{"id":1918,"date":"2013-09-12T11:00:07","date_gmt":"2013-09-12T11:00:07","guid":{"rendered":"http:\/\/ncjolt.org\/?p=1918"},"modified":"2020-06-04T20:54:00","modified_gmt":"2020-06-04T20:54:00","slug":"fcc-and-verizon-back-to-court-on-net-neutrality-is-information-access-for-the-highest-bidder","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/fcc-and-verizon-back-to-court-on-net-neutrality-is-information-access-for-the-highest-bidder\/","title":{"rendered":"FCC and Verizon Back to Court on Net Neutrality: Is Information Access for the Highest Bidder?"},"content":{"rendered":"

Thursday, September 12, 2013, by Rory Fleming
\nFor 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.\u00a0 Users expect nowadays to pay a set rate to service providers for access to the internet, indiscriminately.\u00a0 Service providers have historically obliged the original philosophy of the net\u2014that \u201call Internet users deserve equal access to online information, no matter whether you use Verizon or Comcast<\/a>\u201d\u2014but this idea of net neutrality been challenged recently in a big way.
\nOn 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<\/i>.\u00a0 At issue is whether the Federal Communication Commission\u2019s method of policing an open internet was an arbitrary and capricious exhibition of the agency\u2019s authority.\u00a0 The FCC has three<\/a> rules<\/a> for Internet Service Providers (ISPs) in providing open internet access: ISPs \u201chave to be transparent about how they handle network congestion,\u201d \u201care prohibited from blocking traffic such as Skype or Netflix on wired networks,\u201d and there cannot be evidence of \u201cunreasonable\u201d discrimination in providing access.<\/p>\n

For Verizon or other ISPs to cite First Amendment concerns over the FCC\u2019s policing of net neutrality shows blindness toward the everyday concerns of American citizens.<\/p><\/blockquote>\n

Verizon\u2019s attorneys argued on brief that the rules were arbitrary and capricious<\/a> under the Administrative Procedure Act in part because there had only been four instances in six years of ISPs actually blocking content<\/a>.\u00a0 They also argued that the power to block content is actually a First Amendment authority granted to the ISP, as an \u201ceditor\u201d of others\u2019 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. \u00a0On 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<\/a>.”
\nFor Verizon\u2019s \u201carbitrary and capricious\u201d claim to stick, it may have to survive the Chevron <\/i>test<\/a> of administrative deference, if the Court decides to apply it.\u00a0 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 \u201cwhether Congress has spoken directly to the precise question at issue.\u201d\u00a0 If Congress has not, the second question is \u201cwhether the agency\u2019s answer is based on a permissible construction of the statute.\u201d\u00a0 Of course, this is a test that grants much decision-making power to agencies\u2014an agency\u2019s action, if not specifically statutorily enumerated, essentially just has to be reasonable.
\nThe argument that an ISP is an Internet publisher is potentially more problematic.\u00a0 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.\u00a0 For Verizon or other ISPs to cite First Amendment concerns over the FCC\u2019s policing of net neutrality shows blindness toward the everyday concerns of American citizens.\u00a0 Would it inhibit the average person\u2019s freedom of speech to implement a tiered system of access and speech according to one\u2019s willingness and ability to pay higher rates?
\n <\/p>\n","protected":false},"excerpt":{"rendered":"

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.\u00a0 Users expect nowadays to pay a …<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1918"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=1918"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1918\/revisions"}],"predecessor-version":[{"id":7585,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1918\/revisions\/7585"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=1918"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=1918"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=1918"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}