AT&T: Net Neutrality Rules Violate Our First Amendment Rights

In a statement of issues (pdf) outlining its legal assault on the FCC's net neutrality rules, AT&T makes it clear it will claim the new rules violate the company's First Amendment rights. The filing doesn't really detail AT&T's full legal reasoning, but the telco plans to argue that the FCC's new rules "violate the terms of the Communications Act of 1934, as amended, and the First and Fifth Amendments to the US Constitution."

It's an argument the cable industry used in 2009 when trying to stop the FCC's original, flimsier, net neutrality rules.

Verizon argued the same thing when it successfully dismantled those rules in 2010 via lawsuit. "Broadband networks are the modern-day microphone by which their owners engage in First Amendment speech," Verizon claimed at the time.

Verizon won in court, but not because of its Constitutional arguments.

The FCC's original rules tried to apply common carrier type restrictions on broadband providers, something the court declared the FCC couldn't do -- unless it formally declared broadband ISPs to be common carriers under Title II. As such, the FCC formally declared ISPs as common carriers back in February, and now believes it operates on firm legal footing.

CenturyLink, the CTIA and USTelecom have also cited the First and Fifth Amendments in their own statement of issues, notes Ars Technica. AT&T is effectively suing the FCC twice for good measure; once on its own, and once as a member of USTelecom.

The First Amendment has been trotted out by broadband industry lawyers for a number of different legal efforts.

Verizon tried to argue in 2007 that the First Amendment protected its right to participate in the government's warrantless domestic surveillance program. Other ISPs, like Charter Communications, have leaned on the First Amendment when trying to dodge local video franchise obligations