‘NLRB’ Decision Shouldn’t Help Verizon in Net Neutrality Case, FCC Tells Court

In National Association of Manufacturers v. NLRB, the D.C. Circuit struck down the rule, under which an employer’s failure to post the notice counted as an “unfair labor practice.” The court cited First Amendment cases prohibiting compelled speech. The NLRB’s arguments that an employer has additional avenues to express its own opinions about unionization, the court said, did not cure the underlying compelled-speech problem.

"The FCC makes the same mistake when it contends that ‘Verizon remains free to convey any content it wishes,'” wrote Wiley Rein attorney Helgi Walker on behalf of Verizon. “What matters is that the ‘net neutrality’ rules, like the posting rule, compel providers to carry speech they may not wish to disseminate.”

"The Open Internet rules do not resemble that regulation,” FCC counsel Joel Marcus told the court Thursday. “Broadband providers need not convey any specific message, let alone a government-designated one. Providers must only refrain from blocking access to web sites of their customers’ choice. Indeed, because Internet access service serves principally as a conduit for Internet content, broadband providers are not speakers at all. Verizon has defended itself against subpoenas on that very ground."

The Open Internet rules aren’t implicated by the NLRB decision, because the court held that in the absence of compulsory government-devised messages, a “compelled speech violation” could only occur when “the complaining speaker’s own message was affected by the speech it was forced to accommodate,” Marcus said, quoting the decision. In contrast, Verizon “remains free to convey any content of its choice on its facilities, to host its own website, or to provide edited service reflecting Verizon’s choice of content,” Marcus said.

Verizon “overstates the relevance” of the NLRB case, said Wiltshire Grannis attorney and former FCC General Counsel Christopher Wright. Verizon argues the ruling “forecloses the FCC’s argument” that the First Amendment doesn’t prohibit the commission from ordering broadband providers not to block access to websites. But “there is plainly at least an arguable difference between the NLRB ordering employers to post a notice written by the NLRB and the Open Internet rule, which does not require the posting of any speech by the FCC,” said Wright.

The exchange highlights the FCC’s reliance on the argument that broadband ISPs are nothing more than conduits for Internet content, Wright told us. “If the court does not agree with that proposition, but instead thinks that broadband providers are comparable to cable providers, First Amendment interests are plainly at stake,” Wright said. “And cable providers generally have the right to select their content, although the Supreme Court held that Congress was able to overrule that right in the must-carry cases."

The dueling letters represent competing theories of how to analyze the net neutrality regulations, said Public Knowledge Senior Vice President Harold Feld. If one agrees with the FCC’s position that net neutrality is about “the business of Internet service,” then the NLRB precedent wouldn’t apply because there’s no balancing of a First Amendment interest against a government interest. To those like Verizon who view net neutrality as a First Amendment issue, NLRB is relevant, he said. “The reality is that if the court agrees that NLRB is relevant because this is a speech issue, then the FCC has probably already lost,” Feld said.

"The Commission is absolutely right,” said communications attorney Andrew Schwartzman, who called NLRB “wholly distinguishable.” Verizon operates a conduit; it is not a speaker, said Schwartzman, who filed an amicus brief in support of the FCC on behalf of Columbia Law Prof. Tim Wu. Unlike the cable TV context, Verizon “isn’t even exercising any editorial function by selecting a menu of content for users,” Schwartzman said. “Verizon can’t call itself a speaker and at the same time claim immunity from libel and other laws because it is simply republishing others’ speech."

To Penn State law professor Robert Frieden, the First Amendment discussion is a “distraction” from the “core issue” of whether the FCC has jurisdiction, and how reasonable the rules are, he said. “At best, ISPs have limited First Amendment rights as content packagers along the lines of what cable television operators have.” The Open Internet rules “unreasonably foreclose ISPs from creating and packaging content,” said Frieden. Frieden said he sees the need for a referee to resolve “likely” access and interconnection disputes, but favors commercial negotiations as the “first, best solution” before the FCC steps in.

Scott Cleland, chairman of NetCompetition, thinks the order is “highly vulnerable” on both the facts and the FCC exceeding its statutory authority, and thinks the court won’t need to reach First Amendment issues to overturn the Open Internet order. If it does, though, ISPs “have clear characteristics of companies and functions that have already been afforded some First Amendment protection” like newspapers, broadcasters and cable providers, he said.

While Arlington v. FCC might have made Verizon’s statutory authority challenge marginally more difficult (CD May 21 p1), the NLRB decision has made the telco’s First Amendment challenge stronger if the court reaches the constitutional issue, said Free State Foundation President Randolph May. “The key point of the NLRB decision is the reaffirmation, as a matter of First Amendment jurisprudence, of the longstanding principle that the right to disseminate another’s speech necessarily includes the right to decide not to disseminate it,” May said. The net neutrality rules stop ISPs from blocking access to websites that have content they don’t want to disseminate: “The FCC argues this is irrelevant because the ISPs are not speakers, but mere conduits,” May said. “I don’t think the court will buy it.”