Net Neutrality Wrecking Ball May Be in Motion

The United States Court of Appeals for the DC Circuit Court this week heard oral arguments in Verizon’s battle with the Federal Communications Commission over Net neutrality.

Verizon, which has always opposed Net neutrality, raises three questions in its filing: Whether the FCC’s open Internet Order imposes common-carriage requirements on services that are statutorily exempt from such requirements or otherwise exceeds the commission’s statutory authority; whether the order is unconstitutional; and whether the order is arbitrary and capricious.

The FCC essentially states that the Internet depends on openness, which has driven jobs and the creation of innovative applications and made the Web central to modern communications — and that prior to its issuing the Open Internet rules, several broadband access providers had blocked or degraded service, threatening the engine that drives investment in broadband facilities.

It argues that Verizon does not have a constitutional right to restrict the Internet.

The real issue may be the amount of power the FCC — and perhaps by extension, any government agency — should have. That concern is perhaps being fueled by the recent disclosures that the National Security Agency has been conducting surveillance on Americans’ communications.

On the other hand, the real question may be whether Verizon — and perhaps in the long run any Internet access provider — can wall off its services from government oversight.

Verizon’s Arguments

Verizon’s contention is that the FCC’s Net neutrality order violates the First and Fifth Amendments, and that it is arbitrary and capricious under the standards of the Administrative Procedure Act.

Broadband networks “are the modern-day microphone by which their owners engage in First Amendment speech,” Verizon said.

“Verizon’s First Amendment article is radical and dangerous,” David Sohn, general counsel for the Center for Democracy & Technology, told the E-Commerce Times.

Commandeering the First Amendment in support of its plans to block and tamper with users’ speech and access to information would turn the right of free expression on its head, Sohn said.

Deconstructing Verizon’s Case

Verizon’s real attack is on Congress’s authority under the Commerce Clause to say anything about high-speed Internet access, argued Susan Crawford, a professor at the Benjamin N. Cardozo School of Law.

“Verizon is seeking to have the rules struck down so that they would cease to have any legal force,” the CDT’s Sohn remarked.

What About the FCC?

The FCC managed to weaken its own case by adopting the wrong approach, Sohn suggested.

“One of the issues in this case is whether the FCC has boxed itself in by the way it has previously chosen to classify Internet access services under the law,” he explained. “The oral argument in the case, which occurred [Monday], focused quite a bit on the question of whether the Open Internet rules effectively treat ISPs as common carriers.”

The DC Circuit Court is the same one that ruled in 2010 that Verizon had exceeded its statutory authority over Comcast when it issued an order against the company for throttling the traffic of subscribers using BitTorrent under the General Provisions of Title 1 of the Communications Act and vacated the Commission’s order.

One view is that the FCC should have reclassified broadband service providers as common carriers under Title II of the Act instead of asserting jurisdiction over them with Title I again in the Open Internet Order.

The Future of the Internet

The court reportedly questioned the FCC’s lawyers sharply during Monday’s hearing and appeared to be having difficulty accepting the commission’s arguments.

“If Verizon wins, ISPs would be free to engage in whatever kinds of tampering or favoritism they believe may serve their bottom lines,” the CDT’s Sohn warned. “The model of the Internet as a wide-open platform for independent speech and innovation could erode.”