Should Telecom Giants Edit the Internet?

In Verizon v. FCC, Verizon Claims that Congress Lacks Authority to Protect Consumers – But Verizon Has the Right to Edit the Internet

Update:

“Briefing: Should Telecom Companies Edit the Internet?”

House Visitors Center 215
Wednesday, November 28
3:30-4:30 p.m.

Verizon is arguing before the Court of Appeals for the D.C. Circuit that broadband providers have a right to decide what they transmit online and that those business decisions are tantamount to speech deserving First Amendment protection.
  
This briefing, hosted by Representatives Henry Waxman, Anna Eshoo, Edward Markey, Michael Doyle, and Doris Matsui, will highlight the startling constitutional arguments being made in the D.C. Circuit and how the role of Congress in enacting communications policy could be radically undermined.

We hope you or your DC-based colleagues will be able to attend this event.

 
Confirmed Speakers Include:

  • Reed Hundt, former FCC Chairman (1993-1997), current chair of the Aspen Institute's International Digital Economy Accords (IDEA) Project.
  • David Goldberg, co-drafter of an amicus brief (with Sean Donahue) in Verizon's DC Circuit case on behalf of former Chairman Hundt, Susan Crawford, several former FCC Commissioners, and NATOA.

Read the briefing summary here.

 


 

November 15, 2012

Washington, DC:  Today, former officials with decades of expertise in communications networks, including former FCC Chairman Reed Hundt, joined by the National Association of Telecommunications Officers and Advisors (NATOA), filed a friend of the court brief with the United States Court of Appeals for the District of Columbia Circuit in connection with Verizon's pending challenge to the FCC's Open Internet Rules.

The brief responds specifically to sweeping claims made by Verizon in its opening brief (filed July 2, 2012) that Congress and the Federal Communications Commission are barred by the First Amendment from imposing any restrictions on Verizon's provision of broadband Internet access to Americans.

Read the Brief | Descriptions of Amici

According to Verizon’s argument:

In performing these functions [providing the transmission of speech from Point A to Point B], broadband providers possess 'editorial discretion.'

Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others.

In effect, Verizon claims that by transmitting bits – providing Internet access – it gains the rights of a newspaper like the Washington Post or the New York Times. This assertion has no basis in constitutional law, and in fact repudiates many positions taken by Verizon before Congress, courts and the FCC over the years.

As William Barr, General Counsel of Verizon’s predecessor GTE (and former Attorney General of the United States) said to Congress in June 1999 when fighting the cable operators' position that they should be allowed to act as gatekeepers over Internet traffic,

"[The solution to the threat is] a simple legal mandate that cable operators deliver traffic on an open and nondiscriminatory basis to other ISPs."

Barr insisted that such obligations were consistent with the “central tenet of ... telecommunications [regulation]”:

Open access is not regulation of the Internet, as some opponents suggest, but simply ensures access to the Internet and Internet interconnection to guarantee competition on the Internet and freedom of choice for the consumer…

The right to install a driveway and get a fair return from the consumer for installing that driveway, but that does not give you the right to dictate to the household where they go on the highway.

The signers of this brief have come together to address Verizon’s startling constitutional claims because their potential impact is as sweeping as their lack of precedent is breathtaking. If Verizon’s current assertions were allowed to prevail, the consequences for American society and our economy would be very grave. Every aspect of business and social conduct increasingly depends on access to information and collaboration on the Internet. For Verizon and all other Internet access providers to become constitutionally protected gatekeepers, editors, and censors as to all knowledge and data would threaten consumers, citizens, and businesses with untold risk and cost.

Read the Brief | Descriptions of Amici

"Verizon and its predecessors have argued exactly to the contrary time after time -- including when they were fighting for open access to cable companies' wires a decade ago and when they have claimed immunity from liability based on their status as a transmissions provider for the content they carry," said Tyrone Brown, who served as an FCC Commissioner from 1977-1981.

“It is fine to have policy disagreements about what is the right thing to do about communications in America, but to say that Congress lacks the authority to legislate in this area would destroy a century of Congressional efforts to protect consumers, promote competition, and safeguard communication network users’ access to speech,” said Michael Copps, who served two terms as an FCC Commissioner, including six months as the Commission’s Acting Chairman, before stepping down in 2012.

“Our problem is not so much that America’s largest corporations violate the law, though they do," said Nicholas Johnson, who served as an FCC Commissioner from 1966 to 1973. "It’s that Congress permits them to write the laws, in exchange for generous campaign contributions. But it’s quite a stretch for Verizon now to argue that its disproportionate political power also gives it the right to rewrite the Constitution, and repeal the First Amendment rights of over 300 million Americans.”

"Selling transmission services is not expressive speech," said Susan Crawford, a former Special Assistant to the President. "Verizon's troubling argument threatens to undermine Congressional authority to exercise any oversight over communications networks."

The officials' brief takes no position with respect to the Open Internet Rules themselves. 

The case name is Verizon v. FCC, No. 11-1355. The underlying FCC order whose provisions Verizon is appealing is In re Preserving the Open Internet; Broadband Industry Practices, Report and Order, Docket Nos. 09-191, 07-52, 25 F.C.C.R. 17905 (rel. Dec. 23, 2010), 76 Fed. Reg. 59192 (Sept. 23, 2011). The case is likely to be heard by the DC Circuit next spring, and decided in July or August of 2013.

For interviews with any of the signers of the amicus brief, contact Caitlin Howarth at chowarth@rooseveltinstitute.org, 212.444.9138 (o), 410.982.2777 (m).

***

DESCRIPTIONS OF AMICI

 

Reed Hundt served from 1993 to 1997 as Chairman of the FCC. He is currently the chair of the Aspen Institute's International Digital Economy Accords (IDEA) Project. A graduate of Yale College and the Yale Law School, he is the author of three books, including "You Say You Want a Revolution" (2000) and "In China's Shadow" (2006) as well as a recent e-book, "The Politics of Abundance" (2012).

Tyrone Brown was FCC Commissioner from 1977 to 1981. His career includes service in all three branches of government, beginning as a law clerk to Chief Justice Earl Warren. His diverse telecommunications experience includes stints in academia, as a business executive, as an attorney in private practice, representing Black Entertainment Television and other major media companies, and as President of the nonprofit Media Access Project.

Michael Copps served two terms as FCC Commissioner, including six months as the Commission’s Acting Chairman, before stepping down in 2012. Prior to joining the FCC, he was Assistant Secretary of Commerce for Trade Development and served for over a dozen years as Chief of Staff for Senator Ernest Hollings (D-SC). He has also held positions at a Fortune 500 company and at a major trade association. 

Nicholas Johnson served as an FCC Commissioner from 1966 to 1973.   He currently teaches at the University of Iowa College of Law. The recipient of three Presidential appointments, Johnson is the author of several books and has also served as a public television host, columnist, school board member, congressional candidate, Supreme Court law clerk, public interest advocate, administrator, manager and corporate representative. 

Susan Crawford served as a Special Assistant to the President for Science, Technology, and Innovation Policy in 2009. From 2005 to 2008, she was on the Board of the Internet Corporation for Assigned Names and Numbers (ICANN). She is currently the Visiting Stanton Professor of the First Amendment at Harvard's Kennedy School of Government and a Visiting Professor at Harvard Law School; she is also a Fellow at the Roosevelt Institute's Four Freedoms Center and Director of the Telecommunications Equality Project.

The National Association of Telecommunications Officers and Advisors (NATOA) is a national trade association, founded in 1980, that promotes local government interests in communications, and serves as a resource for local officials as they seek to promote communications infrastructure development. NATOA’s members include municipalities of all sizes, elected and appointed officials, and a broad range of technical professionals.

 

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