Earlier this week, the US Court of Appeals for the District of Columbia Circuit heard arguments in Verizon v. FCC, wherein Verizon challenges the validity of the FCC’s 2010 network neutrality order. The question to be answered, as identified by Susan Crawford, is whether or not the US government has a role in “ensuring ubiquitous, open, world-class, interconnected, reasonably-priced internet access.” Most reasonable people would answer in the affirmative. Verizon has vehemently answered in the negative, claiming the rule infringes its supposed First Amendment rights.
Verizon argues that its selling high-speed internet access is akin to the activities of a publisher and that government efforts to constrain its efforts to discriminate against some content providers while cutting deals with others is an unconstitutional abridgment of its First Amendment rights. Verizon asserts it’s being forced to subsidize speech with which it disagrees by the FCC’s exceptionally weak network neutrality requirement.
Crawford points out that Verizon’s true intent in this action is to attack the legitimacy of Congressional authority under the Commerce Clause to act in any way regarding high-speed internet access. Verizon is doing so, according to Crawford, by attempting “to to constitutionalize regulation and oversight, so as to move it out of the political branch of government — Congress and its delegatee the FCC — and into the courts” thereby subverting any attempt at oversight.
Crawford makes her point clearly:
“Remember why we have a First Amendment. It’s to keep government from favoring one viewpoint, one message, over another. What is the likelihood that government in the net neutrality area (or in any other arena of communications policy over general purpose transport networks) is suppressing speech or that it has a favored message it’s trying to get across? Answer: Zero. There is no subterfuge, no hidden censorial impulse, here.”
And, if you still don’t get it, there’s this:
They’ve got more if you want it.
During the two hours of oral arguments Monday, two of the three judges — Laurence H. Silberman and David S. Tatel — reportedly appeared to reject the notion the FCC has the authority to regulate the internet with regard to network neutrality.
Silberman, a Reagan appointee, is most widely known for overturning Oliver North’s Iran-contra criminal conviction and discrediting Anita Hill during US Supreme Court Justice Clarence Thomas’s confirmation hearings.
Tatel, a Clinton appointee, is known mostly for his ruling in Comcast v. Federal Communications Commission finding the FCC had failed to demonstrate statutory authority to regulate the network management activities of internet service providers.
Tatel pressed both the FCC and Verizon on the severability of the two main provisions of the FCC’s Open Internet Order: The prohibition of blocking online content and the prohibition against discriminating against any legal internet traffic, apparently signaling that he would uphold the no-blocking provision, but not the no-discrimination provision.
Verizon maintained that both provisions had to be struck together, arguing that the US Congress never intended the FCC to have internet regulation authority. The FCC argued it had internet regulation authority under various parts of the Telecommunications Act.
Both Silberman and Tatel said that the FCC’s anti-discrimination rule illegally applied telephone regulation to the web, according to Edward Wyatt, writing for the New York Times. Ten years ago, the FCC’s position under chairman Michael Powell was that telephone regulation was inappropriate for the internet and that it should be regulated — with a lighter hand — as an information service.