One of the more controversial recent network neutrality rules, like campaign finance reform, seeks to balance free speech against fairness and access. On one side, those controlling the networks say that controlling what goes out over broadband is their right under the First Amendment's free speech clause, among other commercial problems. On the other, net neutrality advocates warn that those controlling networks will restrict free speech by suppressing outside voices.
One of those actors controlling broadband networks is Verizon, a company that sued the Federal Communications Commission in October after the agency approved net neutrality in late 2010. Verizon's 116-page brief was filed in federal court this week.
The brief is anything but and lays out the argument against nearly any Internet regulation. On the notion of free speech, Verizon says in its brief that it's been a benevolent ruler of its pipes, but it doesn't necessarily have to be so benevolent:
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. The FCC’s concern that broadband providers will differentiate among various content presumes that they will exercise editorial discretion.
As the risk of sounding alarmist, this argument is a scary one for anyone providing content online. All actors controlling networks also provide some content, from the simple AT&T site to the Travel Channel (owned by broadband provider Cox Communications) to the vast Comcast empire of networks. A news organization such as, say, Government Executive Media Group, could easily be excluded in lieu of a similar Comcast news venture.
As a thorough legal argument, the brief also takes issue with less-publicized privacy issues for the network. In taking on portions involving third-party software, Verizon's legal team states that the net neutrality laws violate the Fifth Amendment:
“In essence,” edge providers “receive an unlimited, continuous right of access to broadband providers’ private property for free,” which “allows them to physically invade broadband networks with their electronic signals and permanently occupy portions of network capacity.”
This is certainly a concern for anyone using broadband and has been one largely ignored in the net neutrality argument. However, it is also mainly a concern for the broadband providers, as privacy is not really an issue for end users. After all, it's Verizon's network. We're just using it.Verizon also quotes the FCC Telecommunications Act -- written and passed in 1996 -- in arguing against letting anyone provide content on Verizon's network. Gigaom's Stacey Higginbotham sums the issue up in a lengthy analysis of the brief:
These are the twisted and arcane arguments that lawyers come up with, but what it boils down to is that Verizon and other ISPs are upset because they can’t implement the so-called “two-sided business model” where an ISP charges a customer as well as a service provider like Google or Netflix. Let’s call it the Ed Whitacre argument after SBC’s (now AT&T) former CEO who famously said that Google and others shouldn’t be able to use his pipes for free.
This argument remains a good one, legally, as broadband is not seen as a public good like the broadcast airwaves nor is it seen as a necessary public utility like gas or electric (though electric has its own problems). As long as the broadband networks are considered property of the providers, companies like Verizon will continue to claim as much control over the content as possible.
We remain at the crossroads for regulating broadband. The 1996 Telecommunications Act was backward thinking then and that was 16 years ago. Like the Stop Online Piracy Act, the arguments seem to rely on old law for old technology. The Internet has changed these things and regulators -- and regulations -- must change as well.