Net Neutrality Unconstitutional, Public Interest Groups Tell Appeals Court
Washington D.C., July 24, 2012 — On July 23, TechFreedom and the Competitive Enterprise Institute, along with the Free State Foundation and the Cato Institute, filed a brief amici curiae (PDF) with the Court of Appeals for the D.C. Circuit arguing that the FCC’s 2011 “Preserving the Open Internet” Order is unconstitutional. By denying providers their constitutional rights, the groups argue, the FCC’s rule forces consumers to bear the costs of building tomorrow’s networks, foreclosing novel business models in which content companies share part of that burden.
"The FCC’s net neutrality rule violates both the First and Fifth Amendments: It compels Internet providers to speak and deprives them of their property rights without just compensation," said Ryan Radia, Associate Director of the Center for Technology & Innovation at the Competitive Enterprise Institute. “The problems the rule purports to solve are theoretical, but its impact on constitutional rights will be very real. Net neutrality regulation denies Internet providers their First Amendment right to choose what speech to allow on their networks, effectively compelling providers to convey all content companies’ messages—for free. Granting content companies nearly unfettered, free use of Internet providers’ private networks amounts to a permanent ‘virtual easement’."
The brief also rejects the FCC's claims of "ancillary" jurisdiction to regulate matters beyond what Congress has specifically assigned to the agency.
"We're asking the Court to rein in an agency that it's previously criticized for making sweeping claims of authority that would 'virtually free the Commission from its congressional tether,'" said Berin Szoka, President of TechFreedom. "There's no evidence to support the FCC's view that broadband and content providers are fundamentally at odds. But if broadband operators ever do abuse market power by blocking access to competitors, that's a problem existing antitrust laws can address. Those who think current antitrust mechanisms work too slowly should dust off the Digital Age Communications Act, a compromise proposal offered by The Progress & Freedom Foundation in 2005, allowing the FCC to issue rules on the basis of antitrust standards. But if the FCC can simply invent authority to regulate the Internet today, there is no limit to what it might do tomorrow."
The case is Verizon v. FCC (D.C. Cir. No. 11-1355) and this amicus brief is available here. John Elwood and Eric White of Vinson & Elkins LLP served as pro bono counsel on this brief, as they did on an amicus brief in which TechFreedom joined with CEI and Cato last year, challenging the FCC's indecency regulations.
For more on the constitutional violations of the FCC’s network neutrality rule, see:
• Randolph J. May, Net Neutrality Mandates: Neutering the First Amendment in the Digital Age, 3 I/S: A J. of Law and Pol’y for the Info. Soc’y 198, 209 (2007);
• Daniel Lyons, Virtual Takings: The Coming Fifth Amendment Challenge to Net Neutrality Regulation, 86 Notre Dame L. Rev. 66, 97 (2011).