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Amicus Brief by Tim Wu, No. 11-1355 (D.C. Cir.)

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Released: November 15, 2012
USCA Case #11-1355 Document #1405253 Filed: 11/15/2012 Page 1 of 31

ORAL ARGUMENT NOT YET SCHEDULED


No. 11-1355

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT


VERIZON, ET AL.,

Appellants/Petitioners,
v.

FEDERAL COMMUNICATIONS COMMISSION
and UNITED STATES OF AMERICA,

Appellee/Respondents.

On Petitions for Review and Notices of Appeal of an
Order of the Federal Communications Commission


FINAL BRIEF OF AMICUS CURIAE

TIM WU FOR

AFFIRMANCE IN SUPPORT OF APPELEE/RESPONDENTS












ANDREW JAY SCHWARTZMAN
2000 PENNSYLVANIA AVENUE, NW
SUITE 4300
WASHINGTON, DC 20006
ANDYSCHWARTZMAN@GMAIL.COM
(202) 232-4300
Counsel for Amicus Curiae

November 15, 2012

USCA Case #11-1355 Document #1405253 Filed: 11/15/2012 Page 2 of 31
STATEMENT REGARDING CONSENT TO FILE, SEPARATE
BRIEFING, AUTHORSHIP AND MONETARY CONTRIBUTIONS
All parties have consented to the filing of this brief. Amicus curiae filed
notice of his intent to participate on November 9, 2012.
Pursuant to Rule 29(c), Federal Rules of Appellate Procedure, amicus curiae
states that no counsel for a party authored this brief in whole or in part, and no
counsel or party made a monetary contribution intended to fund the preparation or
submission of this brief. No person other than amicus curiae or his counsel made a
monetary contribution to its preparation or submission.
Pursuant to D.C. Circuit Rule 29(d), amicus curiae certifies that no other
brief of which he is aware addresses the historical framework of
telecommunications technologies or applies that framework to historical
jurisprudence of telecommunications or to the constitutional issues which have been
presented in this case. To the best of the knowledge of amicus curiae, there will be
three other briefs amicus curiae supporting Appellee/Petitioners, but none of them
overlap with the arguments presented herewith. Amicus curiae believes that
former FCC Chairman Reed Hundt and others will submit a brief largely
addressing different aspects of the First Amemdent issues, as well as Fifth
Amendment concerns. Amicus curiae believes that Internet engineers and
technologists will focus upon the details of broadband technology in their brief.
Amicus curiae believes that the Center for Democracy and Technology, et al. will
present a detailed analysis of contemporary First Amendment jurisprudence.
i

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In light of the different foci of these briefs, and the importance and
complexity of this case, amicus curiae certifies that filing a joint brief is not
practicable and that it is necessary to submit separate briefs.
ii

USCA Case #11-1355 Document #1405253 Filed: 11/15/2012 Page 4 of 31

CERTIFICATE AS TO PARTIES, RULINGS

AND RELATED CASES

A. Parties
All parties are listed in the Brief of Appellee/Respondents.

B. Rulings Under Review


References to the ruling at issue appear in the Brief for
Appellee/Respondents.

C. Related Cases

Amici curiae adopt the statement of related cases presented in the
Brief for Appellee/Respondents.


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TABLE OF CONTENTS
Statement Regarding Consent to File,
Separate Briefing, Authorship
And Monetary Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Certificate as to Parties, Rulings and Related Cases . . . . . . . . . . . . . . iii
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Interest of Amicus Curiae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I.
Distribution of Information Is Distinct from Publishing under the
First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A.
Transmitters do not become protected speakers based on the
potential power to block or prioritize content . . . . . . . . . . . . 4
B.
Verizon’s Transport Business is appropriately analyzed as a
form of conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
II.
Holding the Order Unconstitutional Would Be at Odds with
Centuries of Traditional Oversight of Both Transportation and
Communications Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A.
Common Law, State and Federal regulation of telegraph
firms similar in nature to the Order were upheld against all
Constitutional challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
B.
Twentieth Century common carriage regulation of the
telegraph, telephone, and radio were also unchallenged
under the First Amendment . . . . . . . . . . . . . . . . . . . . . . . . 17
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Table of Authorities
Cases
Eldred v. Ashcroft, 537 U.S. 186 (2003) .......................................................... 1, 2
Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001) aff’d, Eldred v. Ashcroft,
537 U.S. 186 (2003) ......................................................................................... 18
Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241(1974) ................................ 5, 6
Pensacola Tel. Co. v. W. Union Tel. Co., 96 U.S. 1 (1877) ................................ 16
People v. Lauria, 251 Cal. App. 2d 471 (1967) ................................................... 4
Pittsburgh Press Co. v. Pittsburg Comm’n on Human Relations, 413
U. S. 376 (1973) ................................................................................................ 6
Primrose v. W. Union Tel. Co., 154 U.S. 1 (1894) ....................................... 12, 15
Religious Tech. Ctr. v. Netcom On-Line Commc’n Services, Inc., 907
F.Supp. 1361, 1370 (N.D. Cal. 1995) ............................................................... 4
Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S.
47 (2006) ........................................................................................................ 7, 9
Rutan v. Republican Party of Ill., 497 U.S. 62 (1990) ..................................... 18
Spence v. State of Wash., 418 U.S. 405 (1974) ........................................... 3, 6, 9
Turner Broad. Sys., Inc., v. F.C.C., 512 U.S. 622 (1994).......................... 2, 5, 17
United States v. Peoni, 100 F.2d 401 (2d Cir. 1938) .......................................... 4
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W. Union Tel. Co v. State of Tex., 105 U.S. 460 (1881) .................................... 16
Statutes
17 U.S.C. 512(a) ................................................................................................... 4
17 U.S.C. 512(j)(1)(B) ......................................................................................... 10
1866 National Telegraph Act, ch. 230, 14 Stat. 221 ........................................ 14
Act of Apr. 12, 1848, ch. 265, 1848 N.Y. Laws 392 ........................................... 14
Communications Act of 1934, ch. 652, 48 Stat. 1064 ...................................... 17
Interstate Commerce Act, Pub.L. 49-104, 24 Stat. 379 (1887) ................. 12, 16
Mann-Elkins Act of 1910, ch. 309, 36 Stat. 539 ............................................... 17
Other Authorities
Douglas K. Adie, Monopoly Mail: The Case for Privatizing the United
States Postal Service (1988) ........................................................................... 12
Joseph Clarence Hemmeon, The History of the British Post Office
(1912) ............................................................................................................... 12
Richard R. John, Network Nation: Inventing American
Telecommunications (2010) ............................................................................ 14
Tim Wu, The Master Switch (2010) .................................................................. 13


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GLOSSARY
Fedex
FedEx Corporation
Order
Preserving the Open Internet, 25 F.C.C.R. 17905
(2010), 76 Fed. Reg. 59192 (Sept. 23, 2011)
vii

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INTEREST OF AMICUS CURIAE
Amicus curiae is the Isidor and Seville Sulzbacher Professor of Law at
Columbia University, and former senior advisor to the Federal Trade
Commission. He is the author of two books on the history of the Internet and
earlier media technologies: The Master Switch (2010) and Who Controls the
Internet (2006) (with Jack Goldsmith).
SUMMARY OF ARGUMENT

Verizon and MetroPCS (hereinafter, “Verizon”) argue that Preserving
the Open Internet, 25 F.C.C.R. 17905 (2010), 76 Fed. Reg. 59192 (Sept. 23,
2011) (the “Order”) violates their rights under the First Amendment. Should
it reach the question, the Court should reject the argument.

“To comprehend the scope of Congress' power ... ‘a page of history is
worth a volume of logic.’” Eldred v. Ashcroft, 537 U.S. 186, 200 (2003)
(quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes,
J.)). When laws stand unchallenged for most of American history, there is
reason to presume their Constitutionality. Transmitters similar to Verizon
have been subject to non-discrimination duties similar to those imposed by
the Order since the 1840s. There is no way to hold the Order
unconstitutional without implying the same for much of more than a century
and a half of similar regulations, including many, like the Order, that
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imposed non-discrimination rules but not full common carriage duties. To
suggest that laws in force for most of the Republic’s history were actually
unconstitutional would be a dramatic outcome indeed.

The critical legal distinction here is that between publishers and
distributor / transmitters, which crosses multiple legal regimes. Publishers
are firms that actively choose a “repertoire” of content they wish to present
to their audiences, bear public and legal responsibility for it, and are
protected under the First Amendment based on their exercise of editorial
judgment in the selection of their repertoire. Turner Broad. Sys., Inc., v.
F.C.C., 512 U.S. 622, 636-637 (1994). A transmitter, in contrast, primarily
moves information according to the direction of its users, has only vague
knowledge of what it carries, is not usually identified with the content, and
is not held criminally or civilly responsible for any crimes or torts it
facilitates. While a transmitter typically does have the technical capacity to
block or prioritize content, that capacity alone has never created
a protected speaker under the First Amendment.

There is no factual dispute that Verizon, as broadband provider, falls
within the transmitter category. It provides a service that moves content
from one place to another, without actual knowledge of what it makes
available, and it takes full advantages of the lack of legal responsibility
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thereby conferred. Even if Verizon performed much more prioritization, it
would not resemble a publisher, but merely begin to resemble Fedex, not the
Wall Street Journal.

Erasing the line between publishers and transmitters, by granting
Verizon the First Amendment protections reserved for publishers, would
break sharply with more than a century of historical practice, and have
unpredictable consequences. Historically and to this day, states and
Congress have regulated firms that move information and have the technical
capacity to decide how they do so, including physical carriers like Fedex and
UPS, local and long distance telephone companies, and others. To hold that
all of these entities are now First Amendment speakers would open the
proverbial can of worms.

Instead, the proper mode of analysis for Verizon’s business model is to
examine it as a form of conduct. Under well-established First Amendment
precedent, its transportation business is protected speech only if it is
“inherently expressive,” which is to say if “[a]n intent to convey a
particularized message was present” and “the likelihood was great that the
message would be understood by those who viewed it.” Spence v. State of
Wash., 418 U.S. 405, 410-11 (1974).

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I.
DISTRIBUTION OF INFORMATION IS DISTINCT FROM
PUBLISHING UNDER THE FIRST AMENDMENT.

A. Transmitters do not become protected speakers based on the
potential power to block or prioritize content.


A longstanding line in First Amendment jurisprudence and other areas
distinguishes between publishers and distributors / transmitters of
information.1 A publisher actively and knowingly selects the content it
provides its audience, is identified with its choices, and bears legal
responsibility for those choices: paradigmatic examples are book publishers,
newspapers, and television broadcasters. A transmitter, by contrast,

1
In the criminal law, the transmitter / publisher distinction is reflected
by the interpretation of the mens rea requirement in conspiracy and
accomplice liability to exempt firms like Verizon from liability for its
material contributions to crimes such as fraud, illegal drug sales, and any
other crime that is facilitated by an internet connection. See e.g. People v.
Lauria, 251 Cal. App. 2d 471, 480 (1967). (“[A] supplier who furnishes
equipment which he knows will be used to commit a serious crime may be
deemed from that knowledge alone to have intended to produce the result.”);
United States v. Peoni, 100 F.2d 401, 403 (2d Cir. 1938). (“[A] seller,
knowing the buyer's criminal purpose, is a conspirator with him.”). In
information law outside of the First Amendment, the publisher / transmitter
line is reflected in the necessary element of volition for liability under the
copyright law, e.g., Religious Tech. Ctr. v. Netcom On-Line Commc’n
Services, Inc., 907 F.Supp. 1361, 1370 (N.D. Cal. 1995) (“Although copyright
is a strict liability statute, there should still be some element of volition or
causation which is lacking where a defendant's system is merely used to
create a copy by a third party.”);17 U.S.C. §512(a); 512(k)(1)(A)
(transmitters, defined as those who move information at user specification,
generally have no secondary copyright liability, with rare exceptions).
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operates by moving information, for a fee, according to the direction of its
users, and is neither identified with, or even knows what it is carrying, nor
is held legally responsible for what it carries. Traditional private
transmitters include the telegraph, private courier services (like Fedex or
UPS), local and long distance phone companies.

As a matter of First Amendment law, publishers are protected based on
the editorial discretion exercised in the selection of their repertoire. Turner,
512 U.S. at 636-637; Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258
(1974). It is true that most transmitters, like Fedex, or a local phone
company, do have the potential power to block a given transmission. But the
mere technical ability to block transmissions is of no significance by itself. It
is not the same thing as fully curating or selecting the content the audience
receives, and has never been the basis for First Amendment protection.

Turner makes clear what triggers the protections afforded a publisher.
A cable operator is protected because it “exercises editorial discretion over
which stations or programs to include in its repertoire.” Turner, 512 U.S. at
636 (quoting City of Los Angeles v. Preferred Communications, Inc., 476 U.
S. 488, 494 (1986)). As this makes clear, the knowing selection of a
“repertoire,” or a curated selection of content, is how a cable operator does
business, and this makes it a protected speaker.
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The newspaper is the quintessential example of a protected First
Amendment publisher / speaker, but not simply because a newspaper moves
information. The articles a newspaper runs are understood to be part of,
and the responsibility of, the newspaper – it makes sense to say something
like “look what the Washington Post said about X yesterday.” That is
because the very nature of a newspaper reflects a knowing selection and
arrangement of the entirety of the articles that make up the final product. It
is that process that the Supreme Court has protected, in cases like Miami
Herald, which recognized a right in newspapers not “to print that which it
would not otherwise print.” 418 U.S. at 256 (citing Associated Press v.
United States, 326 U.S. 1 (1945)) ; Pittsburgh Press Co. v. Pittsburgh
Commission on Human Relations, 413 U. S. 376, 391 (1973) (“reaffirm[ing]
unequivocally the protection afforded to editorial judgment and to the free
expression of views….”).

In contrast, the undisputed facts make clear that Verizon’s broadband
business shares almost none of the characteristics that have led the Court to
protect publishers as speakers. Unlike a newspaper or cable operator, in the
course of operations, the firm lacks actual knowledge of what it presents its
audience: it has only a vague sense of what information it is making
available to its customers. As a factual matter it would be infeasible for
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Verizon, or any other broadband provider to know what selection of content
it is offering, given the vast number of web sites and other Internet content
available, and given that they change every day.

No one, meanwhile, associates Verizon with the Internet content it
carries. If a blogger wrote something outrageous on the Internet, it would be
absurd to complaint by saying “Can you believe the blog Verizon ran
yesterday?” Rather, Verizon is in same position as the law schools in
Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 65
(2006) who, the Court held, were not speaking when merely hosting
recruitment interviews. As the Court explained, “[a]ccomodating the
military’s message does not affect the law schools’ speech, because the
schools are not speaking when they host interviews and recruiting
receptions.” Rumsfeld, 547 U.S. at 646 Like the law schools, Verizon is a
host for the speech of others, with only limited knowledge of what it carries.
As we’ve already suggested, the firm takes full legal advantage of that fact
to avoid potential legal responsibility under the criminal, defamation, and
copyright laws.

Finally, the content selection process is also completely different as
between Verizon and protected publishers. While a cable operator must
knowingly decide (and pay) when it wants to provide its customers with a
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given channel, and a newspaper editor must decide to run an article, Verizon
does not “decide” to carry a new web site. That all happens by itself, as the
Internet changes – Verizon, as a broadband provider, has nothing to do with
it, and does not have active knowledge of what it offers its customers at any
time.

The closest that Verizon comes to resembling a protected publisher
comes from the fact that it has the technical, albeit unexercised, power to
prioritize some Internet content or block it. Yet even if Verizon were to
exercise those powers it would still be a far from active selection of a
“repertoire” or a curated newspaper, or becoming understood as the
responsible publisher of the content it carries. Prioritization and blocking
might make Verizon more like Fedex, with its “Priority Overnight” services.
But Verizon would remain in a fundamentally different position than a
newspaper editor or book publisher that actively decides what content it
wishes to provide its customers.

This might be a very different case were Verizon to radically alter its
business model and begin only selling a highly curated internet service
consisting of a selection of the “best 100 web sites,” for which it would then
be held legally accountable. But that is not the claim Verizon presents to
this court.
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In short, a serious and full comparison reveals that Verizon is
fundamentally different than the firms that have been protected as
publishers under the First Amendment. As a transmitter or distributor of
information, Verizon’s operations must be analyzed not under Turner, but a
different First Amendment framework.

B. Verizon’s Transport Business is appropriately analyzed as a form
of conduct.


Verizon broadband operates primarily moving the contents of the
information, at user request, like any transport or distribution company. As
such, the proper First Amendment analysis is to examine Verizon’s business
operators as a form of conduct.

In that context, the Supreme Court has made it clear what is required
to gain First Amendment protection. “[W]e have extended First Amendment
protection only to conduct that is inherently expressive,” wrote the Court in
Forum for Academic & Institutional Rights, Inc., 547 U.S. at 66. There,
providing the facilities for speech, like here, was analyzed as a form of
conduct. The expressiveness of conduct is determined by the familiar Spence
test: the court asks whether “[a]n intent to convey a particularized message
was present and [whether] the likelihood was great that the message would
be understood by those who viewed it.” Spence, 418 U.S. at 410-11.
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Verizon’s proposed blocking and prioritization program would deliver
no discernable message, and is therefore not symbolic conduct as understood
by Spence. This might be a different case if, for example, Verizon blocked
websites according to some clear ideological position, and its customers
understood that fact. But Verizon is like most transportation and
communication firms, who make ordinary business decisions that have
nothing to do with any “particularized message.” For example, no carrier
will transmit the information of a customer who doesn’t pay bills. Some
transport companies agree to carry more, or deliver information faster, for
more money (consider Fedex’s “Saturday service”). In addition, many firms
must follow legal requirements as to forms of information that they may not
carry – such as those imposed by criminal law, national security laws or the
copyright laws. See e.g., 17 U.S.C. 512(j)(1)(B) (duties of transitory
carriers).

A company that follows the law, gives better service to those who pay
more, or refuses to serve those who will not pay, is simply making typical
business judgments. These are not the same thing as creating a
“particularized message.” To avoid the First Amendment applying to all
business conduct, they are not protected as speech.
* * *
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Erasing the publisher / transmitter line, by protecting Verizon as a
publisher, would be a dramatic step, and the court must seriously consider
the potential consequences. It would imply that firms like Fedex, local and
long distance telephone carriers and backbone Internet carriers are granted
First Amendment rights in their carriage so long as they are able to
demonstrate some selection among customers, or merely a technical ability
to exercise discretion in what they carry. It is true that a private mail
carrier like Fedex could refuse to deal with this or that company, or a
telephone service provider could only offer service to selected customers.
But if that mere possibility conferred First Amendment protections, it would
upend settled expectations. It would also, as discussed in Part II, infra, be
deeply inconsistent with the history of regulating carriers of information, in
place in some form since the mid-19th century.
II. HOLDING THE ORDER UNCONSTITUTIONAL WOULD BE
AT ODDS WITH CENTURIES OF TRADITIONAL OVERSIGHT
OF BOTH TRANSPORTATION AND COMMUNICATIONS
COMPANIES.


“To comprehend the scope of Congress' power … ‘a page of history is
worth a volume of logic.’” Eldred v. Ashcroft, 537 U.S. 186, 200 (2003)
(quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.))
For centuries, English and American common law, state legislatures, and the
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U.S. federal government have imposed legal duties on both transportation of
information and other products.2 Some of these regimes were full “common
carriage” systems, but others were, like the Order, in the nature of ad hoc
non-discrimination duties. As the Supreme Court said of its regulation of
telegraph transmitters, “they are not common carriers; their duties are
different, and are performed in different ways; and they are not subject to
the same liabilities.” Primrose v. Western Union Telegraph Co., 154 U.S. 1,
14 (1894). An important statutory difference was the absence of the rate
regulation imposed on common carriers by the Interstate Commerce Act,
Pub.L. 49-104, 24 Stat. 379 (1877). In the common law regulation of
transmitters, a principle difference was that telegraph companies had
greater latitude to contractually stipulate their liability in case of errors,
unlike common carriers, who were held strictly liable for things like like
damage to the contents of what it carried. Primose, 154 U.S. at 14-34. In

2
An exclusive public postal service in England was introduced in the
mid-17th century. See Joseph Clarence Hemmeon, The History of the
British Post Office 195 (1912) . Before that time, some information carriage
was conducted by some public carriers, and also a collection of private
carriers who were subject to various common-law duties. See id. at 189;
Douglas K. Adie, Monopoly Mail: The Case for Privatizing the United States
Postal Service 41-43 (1988). While obviously there were limited free speech
rights at the time, this makes clear that the tradition of government
oversight of information carriage is a tradition that predates the American
revolution.
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short, regulations imposing duties short of common carriage on information
transmitters have been part of the Republic's legal order since the mid-19th
century. To suggest that such laws were actually unconstitutional all along
would be staggering decision that the court should not take lightly.
A. Common Law, State and Federal regulation of telegraph firms
similar in nature to the Order were upheld against all
Constitutional challenges.


In relevant American history, the first regulation of private,
instantaneous information providers begins in 1848. The early laws
resemble contemporary broadband regulation and are therefore worth
particular attention. Importantly, the earlier regulations were not common
carriage regulation, but rather regulations designed to prevent
monopolization, create duties of non-discrimination and/or provide preferred
carriage to government itself or preferred parties. Despite similarities to the
regulation here contested, none were challenged under the First
Amendment, and the Federal laws were upheld against other Constitutional
challenges.

In speech terms, Verizon and other broadband carriers are not that
different from 19th century telegraph companies. Both carry information
over wires for a fee, and both have the potential to exercise judgment as to
what they carry. Moreover, it is clear that the telegraph companies actually
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did exercise enormous discretion with respect to the telegrams they carried,
and actively favored some parties over others. Tim Wu, The Master Switch
22-24 (2010). To take just the most obvious historic example, Western
Union, the then telegraph monopolist, discriminated against other wire
news services in favor of the Associated Press. See id. Nonetheless, the
regulation of the telegraph was never thought to be a question for First
Amendment scrutiny, and no case has ever been brought, despite centuries
of regulation.

The first regulation of private telegraph companies were state
chartering laws in the 1840s, followed by more general state regulations,
pioneered by New York in 1848. See Act of Apr. 12, 1848, ch. 265, 1848 N.Y.
Laws 392. That law created a simple procedure for chartering a telegraph
firm, and gave special transmission privileges to journalists. The first major
federal scheme regulating private information carriage was the 1866
National Telegraph Act, ch. 230, 14 Stat. 221. That Act did not make the
telegraph companies common carriers, but it did regulate their performance
pursuant to rules set by the Post-Master General, prioritized Government
transmissions, and fixed the prices Government would pay. As historian
Richard John writes, after the passage of the act, “telegraph corporations
operated in a quasi-regulatory political economy….” Richard R. John,
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Network Nation: Inventing American Telecommunications 116-117 (2010).

Perhaps most similar to the Order, however, were the duties imposed
by the courts. In the late 19th century, courts subjected telegraph firms to
non-discrimination duties that were not common carrier duties, but like the
regulations promulgated by the FCC, nonetheless imposed certain duties of
care. As the Supreme Court summarized the matter in Primrose v. Western
Union Telegraph Co., 154 U.S. at 14 (1894):
Telegraph companies resemble railroad companies and other common
carriers, in that they are instruments of commerce; and in that they
exercise a public employment, and are therefore bound to serve all
customers alike, without discrimination. They have, doubtless, a duty
to the public, to receive, to the extent of their capacity, all messages
clearly and intelligibly written, and to transmit them upon reasonable
terms. But they are not common carriers; their duties are different,
and are performed in different ways; and they are not subject to the
same liabilities.

The similarity between this regulation and the Order bears close inspection
by any court ruling on Constitutional issues in this area.
It is also important to understand how the 19th century statutory and
common law regulation of transmitters was different than common carriage
regulation. For one thing, as the Court held in Primrose, a transmitter had
greater latitude to contractually limit its damages in the case of error, unlike
carriers of goods who were strictly liable for damages caused in the process
of carriage. That tended to exempt a telegraph firm from damages in the
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USCA Case #11-1355 Document #1405253 Filed: 11/15/2012 Page 24 of 31
event of errors in transmission. Second, after 1887, common carriers were
government by the Interstate Commerce Act, Pub.L. 49-104, 24 Stat. 379
(1887), which imposed multiple duties beyond those specified by the common
law, including a blanket requirement, in Section 1, that "all charges for
services rendered ... be just and reasonable.” In contrast, the rates charged
by transmitters were unregulated during this period.

None of these many state laws, common law cases, nor the National
Telegraph Act were ever challenged under the First Amendment. Rather,
the U.S. Supreme Court explicitly and carefully upheld the Constitutional
power of Congress to regulate the telegraph. See Pensacola Tel. Co. v. W.
Union Tel. Co., 96 U.S. 1 (1877) As the Court later summarized in Western
Union Telegraph Co v. State of Texas, 105 U.S. 460 (1881), it held that
the telegraph was an instrument of commerce, and that telegraph
companies were subject to the regulating power of Congress in respect
to their foreign and inter-state business. A telegraph company occupies
the same relation to commerce as a carrier of messages, that a railroad
company does as a carrier of goods. Both companies are instruments of
commerce, and their business is commerce itself.

As this passage suggests, the basic regulation of transmission carriers –
even those that exercise discretion over what they carry – has long been
considered Constitutional. To hold otherwise would be a sharp break with
longstanding practice.
16


USCA Case #11-1355 Document #1405253 Filed: 11/15/2012 Page 25 of 31
B. Twentieth Century common carriage regulation of the telegraph,
telephone, and radio were also unchallenged under the First
Amendment.


Common-carrier or “public calling” style regulation of information
carriers was explicitly imposed by Congress in the Mann-Elkins Act of 1910,
ch. 309, 36 Stat. 539. That law subjected the telegraph, telephone and radio
transmissions to non-discrimination requirements. The Mann-Elkins Act,
like its predecessors, was presumed Constitutional and never challenged
under the First Amendment.

The regulatory scheme that still underlies today’s law, the 1934
Telecom Act, created antidiscrimination rules for carriers, including duties of
non-discrimination. Communications Act of 1934, ch. 652, § 202, 48 Stat.
1064, 1070. That Act was similarly never challenged as a violation of the
First Amendment, nor were its Amendments in 1996, despite multiple waves
of litigation. Justice O’Connor would state the long-standing presumption
that common carriage regulation was constitutional under the First
Amendment when, in 1994, she wrote “it stands to reason that if Congress
may demand that telephone companies operate as common carriers, it can
ask the same of cable companies….” Turner, 512 U.S. at 684.
* * *

To make a long story short, firms in the exact same position as Verizon
17


USCA Case #11-1355 Document #1405253 Filed: 11/15/2012 Page 26 of 31
have been subject to similar state and federal regulation for most of U.S.
history. As Justice Scalia suggests “when a practice not expressly
prohibited by the text of the Bill of Rights bears the endorsement of a long
tradition of open, widespread, and unchallenged use that dates back to the
beginning of the Republic, we have no proper basis for striking it down.”
Rutan v. Republican Party of Ill., 497 U.S. 62, 95 (1990) (Scalia, J.,
dissenting).

While one cannot be completely certain that all of these regulations
were not actually unconstitutional all along, long-standing, settled practices
must be taken into account in Constitutional adjudication. See Eldred v.
Reno, 239 F.3d 372, 377 (D.C. Cir. 2001) aff’d, Eldred v. Ashcroft, 537 U.S.
186 (2003) For the court to hold such schemes unconstitutional now, after
such a long period of presumptive constitutionality, would be an exercise in
judicial disruption of settled expectations.
CONCLUSION

WHEREFORE, amicus curiae asks that this court dismiss the notices
of appeal, deny the petitions for review, affirm the Order and grant all such
other relief as may be just and proper.


18


USCA Case #11-1355 Document #1405253 Filed: 11/15/2012 Page 27 of 31








Respectfully submitted,







/s/ Andrew Jay Schwartzman

Andrew Jay Schwartzman
2000 Pennsylvania Avenue, NW

Suite 4300
Washington, DC 20006
AndySchwartzman@GMail.com
(202) 232-4300
Counsel for Amicus Curiae

November 15, 2012
19


USCA Case #11-1355 Document #1405253 Filed: 11/15/2012 Page 28 of 31
CERTIFICATE OF COMPLIANCE
Pursuant to the requirements of Rule 32(a)(7), Federal Rules of
Appellate Procedure, I certify that the accompanying Initial Brief for
Amicus Curiae in this case contains 3827 words.

/s/ Andrew Jay Schwartzman
Andrew Jay Schwartzman
2000 Pennsylvania Avenue, NW
Suite 4300
Washington, DC 20006
AndySchwartzman@GMail.com
(202) 232-4300
November 15, 2012

USCA Case #11-1355 Document #1405253 Filed: 11/15/2012 Page 29 of 31

CERTIFICATE OF SERVICE

I, Andrew Jay Schwartzman, certify that on November 15, 2012, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for the D.C. Circuit
by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be
served by the CM/ECF system. Others, marked with an asterisk, will receive service by mail
unless another attorney for the same party is receiving service through CM/ECF.
Carl W. Northrop
John T. Scott, III
Michael Lazarus
Verizon Wireless
*Andrew Morentz
1300 I Street, NW
Telecommunications Law
Suite 400 West
Professionals PLLC
Washington, DC 20005
875 15th Street, NW, Suite 750
Counsel for Verizon
Washington, DC 20005
Counsel for MetroPCS
Walter E. Dellinger
Communications, Inc., et al.
Brianne Gorod
Anton Metlitsky
Mark A. Stachiw
O’Melveny & Myers LLP
General Counsel, Secretary & Vice Chairman
1625 Eye Street, NW
MetroPCS Communications, Inc.
Washington, DC 20006
2250 Lakeside Blvd.
Counsel for Verizon
Richardson, TX 75082
Counsel for MetroPCS
Samir C. Jain
Communications, Inc., et al.
Wilmer Cutler Pickering, et al.
1875 Pennsylvania Avenue, NW
Helgi C. Walker
Washington, DC 20006
William S. Consovoy
Counsel for Verizon
Eve Klindera Reed
Brett A. Shumate
*Sean Lev
Wiley Rein LLP
Peter Karanjia
1776 K Street, NW
Jacob M. Lewis
Washington, DC 20006
Richard K. Welch
Counsel for Verizon
Joel Marcus
FCC Office of General Counsel
Michael E. Glover
445 12th Street, SW
Edward Shakin
Washington, DC 20554
William H. Johnson
Counsel for FCC
Verizon
1320 North Courthouse Road, 9th Floor
Arlington, VA 22201
Counsel for Verizon

USCA Case #11-1355 Document #1405253 Filed: 11/15/2012 Page 30 of 31
James Bradford Ramsay
Jeffrey J. Binder
General Counsel
Law Office of Jeffrey Binder
NASUCA
2510 Virginia Avenue, NW,
1101 Vermont Avenue, Suite 200
Suite 1107
Washington, DC 20005
Washington, DC 20037
Counsel for NASUCA
Counsel for Vonage Holdings Corp.
Genevieve Morelli
E. Duncan Getchell, Jr.
ITTA
*Wesley Glenn Russell, Jr.
1101 Vermont Avenue, NW
Office of the Attorney General
Suite 501
900 East Main Street
Washington, DC 20005
Richmond, VA 23219
Counsel for ITTA
Counsel for the Commonwealth of Virginia
Henry Goldberg
Brendan Daniel Kasper
Goldberg, Godles, Wiener & Wright
*Kurt Matthew Rogers
1229 Nineteenth Street, NW
Vonage Holdings Corp.
Washington, DC 20036
23 Main Street
Counsel for Open Internet Coalition
Holmdel, NJ 07733
Counsel for Vonage Holdings Corp.
Harold J. Feld
Public Knowledge
John P. Elwood
1818 N Street, NW, Suite 410
Eric A. White
Washington, DC 20036
Vinson & Elkins LLP
Counsel for Public Knowledge
2200 Pennsylvania Avenue, NW,
Suite 500 West
Nickolai G. Levin
Washington, DC 20037
Nancy C. Garrison
Counsel for the Cato Institute, Competitive
Catherine G. O’Sullivan
Enterprise Institute, Free State Foundation,
Robert J. Wiggers
and TechFreedom
U.S. Department of Justice
Antitrust Division
David Bergmann
Appellate Section
Assistant Consumers’ Counsel
Room 3224
Office of the Ohio Consumers’ Counsel
950 Pennsylvania Avenue, NW
10 West Broad Street, Suite 800
Washington, DC 20530-0001
Columbus, OH 43215
Counsel for the United States
Counsel for NASUCA
R. Craig Lawrence
Stephen B. Kinnaird
U.S. Attorney’s Office
Paul, Hastings, Janofsky & Walker LLP
555 4th Street, NW
875 15th Street, NW
Washington, DC 20530
Washington, DC 20005
Counsel for the United States
Counsel for MetroPCS
-2-

USCA Case #11-1355 Document #1405253 Filed: 11/15/2012 Page 31 of 31
Quentin Riegel
National Association of Manufacturers
733 10th Street, NW
Suite 700
Washington, DC 20001
Russell P. Hanser
Bryan N. Tramont
Wilkinson Barker Knauer, LLP
2300 N Street, NW
Suite 700
Washington, DC 20037
Counsel for the National Association of
Manufacturers

/s/ Andrew Jay Schwartzman
-3-

Document Outline

  • OICoverFri
  • STATEMENT REGARDING CONSENT TO FILE
  • OIRelatedCases
  • OITOFC
  • Table of AuthoritiesFri
  • OIGlossary
  • Amicus_Wu6
  • OICOSWeds

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