Opinion

Verizon attack on Internet misguided john diaz

FILE - 18 OCTOBER, 2012: According to Verizon's third-quarter reports, net income rose 15%, to $1.59 billion (56 cents per share), up from $1.38 billion (49 cents a share) a year ago. According to Verizon Communications Inc., its wireless business reported record high margins and improved revenue and still on pace to meet its 2012 financial goals. SAN FRANCISCO - OCTOBER 04: A pedestrian walks by a Verizon Wireless retail store on October 4, 2010 in San Francisco, California. Verizon Wireless is set to give refunds to 15 million of its subscribers who complained of "mystery fees" on bills for services that they did not initiate. The total could end up being over $90 million in compensation. (Photo by Justin Sullivan/Getty Images) less FILE - 18 OCTOBER, 2012: According to Verizon's third-quarter reports, net income rose 15%, to $1.59 billion (56 cents per share), up from $1.38 billion (49 cents a share) a year ago. According to Verizon ... more Photo: Justin Sullivan, Getty Images Photo: Justin Sullivan, Getty Images Image 1 of / 1 Caption Close Verizon attack on Internet misguided 1 / 1 Back to Gallery

Verizon takes the prize for most outrageous claim of a First Amendment right. Its challenge to the 2010 Federal Communications Commission rule that requires an open Internet - effectively preventing the companies that provide online connections from censoring or favoring content - as an abridgement of Verizon's free speech.

If Verizon's argument as presented to a federal appeals court holds, then the constitutional guarantee of "free speech" suddenly would include the right to suppress someone else's ability to transmit or receive information.

"The word 'irony' does not do it justice," Reed Hundt, FCC chair from 1993 to 1997, said of Verizon's free-speech play. Hundt recently wrote a brief against Verizon's attempt to torpedo the FCC's "net neutrality" rule.

Verizon's argument, absurd on its face, veers to the bizarre when it tries to compare the role of broadband service provider to that of a newspaper.

Verizon suggests in its federal court filing that broadband providers possess "editorial discretion" - and should be free to feature some content over others, or exclude content, just as a newspaper decides what is and is not fit for publication.

Such an argument, of course, misses the essence of the Internet, which is to allow the user to act as his or her own editor in deciding what is of interest.

Here's the twist: Verizon clearly knows better. Its joint statement with Google about the prospect of open-Internet rules in early 2010 stated: "The minute that anyone, whether from the government or the private sector, starts to control how people access and use the Internet would be the beginning of the end of the 'net as we know it."

Ed McFadden, a Verizon spokesman, noted in a phone interview last week that "even before these rules were around, we've been living under them voluntarily." He reiterated in a follow-up e-mail that his company and others "will make all lawful content available to their customers, and that customers should be able to go where they want and do what they want on the Internet."

So why would Verizon mount a significant legal challenge to rules it maintains it is committed to follow? A skeptic might deduce that the company sees future profit opportunities in broadband Internet service. Its control of the gateway could be parlayed into an advantage for its own products by slowing or blocking a competitor's traffic or extracting fees from content providers who want to reach Verizon's customers.

Verizon has maintained that its motivation is on principle, not profit.

"The overarching issue, as Verizon's filing makes clear, is that we remain concerned that the FCC's sweeping assertion in this case exceeds its statutory authority and constitutional limits," McFadden wrote in an e-mail.

Verizon's argument defies a long history of court cases that have upheld the federal government's authority to ensure that communication networks are not used to suppress competition, limit access to a multitude of voices or restrict a user's right to free speech. These nondiscrimination principles were established in the early days of telegraph and telephone regulation.

As Hundt pointed out, "A phone company cannot interfere with what I say to you and what you say to me ... the phone company doesn't get to be a censor."

While Verizon's free-speech claim might seem too loony to be taken seriously, the U.S. Supreme Court's 2010 landmark Citizens United ruling brought corporate rights to a new level. In that case, the high court struck down campaign laws that restricted the ability of corporations, labor unions and other groups to spend money on ads promoting or opposing candidates. In a 5-4 ruling, the majority held that the ban was an unconstitutional infringement on free speech.

The Citizens United decision does not necessarily foretell a positive reception for Verizon if its case, now at the appellate level, were to reach the high court. After all, the Citizens United case was, in the words of the majority opinion, about government interfering with the "marketplace of ideas."

Citizens United was about the ability of a corporation or labor union to spend money to express its views. Verizon's case comes down to whether government can interfere with an Internet service provider's ability to make money by suppressing others' attempt is to communicate - or sell products - over a broadband network. In a court filing, the FCC suggested its rule would prevent a service provider from blocking voice and video competitors such as Skype or Netflix. Without the open Internet rule, the FCC warned, "the next Google or Facebook might never begin."

If Verizon is truly committed to an open Internet - as it claims to be - then it should drop its legal challenge to a rule that preserves it.