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Verizon: U.S. Constitution Allows Data Throttling

Verizon Communications sent ripples across the Internet on Tuesday, making statements that should have backers of net neutrality up in arms. The company indicated that it has the right to throttle bandwidth whenever it wants, and that throttling is allowed by way of the U.S. Constitution. Even more, Verizon states that net neutrality rules enforced by the Federal Communications Commission (FCC) violates its First Amendment rights to freedom of speech.

In a legal brief filed with the United States Court of Appeals for the DC Circuit on Monday, Verizon argued that the FCC's net neutrality rules exceeded the agency's regulatory authority, as Congress supposedly hasn't given the FCC the power to impose those regulations. The rules also reportedly violate its constitutional rights: freedom of speech via the First Amendment and property rights via the Fifth Amendment.

"Broadband networks are the modern-day microphone by which their owners [e.g. Verizon] engage in First Amendment speech," Verizon writes.

In the argument, the company compares itself to newspaper editors which control what appears in their papers. "Although broadband providers have generally exercised their discretion to allow all content in an undifferentiated manner, they nonetheless possess discretion that these rules preclude them from exercising," Verizon writes. "The FCC’s concern that broadband providers will differentiate among various content presumes that they will exercise editorial discretion."

As an example, Verizon points to a 1994 case where the Supreme Court ruled that regulations requiring cable television providers to carry broadcast television channels triggered First Amendment scrutiny. Based on that, Verizon claims that network neutrality rules trigger First Amendment concerns by restricting broadband providers' rights to allocate more bandwidth to some content than to others.

As for violating the Fifth Amendment, Verizon claims that the FCC's rules equal to the "government compulsion to turn over [network owners'] private property for use by others without compensation." They are also the "equivalent of a permanent easement on private broadband networks for the use of others without just compensation."

The Fifth Amendment prohibits the taking of private property without compensation.

As Ars Technica points out, Verizon is "digging its heels" against the regulation of its network. If the FCC is discovered to have exceeded its authority under telecommunications laws, Congress may respond by changing the law to explicitly authorize network neutrality regulations. Yet if Verizon's constitutional arguments are accepted by the court, then a constitutional amendment may be required to impose the network neutrality rules on Verizon.