Last week, Verizon filed a brief with the U.S. Court of Appeals for the D.C. Circuit laying out their various and sundry complaints against the Federal Communications Commission's Open Internet Order, which put net neutrality regulations in place for Internet service providers. The telecom giant is suing to have the FCC's order thrown out, and one of their legal arguments is raising more than a few eyebrows. Verizon, per the court document, considers itself your Internet editor. Or your Internet editor-in-waiting.
It goes like this: 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. 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 -- that it is no different from a newspaper editor:
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.
This argument is fraught with problems. Jeff Jarvis observes that if Verizon is asserting editorial control over the content that passes over its pipes, then that implies ownership of that content. "Does Verizon really want to be responsible for everything distributed on the net, including libel, theft, and other illegal behavior? I doubt it." Verizon cites as precedent Turner Broadcasting System, Inc. v. FCC (1994), in which the Supreme Court ruled that cable companies enjoy First Amendment protection because they exercise editorial discretion in transmitting the speech of others, and are not merely neutral pathways over which speech is transmitted without restriction or interference. Internet service providers, per Verizon's reasoning, are no different.
Cable television companies want you to watch cable television. More to the point, they don't want you to cancel your cable subscription and give that money to online purveyors of televised entertainment -- Netflix, Hulu, etc. But that's business, right? Companies compete with each other, and consumers make their choices based on quality of service.
Cable companies like Comcast and Time Warner are also internet service providers. They control the pipes, as such they have the means and the incentive to encourage you to consume cable TV, and discourage you from seeking out online streaming video. Are they engaging in such wildly anticompetitive activities? The Justice Department aims to find out.
The Wall Street Journal reported late Tuesday that DOJ "is conducting a wide-ranging antitrust investigation into whether cable companies are acting improperly to quash nascent competition from online video." What's at issue? Data caps, and the abuse thereof.