FCC Refutes Verizon Network Neutrality Argument

The Federal Communications Commission told the U.S. Court of Appeals for the D.C. Circuit May 30 that a court decision Verizon presented to the circuit recently to buttress its challenge of network neutrality rules is not on point.

In a January filing to the court, the FCC said that Verizon and other broadband providers "do not engage in speech; they transport the speech of others, as a messenger delivers documents containing speech." It drew the distinction between that and "cable systems, newspapers and other curated media," saying that broadband providers "do not exercise editorial discretion." In a filing with the court last week, attorneys for Verizon pointed to National Association of Manufacturers [NAM], et al. v. National Labor Relations Board [NLRB], decided by the D.C. Circuit May 7, to argue that the FCC was wrong. In that decision, the court pointed to what it said were "some firmly established principles of free speech law," including the fact that "the dissemination of messages others have created is entitled to the same level of protection as the 'creation' of messages." In its response, the FCC said that Open Internet rules do not resemble the regulation in the NLRB case, which was a requirement that employers post notices of collective bargaining rights. "The notice was written by the government, with a list of required statements in a specified format," said the FCC, which the court concluded was compelled speech "like a compulsory flag salute or the mandatory display of a license-plate motto."

"The Open Internet rules do not resemble that regulation," the FCC said. "Broadband providers need not convey any specific message, let alone a government-designated one. Providers must only refrain from blocking access to web sites of their customers' choice. Indeed, because Internet access service serves principally as a conduit for Internet content, broadband providers are not speakers at all... The Open Internet rules thus affect only the conduct of Internet service providers, not their speech."