Tomorrow, Monday, Sept. 9, the D.C. Circuit will hear argument in Verizon v. FCC. [FCC links here to filings in the case – scroll down. I was involved in the ‘Natl Assn of Telecomms Officers Assn’ amicus brief. The remarks below were prepared for a public session in Washington, D.C. on Sept. 5, for which CSPAN has video here.]
There’s a spray of issues in telecommunications policy and law, and lots of acronyms and shiny objects. So it should be a relief to people here that the case being considered by the DC Circuit on Monday presents a moment of grandeur.
The question presented by this case is the following: Does the US government have any role in ensuring ubiquitous, open, world-class, interconnected, reasonably-priced Internet access? I believe it does, both for competitiveness reasons – as Asia, in particular, adopts policies driving towards precisely that end – and also to help ensure a thriving middle class that can help this country remain strong for generations.
Verizon’s challenge to the FCC’s Open Internet Rule is historic. It is, again, an attack on the idea that the government has any role in ensuring ubiquitous, open, world-class, interconnected, reasonably-priced Internet access, either administratively (by virtue of authority delegated to the FCC by Congress) or through Congress itself. The attack at the agency level is strong and stems from some elaborate legal gymnastics that the FCC has carried out in order to regulate with one hand while claiming to deregulate with the other. That attack is all about policy—decisions made by an expert agency against a backdrop of assumed legal authority. My view is that we will get through that policy battle one way or another.
The far more profound attack represented by Verizon’s lawsuit is on Congressional authority under the Commerce Clause to say anything at all about high speed Internet access.
Each talk can convey only one message, and here is my message today: It is very important that the DC Circuit firmly squashes Verizon’s laughable First Amendment claim in this case.
Verizon says that in its capacity as a company selling high-speed Internet access it is the same as the Washington Post. And that any effort by government to constrain its ability to slice, dice, discriminate, make deals with content providers about, Internet access should be found unconstitutional under the First Amendment.
Verizon has good reasons to make this absurd argument. This is the company’s attempt to constitutionalize regulation and oversight, so as to move it out of the political branch of government – Congress and its delegatee the FCC – and into the courts. This will throw up huge road blocks to any oversight. Verizon seeks to remove any threat of constraint on its activities.
The same kind of argument was made in the Lochner era – although even then the providers of general purpose, two-way communications facilities did not have the chutzpah to claim they should be protected by the First Amendment.
Verizon only has to make this sound like a serious, legitimate constitutional argument to win. Their goal is to make some court, and they hope that court is the the Supreme Court, agree that this is a serious question: Oversight over general purpose transport networks implicates the speech interests of the carrier. And then they will pivot and say, well, in light of this very serious constitutional question you can’t possibly defer to what the administrative agency, the FCC, has done. Nor can you legislate in this area.
They will repeat this over and over again until what is a laughable argument gets taken seriously. The same thing happened in health care.
Well, the government has very good reasons to oversee this area. And Verizon’s constitutional claim is absolutely absurd.
Remember why we have a First Amendment. It’s to keep government from favoring one viewpoint, one message, over another. What is the likelihood that government in the net neutrality area (or in any other arena of communications policy over general purpose transport networks) is suppressing speech or that it has a favored message it’s trying to get across? Answer: Zero. There is no subterfuge, no hidden censorial impulse, here.
Verizon will say it’s being forced to subsidize speech with which it doesn’t agree by being obliged to be neutral. That’s nonsense. Fifty years ago, those same arguments were made by segregationists, saying that their lunch counters were being used to subsidize sit-ins. These arguments rated only a paragraph then; they’re disgraceful. Sure, everything subsidizes everything else, but there has to be a commonsense line. Justice Scalia recognized this clearly in a case a few years ago, saying “As many a curbstone philosopher has observed, everything is related to everything else.” No sensible person could possibly agree that Verizon is actually being forced to subsidize messages – understandable, viewpoint-driven, messages – with wchich it does not agree by virtue of a net neutrality rule or any other transport-related regulation.
The DC Circuit needs to slam the door on this argument. Decisively. Because what Verizon is really trying to protect is its profitable position. It wants power to squeeze out profits everywhere – at interconnection points, where content providers will have to pay tribute, and in the last mile.
But economic loss is not a First Amendment injury.
Verizon is free to speak any time it wants to, about anything. Merely allowing other peoples’ speech to cross its lines does not amount to compelled speech. Luckily, a very careful opinion by Justice Roberts in the recent Solomon Amendment case (Rumsfeld v. FAIR) makes this clear.
And Verizon isn’t being singled out – those companies who use wires and transmissions to provide general purpose two-want transport into American homes and businesses are different from the sites and applications that use the Internet. The sidewalk is different from the conversation. (Citizens United was in the context of political speech; nothing of the sort is going on here.) And we’re concerned about the sidewalk’s unconstrained power to rise up and make more money by picking and choosing conversations to feature.
Importantly, the US government has plenty of good reasons to prefer open networks to one-off, private carriage arrangements; to ensure ubiquitous access (just as our phone system was the envy of the world when it was built; and to make sure our infrastructure is world class.
Indeed, the First Amendment, and its great tradition of cases protecting dissent and press freedom, is demeaned by Verizon’s argument.
We’re an ahistorical country, but we still have common sense.
Verizon, in selling high speed Internet access, is not a newspaper being forced to support views it opposes (under Miami Herald). Nor is it, in selling these services, a pay television distributor exercising editorial discretion over which stations or programs to include in its repertoire (under Turner).
Now, left to its own devices, it would LIKE to be akin to a pay television provider, providing private carriage and cableizing Internet access. This case has a crucial timing element to it – a kind of chicken and egg problem – because Verizon’s First Amendment claim must be squelched before it becomes true all on its own.
The government has plenty of good reasons to prefer openness and ubiquity. After all, studies have shown that the benefits of an open transport communication network accrue to all of society, and that those benefits far exceed the short-term benefits to the carriers’ shareholders of extracting deals that shore up the carrier’s stock price.
It’s very important to make clear that this case is not about ‘regulating the Internet.’ It’s about authority to ‘regulate Internet access.’ That’s a very different thing.
The DC Circuit must make clear how ridiculous Verizon’s First Amendment argument is. Otherwise we risk giving up on oversight of a basic networked input into absolutely everything we do and say.
We need to reclaim the regulatory ideal. We need to unleash the human capital that is now stunted in this country. Failing to get this right will wreak havoc.
We have a shared purpose as a nation: We empower the wrongly disenfranchised. It’s in our collective self-interest to get this right, and this appellate case presents a key part of the story.
Verizon v. FCC is the right case to shut down Verizon’s First Amendment argument. Because Verizon is so clearly wrong. And I look forward to the DC Circuit explaining why Verizon is wrong – slowly, clearly, and methodically. The argument on Monday will be illuminating.
Thanks for doing me the honor of listening to me.