Daily Archives: July 3, 2012

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.

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Verizon cites free speech rights in opposing net neutrality rules

The carrier has filed its first brief outlining its arguments in a federal lawsuit, calling the FCC's rules "arbitrary and capricious" -- and unconstitutional.

Bring out the constitutional scholars: Verizon says the Federal Communications Commission's Net neutrality rules violate the right to free speech.

In a nutshell, Verizon argues that the FCC has overstepped its authority with its Net neutrality rules, going so far as to argue that the rules are unconstitutional -- Verizon sees the transmission of data across its network as "speech." As if that's not enough, the carrier argues that the rules are "arbitrary and capricious." In other words, Verizon doesn't believe the rules are necessary given that there hasn't been a big problem of companies slowing down traffic or blocking services on their networks.

Verizon laid out its argument in a brief filed yesterday in the U.S. Court of Appeals for the District of Columbia.

In December 2010, the FCC adopted a set of Net neutrality rules in an effort to protect broadband users from having a service provider slow down traffic or block certain content. The agency adopted those rules after it lost a court battle over having penalized cable and broadband provider Comcast for violating its Net neutrality principles. But a federal court said that the FCC had overstepped its bounds in that case.

Once the rules were officially registered with the government in September of last year, Verizon said it planned to file a lawsuit against the FCC challenging the rules and asking the court to overturn them.

The FCC has until this coming September to file its legal reply with the court.

The Net neutrality debate has been raging for years, with supporters asking for the government to enact rules or laws that protect consumers and promote competition on the Internet.

Those who support Net neutrality argue that the rules are necessary because without them broadband providers, many of whom also provide television service and own their own video content, can favor their content and services over the content and services of a competing company that uses the broadband providers' networks. In other words, Net neutrality proponents fear that Verizon, AT&T, Comcast, Time Warner and others will monkey with traffic from a company like Netflix to encourage customers to use their own video services and ditch a rival like Netflix that uses the broadband network to deliver its movie and TV streaming service. As a result, they may run these other companies out of business.

Meanwhile, those opposing the rules have said for a long time that they are simply unnecessary. The Net neutrality detractors, which include all of the large service providers, argue that broadband companies have an incentive to make sure that they carry all traffic to consumers. What's more, they simply don't like the government controlling rules dictating how the Internet operates.

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Verizon to FCC: Free speech trumps Net neutrality rules

Plans to impose a public interest test on media owners ... Communications Minister Stephen Conroy. Photo: Louise Kennerley

CITING the Magna Carta, free speech and commercial freedom, the bosses of most of Australia's major media organisations have implored the Prime Minister, Julia Gillard, and the Opposition Leader, Tony Abbott, to block further media regulation.

The Communications Minister, Stephen Conroy, told the Herald last week he would take to cabinet within weeks a plan to regulate the media and impose on owners a public interest test.

A public interest test would compromise billions of dollars of Australian and international equity assets, according to the strongly-worded letter, signed by the heads of Foxtel, APN, Seven West Media, NINE, AAP, News Ltd and the Australian News Channel.

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''The Convergence Review has not even been able to define such a test,'' the bosses wrote. ''Frankly, such an approach is quite unacceptable as the basis for managing billions of dollars in asset value in the media sector and will compromise those asset values (and accordingly Australian and international equity holders) negatively - this is both unfair and inequitable.''

Letters addressed to the Prime Minister and Opposition Leader commend the Coalition for its public support of press freedom.

They claim if the government's public interest test (which could apply to the Fairfax majority stakeholder Gina Rinehart) is approved, there would be a ''massive increase in regulation'' on ''subjective, vague and imprecise'' grounds, which would stymie free speech.

''While a 'public interest test' may have an appealing-sounding ring to it, it is really, in our view, nothing more than a political interest,'' the bosses argue.

''It has the capacity to be misused by politicians of all persuasions to block the acquisition of media companies by people they do not agree with or simply do not like.''

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A wordy attempt to save free speech