to the customer, though, is not the point of these legal proceedings. Rather -- like any matter in dispute -- the court will consider established law and the intentions of Congress in crafting those laws.

However, in this case, politics plays a significant role as well.

"Because of the way the FCC is organized, with three of the five Commissioners selected by the current president, the agency will likely change its approach to this subject every four or eight years," Peter S. Vogel, a partner at Gardere Wynne Sewell, told the E-Commerce Times.

"This back-and-forth between what the FCC's role is and what the government's approach to Net neutrality should be has been going on for years -- and frankly, it is difficult to guess how it will play out until after the elections," he said.

From a strictly legal perspective, if an enterprise can demonstrate why there should be a price difference in a service, then it is hard to imagine why that company shouldn't be entitled to put that price in place, Vogel said.

"The notion of Net neutrality has clear economic consequences for the carriers," Vogel said.

In any case, drawing out these legal arguments does not benefit either carrier or customer, Kagan pointed out. "At some point, we are simply going to have to decide: Is broadband access separate from the other services that carriers provide ... ? Or is it part of a carrier's range of services and thus a competitive service?"


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