Verizon filed a 116-page page brief in federal court Monday evening against the Federal Communications Commission’s (FCC) Net neutrality rules. The Internet and telecommunications giant claims that the FCC overstepped its bounds by establishing the rules in the first place. Verizon also claims that the FCC is trampling its constitutional right to free speech through its attempts to regulate the Internet.
Odd as that sounds, Verizon may be right — at least partially.
Net neutrality: The basics
The FCC’s Net neutrality rules mandate that Internet service providers (ISPs) may not block websites or slow down connections to content or services that compete with their own products or those of their partners. The rules also forbid ISPs from blocking any “lawful” device from access the Web. In other words, Verizon cannot slow down its customers’ access to Netflix, even if Verizon offers a competing service, and it cannot prevent someone using a Sprint smartphone to access the Web via a Verizon connection.
The saga surrounding Net neutrality dates back to 2002. But the real battle began in 2010, after a federal court ruled that Comcast had not violated the FCC’s Net neutrality “principles” by blocking peer-to-peer traffic from services like BitTorrent and Gnutella because the FCC did not have the authority to impose these principles in the first place.
This decision by the court was based on the fact that the FCC has the power to regulate “telecommunication” services, based on the 1996 Telecommunications Act, but it has far more limited powers over “information” services, which is how the Internet is currently classified. In other words, the FCC has the power to regulate the series of tubes the Internet runs through, but not nearly as much power over the information traveling through the tubes.
Despite the court’s ruling, the FCC went ahead and made its Net neutrality “principles” into official “rules” anyway, without officially re-categorizing Internet access as a “telecommunication” service, and without any new legislation giving it the authority to “regulate the Internet,” as Verizon calls it. This decision rendered their Net neutrality rules completely invalid — or so the argument goes.
“The Commission based [its] self-described ‘broad authority’ to adopt the rules not on any express or otherwise clear delegation of authority but on a hodgepodge of provisions scattered throughout the [Communications Act of 1934] ‘viewed as a whole,” wrote Verizon in its filing. “However, none of these provisions remotely suggests that Congress ever intended to empower the agency with such vast authority over the Internet.”
Verizon goes on in the next paragraph to argue that the FCC established its Net neutrality rules “without any evidence of a systematic problem in need of a solution” — i.e. the FCC didn’t prove that ISPs like Verizon were blocking websites or throttling access speeds to competing services — and that the FCC “singled out” ISPs unfairly, since “other key providers in the Internet economy have the same theoretical incentive and ability to engage in the conduct that concerned the FCC.”
Cuckoo for constitutional crazy puffs
Ok, so, that concludes the not-crazy part of Verizon’s argument. After all, it is entirely possible — even likely — that the FCC overstepped its authority by enacting Net neutrality rules without Congress first giving it the power to do so. That’s what the court decided in Comcast, right?
Now comes the “WTF are they thinking?” part of tonight’s program. According to Verizon, the FCC’s Net neutrality rules “are unconstitutional” because “broadband networks are the modern-day microphone by which their owners engage in First Amendment speech,” and the rules also “[violate] the First Amendment by stripping [ISPs] of control over the transmission of speech on their networks.”
Ok, so, Verizon apparently thinks that the government is infringing upon its right to free speech by not allowing it to infringe on other’s right to free speech.
Furthermore, says Verizon, the FCC is violating the Fifth Amendment by failing to protect “broadband network owners from government compulsion to turn over their private property for use by others without compensation.” Who these freeloaders are, exactly, we have no idea. But if you happen to be getting Internet access through Verizon for free, be so kind as to let the rest of us know, would you? Because, last I checked, a Verizon Internet plan does in fact cost money.
As far as the first part goes — that the FCC overstepped its power by imposing the Net neutrality rules in the first place — it’s entirely possible that the court will side with Verizon. But this last part, especially the claims that the government is violating the First Amendment, seems downright insane.
Of course, I’m not a legal scholar, so what do I know? But from a pure customer point of view, it would appear as though Verizon really, really wants to do the stuff that the Net neutrality rules forbid. Otherwise, why go through the effort of fighting back against them? The whole thing just seems greedy, and anti-customer — regardless of whether the courts side with Verizon on this issue.
The FCC has until September to file a response to the briefing, which also includes a filing from pre-paid wireless provider MetroPCS. View the full briefing below.