Verizon has told the U.S. Court of Appeals for the D.C.
Circuit that its recent ruling in a National Labor Relations Board case
forecloses the FCC's argument in defense of network neutrality rules that
broadband providers are not speakers but only "conduits" for speech.
In its January filing to the court, the FCC said that
Verizon and other broadband providers "do not engage in speech; they
transport the speech of others, as a messenger delivers documents containing speech."
It drew the distinction between that and "cable systems, newspapers, and
other curated media," saying that broadband providers "do not
exercise editorial discretion."
In a filing with the court on Wednesday, attorneys for
Verizon, which has challenged the FCC's open Internet order, pointed to the
case, National Association of Manufacturers [NAM], et al. v. National Labor
Relations Board [NLRB], decided by the circuit May 7 to argue that the FCC was
wrong.
In that decision, the court pointed to what it said were
"some firmly established principles of free speech law," including
"the ‘dissemination of messages others have created is entitled to the same
level of protection as the ‘creation' of messages."
"NAM found that the posting rule compelled speech by
requiring the dissemination of information created by others and stressed that
it is no answer, when such speech is involved, to say that alternative avenues
of communication remain open," said Verizon in the filing. "The NLRB
argued that an employer could still 'legally express its opinion regarding
unionization,' but the Court squarely rejected this argument because it did not
cure the core compelled-speech problem. The FCC makes the same mistake when it
contends that 'Verizon remains free to convey any content it wishes.' What
matters is that the 'net neutrality' rules, like the posting rule, compel
providers to carry speech they may not wish to disseminate."
The FCC also argued that even if it was wrong and the First
Amendment does apply, "the Open Internet Rules are narrowly tailored to
serve important government interests."
No oral argument date has been set of the net
neutrality challenge, and now is not likely happening until the fall, according
to an attorney familiar with the case.
