Verizon Says FCC Net Rules Unconstitutional

     WASHINGTON (CN) – Verizon said the Federal Communications Commission’s second attempt at imposing net neutrality rules on Internet service providers is an unconstitutional solution in search of a problem.



     “Broadband networks are the modern day microphone by which their owners engage in First Amendment speech. The FCC thus must identify an actual problem, and narrowly tailor its solution to solve that problem,” Verizon said in a brief filed last week with the D.C. Circuit
     The FCC’s rules, which prohibit internet service providers from slowing down or blocking content on their networks in favor of other content, is in effect a government taking of their property Verizon argued.
     “The Fifth Amendment likewise protects broadband network owners from government compulsion to turn over their private property for use by others without compensation, especially in light of their multi-billion-dollar investment-backed expectations.”
     In December 2010, the FCC adopted its Open Internet Order which requires broadband service providers to carry all lawful content on their networks without charge and prohibits them from “unreasonably discriminating” against some content by slowing the speed at which it is delivered.
     The order was crafted after the Court of Appeals rejected the FCC’s assertion of an “ancillary authority” stemming from its obligations under the Communications Act of 1934, the Telecommunications Act of 1996 and congressional policy to regulate internet service providers.
     Verizon said the FCC was still trying to “conjure” a role for itself in regulating the internet that Congress never intended. The brief notes that since 2006 at least eleven net neutrality bills have been introduced in Congress but none have been enacted.
     “Rather than proceeding with caution in light of Comcast, the FCC unilaterally adopted rules that go even farther than its prior action and impose dramatic new restrictions on broadband Internet access service providers,” Verizon said.
     The order actually violates the very acts the FCC cites as authority, Verizon said, by imposing so-called “common carrier” provisions, meant to protect universal access to the telephone connections, on what is an information providing service.
     The FCC itself has designated broadband service as an “information service” akin to broadcasting which the courts have routinely found to be exempt from common carrier requirements like nondiscriminatory access to a network, the brief said.
     Nor could the FCC point to any actual instances of broadband providers blocking content or offering preferential treatment to content providers willing to pay for access to a network.
     “The order was motivated not by broadband providers’ current practices, but by the FCC’s view of their theoretical incentives and ability to engage in practices that the FCC disfavors,’ Verizon argued.
     Verizon and MetroPCS, which filed the current brief together, first challenged the Open Internet Order in January 2011 before it was even published in the Federal Register. The D.C. Circuit tossed that case finding that it was premature. The two service providers filed the current suit in September 2011, a week after the order was published.
     The brief was filed by Helgi C. Walker of Wily Rein in Washington.

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