The Federal Communications Commission yesterday said it did not violate the First Amendment rights of Internet service providers when it voted to implement net neutrality rules.

Broadband providers who sued to overturn the rules claim their constitutional rights are being violated, but the FCC disputed that and other arguments in a filing in the US Court of Appeals for the District of Columbia Circuit.

ISPs are conduits for the speech of others; they are not delivering their own messages when they connect their customers to the Internet, the FCC argued. Rules against blocking and throttling Internet content thus do not violate the ISPs’ constitutional rights, the FCC said.

“Nobody understands broadband providers to be sending a message or endorsing speech when transmitting the Internet content that a user has requested,” the FCC wrote. “When a user directs her browser to the New York Times or Wall Street Journal editorial page, she has no reason to think that the views expressed there are those of her broadband provider.”

By delivering content requested by customers, broadband providers are acting in the same role as telephone companies, the FCC said.

First Amendment objections have been briefly raised by AT&T, CenturyLink, CTIA-The Wireless Association, and the United States Telecom Association. The argument that net neutrality rules violate broadband providers' First Amendment rights was also made by Verizon back in 2012.

In the current case, the First Amendment objections have been made most forcefully by Alamo Broadband, a small provider in Texas. Alamo argued that ISPs “exercise the same editorial discretion as cable television operators in deciding which speech to transmit.”

The FCC countered that cable TV is different from Internet access because cable TV systems have limited capacity on which to carry channels. ISPs, by contract, face no technological obstacles preventing them from providing access to all lawful Internet content, the FCC said. No-blocking and no-throttling rules thus will not reduce access to any other content, whether offered by third parties or the broadband companies themselves, the FCC argued.

The commission’s net neutrality order issued this year reclassified broadband providers as common carriers. Common carriage principles have been applied to the transportation and communications industries for centuries, “[b]orrowing from English common law traditions that imposed certain duties on individuals engaged in ‘common callings,’ such as innkeepers, ferrymen, and carriage drivers,” a previous court ruling involving the FCC noted.

“The Supreme Court has repeatedly cautioned that common carriers do not share the free speech rights of broadcasters, newspapers, or others engaged in First Amendment activity,” the FCC said in its filing yesterday.

ISPs may sometimes engage in activity protected by the First Amendment “when providing services other than broadband Internet access (like operating their own websites),” but those activities are separate from the Internet service regulated by the net neutrality rules, the FCC said.

No distinctions

The FCC further argued that even if First Amendment principles were relevant in this case, the net neutrality rules would not violate them. The Open Internet rules are content-neutral, meaning they make no distinctions based on content or viewpoint, the FCC said. Content-neutral regulations are allowed if they further important government interests "unrelated to the suppression of free expression," and if they "do not burden substantially more speech than is necessary," the FCC wrote. “That test is easily satisfied here.”

The FCC said the important government interests that its rules promote include ensuring that the public has access to many information sources, ensuring a level playing field by limiting the power of broadband providers to advantage or disadvantage particular companies that provide information over the Internet, and encouraging broadband deployment.

If Internet providers wish to distance themselves from speech with which they disagree, they can do so by publicizing their views on their own websites “or by delivering a message on bill inserts accompanying customers’ monthly bills,” the FCC said.

The FCC’s 157-page brief disputed numerous arguments made by ISPs. Among other things, the commission said it was justified in determining that fixed and mobile broadband are telecommunications services subject to common carrier regulation; that it reasonably accounted for the rules’ impact on network investment; that it met notice and procedural requirements before issuing the rules; and that the FCC has the authority to prohibit paid prioritization.

Oral arguments in the case are scheduled for December 4.