Broadband providers have “editorial discretion” to give priority to their own Web content, and the U.S. Federal Communications Commission’s net neutrality rules limiting that discretion is a violation of providers’ free speech rights, two carriers said in a court brief filed Monday.
Broadband providers have a similar editorial discretion as newspapers do, carriers Verizon Communications and MetroPCS argued in a brief filed in their challenge of the FCC’s net neutrality rules, passed in December 2010. Both carriers challenged the net neutrality rules shortly after the FCC passed them.
“Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others,” lawyers for the two carriers wrote. “Although broadband providers have generally exercised their discretion to allow all content in an undifferentiated manner, they nonetheless possess discretion that these rules preclude them from exercising.”
Broadband providers have the right to “distinguish” their own Web content over other content, and offer prioritized content to partners, the lawyers wrote in the brief. “In fact, some types of speech, such as live streaming high-definition video, could benefit from (or may only be available with) differential treatment, such as prioritization,” they wrote. “Broadband providers could also give differential pricing or priority access to their over-the-top video services or other applications they provide, or otherwise feature that content.”
The arguments that the net neutrality rules violate the First Amendment of the U.S. Constitution don’t make sense, said Harold Feld, senior vice president of digital rights group Public Knowledge. The carrier First Amendment argument has been “routinely rejected by the courts,” he said in an email.
Verizon and MetroPCS argued that they are speakers as well as conduits for other people’s speech, Feld said. “But nothing in the rule prohibits Verizon from creating and providing any content it likes,” he added. “From a First Amendment standpoint, there is nothing expressive or protective about Verizon interfering with the speech of others.”
The carriers’ argument seems at odds with the First Amendment, Feld said. “In fact, they are claiming a First Amendment right to block, degrade or otherwise treat traffic differently,” he said.
The two carriers also argue that the FCC has introduced price regulation to fixed and mobile broadband services with the net neutrality order. The net neutrality order prohibits broadband providers from charging “edge” services — like Google’s search or Facebook — for carrying their traffic, the lawyers for Verizon and MetroPCS wrote.
The FCC order sets a “uniform price of zero” for carrying the traffic of edge providers, the brief said. “The order thereby limits the ability of providers to employ two-sided pricing models in which edge providers pay for some costs of the network (thereby pushing more costs onto consumers),” the brief said. “It also effectively prohibits price discrimination among edge providers because all must pay the identical rate.”
A hearing on the lawsuit is not yet scheduled in U.S. District Court for the District of Columbia.
Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant’s e-mail address is firstname.lastname@example.org.