By Zach Epstein
Court documents filed earlier this month with the United States Court of Appeals provide insights into Verizon’s complaints with the Federal Communications Commission over its Open Internet Order. The carrier sued the FCC earlier this year in an effort to have the order reversed and as Media Matters reports, one of Verizon’s legal arguments is questionable at best.
“The Open Internet Order says that Verizon, as a provider of broadband Internet, can’t block or slow access to (legal) online content because they disagree with its message or are being paid by an outside party to do so,” Media Matters’s Simon Maloy wrote. “This is essentially how the internet has operated since its inception, and the Open Internet Order is intended to prevent ISPs like Verizon from becoming gatekeepers. Verizon, however, argues that it has the constitutionally protected right to decide which content you, as a Verizon customer, can access.”
The key section from Verizon’s filing:
Broadband providers transmit their own speech both by developing their own content and by partnering with other content providers and adopting that speech as their own. For example, they develop video services, which draw information from, and are then made available over, the Internet. Many also select or create content for their own over-the-top video services or offer applications that provide access to particular content. They also transmit the speech of others: each day millions of individuals use the Internet to promote their own opinions and ideas and to explore those of others, and broadband providers convey those communications.
In performing these functions, broadband providers possess “editorial discretion.” Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others. Although broadband providers have generally exercised their discretion to allow all content in an undifferentiated manner, Order ¶ 14 (JA__), they nonetheless possess discretion that these rules preclude them from exercising.
Broadband providers possessing “editorial discretion” even remotely comparable to that of a newspaper editor is a tough pill to swallow, and the FCC’s legislation finally takes steps toward preventing ISPs from editing the Internet as observed by their subscribers. Verizon’s lawsuit makes it clear that it wants to maintain the right to censor the Web, however, a right that is directly threatened by the FCC’s Open Internet Order.
