• by Wendy Davis  @wendyndavis, January 17, 2013

Verizon's argument that net neutrality rules infringe its free speech rights is "at odds with common sense," four former Federal Communications Commission members argue in a new court filing.

"Verizon’s arguments fail as a matter of constitutional principle," they argue. "There is nothing inherently expressive about transmitting others’ data packets, at a subscriber’s direction, over the Internet."

The coalition adds that Verizon's free-speech argument has wide-ranging repercussions that could affect a host of regulations. "Were Verizon’s theories credited, Congress’s historic power to take and authorize measures to preserve openness of communication networks would be unsettled and dramatically narrowed," they say in a friend-of-the-court brief filed on Wednesday.

The brief was filed on behalf of a group that includes four former FCC commissioners -- Reed Hundt, Michael Copps, Tyrone Brown and Nicholas Johnson.

The neutrality rules, which took effect in 2011, ban all broadband providers -- wireline as well as wireless -- from blocking sites or competing applications. The regulations, which took effect last year, also prohibit wireline providers from engaging in unreasonable discrimination.

Verizon is arguing to the Court of Appeals for the D.C. Circuit that the rules should be vacated for several reasons, including that they run afoul of free speech principles by requiring transmission of other companies' communications. The First Amendment generally prohibits the government from either censoring speech or forcing people to say something.

While Verizon makes other arguments against the neutrality regulations, its free-speech theories have drawn attention from a host of outside groups. Last year, a coalition of influential libertarian organizations backed Verizon's argument that the rules wrongly restrict the company's First Amendment rights. Those groups -- TechFreedom, the Competitive Enterprise Institute, the Free State Foundation and the Cato Institute -- contend that the regulations wrongly compel broadband providers to "post, send, and allow access to nearly all types of content, even if a broadband provider prefers not to transmit such content."

Digital rights advocates countered in previous filings that Verizon -- and the libertarian groups -- are wrong. The neutrality proponents say that open Internet rules don't infringe speech because the rules only apply when the company is acting as an intermediary for other parties' communications -- not when the company speaks on its own behalf.

The most recent filing by the four former FCC commissioners urges the appeals court to "explicitly repudiate Verizon’s effort to 'constitutionalize' matters, involving adjustment of complex, competing private and public interests, that have long and properly been understood to be for legislative and administrative resolution."

Separate from the free-speech issue, Verizon also argues that the FCC lacked authority to issue neutrality rules. The telecom argues that the Court of Appeals already ruled in a case involving Comcast that the FCC lacks authority to regulate broadband -- which is classified as an "information" service and not a telecommunications service. In the Comcast decision, the appeals court vacated an order sanctioning the cable company for violating neutrality principles by throttling peer-to-peer traffic. At the time, the principles hadn't yet been codified into regulations.