FCC and Verizon Back to Court on Net Neutrality: Is Information Access for the Highest Bidder?

September 12, 2013

Thursday, September 12, 2013, by Rory Fleming
For many, the Internet represents the best aspects of a free world: it is egalitarian (in theory), most anyone can have their say (not all of it is nice), and a user is all ready to go once service is turned on.  Users expect nowadays to pay a set rate to service providers for access to the internet, indiscriminately.  Service providers have historically obliged the original philosophy of the net—that “all Internet users deserve equal access to online information, no matter whether you use Verizon or Comcast”—but this idea of net neutrality been challenged recently in a big way.
On Monday, September 09, 2013, the U.S. Court of Appeals for the D.C. Circuit Court heard oral arguments from the two sides in a landmark case: Verizon v. FCC.  At issue is whether the Federal Communication Commission’s method of policing an open internet was an arbitrary and capricious exhibition of the agency’s authority.  The FCC has three rules for Internet Service Providers (ISPs) in providing open internet access: ISPs “have to be transparent about how they handle network congestion,” “are prohibited from blocking traffic such as Skype or Netflix on wired networks,” and there cannot be evidence of “unreasonable” discrimination in providing access.

For Verizon or other ISPs to cite First Amendment concerns over the FCC’s policing of net neutrality shows blindness toward the everyday concerns of American citizens.

Verizon’s attorneys argued on brief that the rules were arbitrary and capricious under the Administrative Procedure Act in part because there had only been four instances in six years of ISPs actually blocking content.  They also argued that the power to block content is actually a First Amendment authority granted to the ISP, as an “editor” of others’ content. Counsel for the FCC argued that it was within their authority to regulate net neutrality as a result of the Telecommunications Act of 1996 and the Communications Act of 1934.  On brief, the FCC argued that “Internet access providers do not engage in speech; they transport the speech of others, as a messenger delivers documents containing speech,” and, as such, “broadband providers do not exercise editorial discretion.”
For Verizon’s “arbitrary and capricious” claim to stick, it may have to survive the Chevron test of administrative deference, if the Court decides to apply it.  The first question to be asked in a case where the authority of an agency to interpret a statute and act accordingly is challenged is “whether Congress has spoken directly to the precise question at issue.”  If Congress has not, the second question is “whether the agency’s answer is based on a permissible construction of the statute.”  Of course, this is a test that grants much decision-making power to agencies—an agency’s action, if not specifically statutorily enumerated, essentially just has to be reasonable.
The argument that an ISP is an Internet publisher is potentially more problematic.  It can be said that an ISP does not contribute to the conversation transpiring on the Internet any more than the paper that books are published on contributes to the transference of ideas therein.  For Verizon or other ISPs to cite First Amendment concerns over the FCC’s policing of net neutrality shows blindness toward the everyday concerns of American citizens.  Would it inhibit the average person’s freedom of speech to implement a tiered system of access and speech according to one’s willingness and ability to pay higher rates?