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Released: November 15, 2012
USCA Case #11-1355 Document #1405177 Filed: 11/15/2012 Page 1 of 47
ORAL ARGUMENT NOT YET SCHEDULED

No. 11-1355

Consolidated with Nos. 11-1356, 11-1403, and 11-1404


IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



VERIZON,


Appellant,
v.

FEDERAL COMMUNICATIONS COMMISSION,


Appellee.
On Appeal from an Order of the
Federal Communications Commission


BRIEF AMICI CURIAE

OF THE CENTER FOR DEMOCRACY &

TECHNOLOGY AND LEGAL SCHOLARS IN SUPPORT OF APPELLEE



Kevin S. Bankston
(Principal Attorney of Record)
Emma J. Llansó
CENTER FOR DEMOCRACY &
TECHNOLOGY
1634 I Street, NW, Suite 1100
Washington, DC 20006
Tel: (202) 637-9800
Fax: (202) 637-0968
kbankston@cdt.org
ellanso@cdt.org

Counsel for Amici Curiae
November 15, 2012


USCA Case #11-1355 Document #1405177 Filed: 11/15/2012 Page 2 of 47

STATEMENT REGARDING CONSENT TO FILE AND SEPARATE

BRIEFING


All parties and intervenors have consented to the filing of this brief. Amici
Curiae filed their notice of intent to participate on October 31, 2012.1
Pursuant to D.C. Circuit Rule 29(d), amici curiae the Center for Democracy
& Technology (CDT) and Legal Scholars Marvin Ammori, Jack M. Balkin,
Michael J. Burstein, Anjali S. Dalal, Rob Frieden, Ellen P. Goodman, David R.
Johnson, Dawn C. Nunziato, David G. Post, Pamela Samuelson, Rebecca Tushnet,
Barbara van Schewick, and Jonathan Weinberg certify that they are submitting a
separate brief from other amici curiae in this case due to the specialized nature of
each amici’s distinct interests and expertise. This is a brief of First Amendment
and Internet law professors focused solely and directly on rebutting
Appellants/Petitioners’ First Amendment arguments in the context of the most
current and relevant precedents, including significant discussion of the
implications of the landmark case of Reno v. ACLU, 521 U.S. 844 (1997), and with

1 Pursuant to Fed. R. App. P. 29(c), amici state 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
amici curiae or their counsel made a monetary contribution to its preparation or
submission. Fellows of the Information Society Project at Yale Law School
Nicholas Bramble, Anjali Dalal, Erica Newland, Joshua Weinger, and Albert
Wong helped to prepare this brief pro bono under the supervision of amicus CDT’s
Kevin S. Bankston, counsel of record, and amicus Professor Jack M. Balkin of
Yale Law School.

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USCA Case #11-1355 Document #1405177 Filed: 11/15/2012 Page 3 of 47
extended application of the intermediate scrutiny laid out in Turner Broadcasting
System, Inc. v. FCC (Turner I), 512 U.S. 622 (1994), and Turner Broadcasting
System, Inc. v. FCC (Turner II), 520 U.S. 180 (1997). CDT et al. anticipate an
amicus brief of leading Internet engineers and technologists that will focus not on
statutory and constitutional analysis but on explaining the technology of the
Internet, the benefits of openness, and the threat to the Internet’s openness that the
FCC order under review seeks to address. We also anticipate an amicus brief on
behalf of former FCC Commissioners including Reed Hundt and other
telecommunications policymakers that will in part address the First Amendment
issue, but will not address the two specific aspects of the issue mentioned above,
and will also address Fifth Amendment issues not discussed in this brief; that brief
will focus on the implications of this case for vital policy activities of
administrative agencies in the future. We anticipate an additional amicus brief of
Professor Tim Wu, but that brief will focus on the history of telecommunications
law’s interaction with First Amendment law, and is not expected to be duplicative
of the content herein. Finally, we anticipate a brief on behalf of various venture
capital investors that will focus on the Open Internet Rules’ implications for
broadband investment and will not address the First Amendment. Given these
divergent purposes, CDT et al. certify that filing a joint brief would not be
practicable.

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USCA Case #11-1355 Document #1405177 Filed: 11/15/2012 Page 4 of 47

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES


Pursuant to D.C. Circuit Rule 28(a)(1), amici curiae certify that that:
(A) Parties and Amici
In addition to the parties, intervenors, and amici listed Brief for Respondent
Federal Communications Commission, the following amici may have an interest in
the outcome of this case:
(on this brief) Center for Democracy & Technology, Marvin Ammori, Jack
M. Balkin, Michael J. Burstein, Anjali S. Dalal, Rob Frieden, Ellen P. Goodman,
David R. Johnson, Dawn C. Nunziato, David G. Post, Pamela Samuelson, Rebecca
Tushnet, Barbara van Schewick, and Jonathan Weinberg;

Internet technologists Scott Bradner, Lyman Chapin, Dr. David Cheriton,
Dr. Douglas Comer, Phil Karn, Dr. Leonard Kleinrock, Dr. John Klensin, Dr.
James Kurose, Dr. Nick McKeown, Dr. Craig Partridge, Dr. Vern Paxson, Dr.
David Reed, Dr. Scott Shenker, Dr. Don Towsley, Dr. Paul Vixie, Steve Wozniak;

Professor Tim Wu;

Former FCC Commissioners and telecommunications policymakers Reed
Hundt, Tyrone Brown, Michael Copps, Nicholas Johnson, Susan Crawford, and the
National Association of Telecommunications Officers and Advisors.

It is also amici’s understanding that an additional amicus brief will be filed
on behalf of various venture capital investors.

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USCA Case #11-1355 Document #1405177 Filed: 11/15/2012 Page 5 of 47
(B) Rulings under Review
References to the rulings at issue appear in the Joint Brief for Petitioners
Verizon and MetroPCS.
(C) Related Cases.
All related cases of which amici are aware are listed in the Brief for
Respondent Federal Communications Commission.
November 15, 2012


/s/ Kevin Bankston

Kevin S. Bankston
CENTER FOR DEMOCRACY & TECHNOLOGY
1634 I Street, NW, Suite 1100
Washington, DC 20006
Tel: (202) 637-9800
Fax: (202) 637-0968
kbankston@cdt.org

Counsel for Amici Curiae

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and D.C.
Circuit Rule 26.1, amici curiae the Center for Democracy & Technology, et al.,
hereby submit the following corporate disclosure statements:
The Center for Democracy & Technology (“CDT”) is a non-profit, non-
stock corporation organized under the laws of the District of Columbia. CDT has
no parent corporation, and no company owns 10 percent or more of its stock.
All other amici are individuals.

November 15, 2012


/s/ Kevin Bankston

Kevin S. Bankston
CENTER FOR DEMOCRACY & TECHNOLOGY
1634 I Street, NW, Suite 1100
Washington, DC 20006
Tel: (202) 637-9800
Fax: (202) 637-0968
kbankston@cdt.org

Counsel for Amici Curiae

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TABLE OF CONTENTS


STATEMENT REGARDING CONSENT TO FILE AND SEPARATE
BRIEFING................................................................................................................. i

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES ............ iii

CORPORATE DISCLOSURE STATEMENT ........................................................ v

TABLE OF CONTENTS ........................................................................................ vi

TABLE OF AUTHORITIES.................................................................................. vii

GLOSSARY OF ABBREVIATIONS...................................................................... x

STATUTES AND REGULATIONS....................................................................... xi

INTEREST OF AMICI CURIAE............................................................................. 1

SUMMARY OF ARGUMENT................................................................................ 4

ARGUMENT............................................................................................................ 7

I.  
Introduction: Verizon’s First Amendment Arguments Threaten the
Internet as an Open Platform for Free Speech. .................................... 7

II.  
The Open Internet Rules Do Not Restrict or Compel Verizon’s
Own Speech, But Only Regulate Its Conduct as a Conduit for
Others’ Speech. .................................................................................. 11

III.   Though Such Scrutiny is Unwarranted, the Open Internet Rules
Satisfy Intermediate Scrutiny............................................................. 19

A.  
The Open Internet Rules Further An Important Government
Interest...................................................................................... 24

B.  
The Open Internet Rules Restrict No More Speech Than
Necessary. ................................................................................ 27  

CONCLUSION....................................................................................................... 30


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TABLE OF AUTHORITIES


Cases



ACLU v. Reno
,
929 F. Supp. 824 (E.D. Pa. 1996)......................................................... 7, 8, 11

Am. Family Ass’n, Inc. v. FCC,
365 F.3d 1156 (D.C. Cir. 2004).................................................................... 19

Associated Press v. United States,
326 U.S. 1 (1945) ......................................................................................... 25

Comcast Cablevision of Broward Cnty. v. Broward Cnty.,
124 F. Supp. 2d 685 (S.D. Fla. 2000)........................................................... 23

Denver Area Educ. Telecomms. Consortium v. FCC,
518 U.S. 727 (1996) ............................................................................... 15, 17

FCC v. League of Women Voters of Cal.,
468 U.S. 364 (1984) ..................................................................................... 17

*Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston,
515 U.S. 557 (1995) ............................................................................... 14, 15

Miami Herald Publ’g Co. v. Tornillo,
418 U.S. 241 (1974) ..................................................................................... 16

Minneapolis Star & Tribune Co. v. Minn. Comm’r of Rev.,
460 U.S. 575 (1983) ..................................................................................... 21

Nat’l Broad. Co. v. United States,
319 U.S. 190 (1943) ..................................................................................... 19

*PruneYard Shopping Ctr. v. Robins,
447 U.S. 74 (1980) ............................................................................. 5, 13, 14

Recording Indus. Ass’n of Am. v. Verizon Internet Serv.,
351 F.3d. 1229 (D.C. Cir. 2003)................................................................... 12


* Authorities upon which we chiefly rely are marked with asterisks.

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USCA Case #11-1355 Document #1405177 Filed: 11/15/2012 Page 9 of 47
Red Lion Broad. Co. v. FCC,
395 U.S. 367 (1969) ............................................................................... 19, 25

*Reno v. ACLU,
521 U.S. 844 (1997) ........................................................................... 4, 7, 8, 9

*Rumsfeld v. Forum for Academic and Institutional Rights, Inc.,
547 U.S. 47 (2006) ....................................................................... 5, 13, 14, 15

*Spence v. Washington,
418 U.S. 405 (1974) ........................................................................... 5, 11, 12

Time Warner Entm’t Co. v. FCC,
93 F.3d 957 (D.C. Cir. 1996)........................................................................ 19

Time Warner Entm’t Co., L.P. v. United States,
211 F.3d 1313 (D.C. Cir. 2000).................................................................... 20

*Turner Broad. Sys., Inc. v. FCC, (Turner I)
512 U.S. 622 (1994) .... 5, 6, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29

*Turner Broad. Sys., Inc. v. FCC, (Turner II)
520 U.S. 180 (1997) ...................................... 6, 19, 20, 21, 22, 25, 26, 27, 29

United States v. O’Brien,
391 U.S. 367 (1968) ..................................................................................... 23

Ward v. Rock Against Racism,
491 U.S. 781 (1989) ..................................................................................... 23

Constitutional Provisions


*U.S. Const. amend I..................................... 4, 5, 6, 7, 8, 11, 12, 13, 15, 16, 17, 18,
19, 21, 22, 24, 25, 27, 28, 29

Other Authorities


Barbara van Schewick, Network Neutrality and Quality of Service: What a
Non-Discrimination Rule Should Look Like, Center for Internet &
Society (June 11, 2012) ............................................................................ 8, 10


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Barbara van Schewick, Start-Up Video Company Asks FCC to Improve Open
Internet Proposal, Internet Architecture and Innovation (Dec. 2, 2010) ..... 26

David Wolitz, Open Access and the First Amendment: A Critique of Comcast
Cablevision of Broward County, Inc. v. Broward County, 4 Yale Symp.
L. & Tech. (2001)......................................................................................... 23

Eli M. Noam, Media Ownership and Concentration in America (2009) ................. 9

FCC, Internet Access Services: Status as of June 30, 2011 (2012)........................ 10

Jerry Berman & Daniel J. Weitzner, Abundance and User Control: Renewing
the Democratic Heart of the First Amendment in the Age of Interactive
Media
, 104 Yale L.J. 1619 (1995)................................................................ 17

*John Blevins, The New Scarcity: A First Amendment Framework for
Regulating Access to Digital Platforms, 79 Tenn. L. Rev. 353 (2012).. 28, 29

Marvin Ammori, First Amendment Architecture, 2012 Wisc. L. Rev. 1 ............... 25

Nicholas Bramble, Ill Telecommunications: How Internet Infrastructure
Providers Lose First Amendment Protection, 17 Mich. Telecomm.
Tech. L. Rev. 67 (2010)................................................................................ 13

*Preserving the Open Internet, 25 FCC Rcd. 17 (Dec. 23, 2010), 76 Fed. Reg.
59,192 (Sept. 23, 2011) ........................... 4, 5, 6, 7, 14, 15, 17, 18, 19, 20, 21,
22, 23, 24, 26, 27, 28, 29

Rebecca Tushnet, Power Without Responsibility: Intermediaries and the First
Amendment, 76 Geo. Wash. L. Rev. 986 (2008).......................................... 18

Rob Frieden, Invoking and Avoiding the First Amendment: How Internet
Service Providers Leverage Their Status as Both Content Creators and
Neutral Conduits
, 12 U. Pa. J. Const. L. 1279 (2010).................................. 12

Stuart Minor Benjamin, Transmitting, Editing, and Communicating:
Determining What “The Freedom of Speech” Encompasses, 60 Duke
L.J. 1673 (2011) ........................................................................................... 18

Verizon Online Terms of Service (Dec. 31, 2011) .................................................. 11

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USCA Case #11-1355 Document #1405177 Filed: 11/15/2012 Page 11 of 47

GLOSSARY OF ABBREVIATIONS

ACLU
American Civil Liberties Union
CDT
Amicus Center for Democracy & Technology
DSL
Digital Subscriber Line (a broadband data transmission technology)
FCC
Federal Communications Commission
ISP
Internet Service Provider


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STATUTES AND REGULATIONS

All applicable statutes and regulations are contained in the Brief for
Respondent Federal Communications Commission.

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INTEREST OF AMICI CURIAE


The Center for Democracy & Technology (CDT) is a non-profit public
interest organization focused on free speech and other civil liberties issues
affecting the Internet, other communications networks, and associated
technologies. CDT represents the public’s interest in an open Internet and
promotes the constitutional and democratic values of free expression, privacy, and
individual liberty.
CDT here represents itself and the following individual legal scholars with
expertise in the First Amendment, the Internet, and telecommunications law, who
have a shared interest in preserving a neutral and open Internet:
Marvin Ammori is a Bernard L. Schwartz Fellow at the New America
Foundation and an Affiliate Scholar at Stanford Law School’s Center for Internet
& Society.
Jack M. Balkin is Knight Professor of Constitutional Law and the First
Amendment and the founder and director of the Information Society Project at
Yale Law School. He specializes in First Amendment, telecommunications, and
Internet law.
Michael J. Burstein is Assistant Professor of Law at the Benjamin N.
Cardozo School of Law, Yeshiva University, where he specializes in intellectual
property law and innovation policy. See, e.g., Towards a New Standard for First

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Amendment Review of Structural Media Regulation, 79 N.Y.U. L. Rev. 1030
(2004).
Anjali S. Dalal is the Google Policy Fellow at the Information Society
Project at Yale Law School, specializing in the First Amendment and Internet law.
See, e.g., Protecting Hyperlinks and Preserving First Amendment Values on the
Internet, 13 U. Pa. J. Const. L. 1071 (2011).
Rob Frieden holds the Pioneers Chair and serves as Professor of
Telecommunications and Law at Penn State University where he specializes in
how converging markets and technologies affect law and policy.
Ellen P. Goodman is Professor of Law at Rutgers University – Camden,
specializing in communications policy. She was also recently a Distinguished
Visiting Scholar at the FCC.
David R. Johnson has served as Visiting Professor of Law at New York Law
School and specializes in Internet law. He co-authored Law and Borders: The Rise
of Law in Cyberspace, 48 Stanford L. Rev. 1367 (1996).
Dawn C. Nunziato is Professor of Law at the George Washington University
Law School and an internationally recognized expert on free speech and the
Internet. She recently published her book Virtual Freedom: Net Neutrality and
Free Speech in the Internet Age (2009).

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David G. Post is Professor of Law at the Beasley School of Law, Temple
University, specializing in Internet law, intellectual property law, and the First
Amendment. See, e.g., In Search of Jefferson’s Moose: Notes on the State of
Cyberspace (2009).
Pamela Samuelson is the Richard M. Sherman Distinguished Professor of
Law & Information at the University of California, Berkeley, where she teaches
and writes about intellectual property and cyberlaw issues. She is a coauthor of
Software & Internet Law (4th ed. 2010).
Rebecca Tushnet is a Professor of Law at the Georgetown University Law
Center, specializing in intellectual property and the First Amendment.
Barbara van Schewick is an Associate Professor of Law and Director of the
Center for Internet and Society at Stanford Law School. She is the author of the
book Internet Architecture and Innovation (2010) on the science, economics, and
policy of network neutrality. Her research focuses on Internet architecture,
innovation, and regulation.
Jonathan Weinberg is a Professor of Law at Wayne State University, with
specialization including First Amendment, telecommunications, and Internet law,
and was formerly Scholar in Residence at the FCC.

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SUMMARY OF ARGUMENT

When it comes to the First Amendment, the Appellants’ argument is exactly
backwards. The order under review, Preserving the Open Internet, 25 FCC Rcd.
17,905 (Dec. 23, 2010), 76 Fed. Reg. 59,192 (Sept. 23, 2011) (hereafter “Order”,
“Open Internet Rules”, or “Rules”), does not violate the First Amendment rights of
Verizon or MetroPCS (hereafter “Verizon”) as they claim, but instead protects the
First Amendment interests of Internet users. As described in the introductory Part
I, Verizon’s claim that it has a First Amendment right to edit its customers’ access
to the Internet, in combination with new ability and incentives to do so, threatens
to undermine the fundamental features of the Internet that have made it “the most
participatory form of mass speech yet developed.” Reno v. ACLU, 521 U.S. 844,
863 (1997) (internal quotation marks omitted).
Verizon’s First Amendment arguments are incorrect as a matter of law. As
explained in Part II, the Rules do not restrict or compel Verizon’s own speech, but
only regulate its conduct as a conduit for others’ speech. Certainly, Verizon often
does speak via the Internet, using websites, blogs, email, social media, and the like.
But its separate conduct in transmitting the speech of others should not be confused
with Verizon’s own speech. Rather, as Verizon itself has repeatedly claimed in
other contexts, it acts as a passive conduit for its users’ speech.

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That conduct is not sufficiently expressive to merit First Amendment
scrutiny under the test first established in Spence v. Washington, 418 U.S. 405,
410–411 (1974). As in the case of the shopping center in PruneYard Shopping
Center v. Robins, 447 U.S. 74 (1980) or the law school in Rumsfeld v. Forum for
Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), no one could mistake
the mere fact that Verizon allows speech to occur over its property as an
expression of Verizon’s endorsement of that speech. The competing analogies
offered by Verizon are wholly inapt: broadband internet access service providers
do not and need not exercise editorial discretion as newspapers or cable companies
do. Verizon and other broadband providers are more akin to telephone companies.
Like the anti-discrimination obligations that apply to those companies, the Rules
do not restrict or compel anyone’s speech but instead protect everyone’s speech by
requiring that it be transmitted without interference. To hold otherwise would call
into question all of common carriage law, and threaten to give any actor with the
physical or technical ability to block speech—be it a telephone company or
FedEx—a First Amendment right to do so.
However, in case this Court disagrees and concludes that First Amendment
scrutiny is warranted, the concluding Part III demonstrates how the Open Internet
Rules easily satisfy the intermediate scrutiny applied to the cable must-carry rules
in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (Turner I) and

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Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997) (Turner II)
(collectively, Turner). Even more than the rules at issue there, the Open Internet
Rules are unquestionably content neutral, because unlike must-carry rules, the
Rules don’t force broadband providers to forego the carriage of any speech in order
to carry particular speech. But like the cable companies in Turner, Verizon
possesses unique “bottleneck” or “gatekeeper” control over the content that leaves
or enters the home, further making intermediate (rather than strict) scrutiny
appropriate. The Open Internet Rules promote an important government interest—
“assuring that the public has access to a multiplicity of information sources,”
promoting “the widest possible dissemination of information from diverse and
antagonistic sources,” Turner I, 512 U.S. at 663 (internal quotation mark
omitted)—while restricting no more speech than necessary. Indeed, they impact
broadband providers’ speech even less than the rules in Turner impacted cable
companies’.
In its capacity as a broadband provider, Verizon is not a speaker but a
conduit for others’ speech, and Turner scrutiny of the Open Internet Rules is not
necessary or appropriate. Even so, the Rules easily satisfy such scrutiny. Amici
urge this Court to reject Verizon’s claim that the Rules violate the First
Amendment.

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ARGUMENT

I.

Introduction: Verizon’s First Amendment Arguments Threaten the
Internet as an Open Platform for Free Speech.

The Internet is a uniquely open communications platform with
unprecedented power to promote First Amendment rights, as the Supreme Court
first recognized in the landmark case of Reno v. ACLU. Yet the Internet’s unique
capacity to empower individual speakers could be irrevocably damaged if this
Court accepts Verizon’s argument that the Open Internet Rules violate Verizon’s
own purported First Amendment interest in exercising unfettered “editorial
discretion” over the Internet content that its customers choose to send or receive.
When the Reno Court concluded that the Internet deserved “the highest
protection” under the First Amendment as “the most participatory form of mass
speech yet developed,” id. at 863 (quoting ACLU v. Reno, 929 F. Supp. 824, 883
(E.D. Pa. 1996)), it was the speech of Internet users—the individuals, businesses,
and content providers connected at the network’s endpoints—that the Court
intended to protect. The Court stressed that Internet content is “available to
anyone, anywhere in the world, with access to the Internet,” id. at 851, and that
“the Internet provides significant access to all who wish to speak in the medium,
and even creates a relative parity among speakers,” id. at 863 n.30 (quoting ACLU,
929 F. Supp. at 877). The Court described the Internet as “open to all comers,” id.
at 880, and its content “as diverse as human thought,” id. at 852 (quoting ACLU,

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929 F. Supp. at 842), and situated the Internet firmly within the historical goals of
the First Amendment: “[A]ny person with a phone line can become a town crier
with a voice that resonates farther than it could from any soapbox.” Id. at 870.
Of course, Verizon and other broadband Internet access service providers are
among the speakers the Internet empowers. They, like countless others, create and
publish content via their websites, social media accounts, and other online speech
platforms. But for the millions of customers who rely on them for Internet access,
these providers are also the sole pathway through which all other Internet content
is sent and delivered. In this latter capacity, a broadband provider is no more the
publisher or speaker of third-party content than is the postal service delivering
letters or the maker of the soapbox on which a speaker stands. To conclude
otherwise would threaten the revolutionary characteristics of the Internet that were
recognized by the Reno Court, speech-fostering features based on the basic design
of the Internet as a network with low barriers to participation that does not
distinguish between the diverse applications, content, and services running over it.
See id. at 863 n.30 (quoting ACLU, 929 F. Supp. at 877); see also Barbara van
Schewick, Network Neutrality and Quality of Service: What a Non-Discrimination
Rule Should Look Like, Center for Internet & Society, 1 (June 11, 2012),
http://cyberlaw.stanford.edu/downloads/20120611-NetworkNeutrality.pdf
(describing the Internet’s application-neutral, “end-to-end” architecture); Brief of

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Amici Curiae Internet Engineers and Technologists in Support of Respondents
(hereafter “Engineers’ Br.”) 12–16 (same).
The Internet’s openness was further enabled by the fact that at the time Reno
was decided, non-discriminatory transmission of Internet content was a given. The
reason was simple: people used to “dial up” to their Internet service providers
(ISPs) over telephone lines provided by common carrier phone companies (hence
the Supreme Court’s conclusion that “any person with a phone line can become a
town crier,” Reno, 521 U.S. at 870 (emphasis added)). There were a wide variety
of dial-up ISPs, including many “major national ‘online services’ . . . [that offered]
access to their own extensive proprietary networks as well as a link to the much
larger resources of the Internet.” Id. at 850. In fact, at the height of the market for
dial-up Internet access in the late 1990s, there were more than 9,000 dial-up ISPs
in the US, with residents of most major metropolitan areas having hundreds of
accessible local options. Eli M. Noam, Media Ownership and Concentration in
America 275–78 (2009). Therefore, in the Reno era, the phone company providing
“first and last mile” transmission service between a household and its dial-up ISP
was a common carrier that could not discriminate, while if a dial-up ISP engaged
in discriminatory practices, Internet users could easily switch to competing
providers.

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Now, as dial-up service has been replaced by digital subscriber line (DSL)
modem Internet service offered directly by telephone companies and cable modem
Internet service offered by cable companies, most consumers face very few options
for broadband Internet access. As of June 30, 2011, 66% of US households had
two or fewer options for high-speed Internet service (i.e., throughput greater than 3
megabits/sec downstream and 768 kilobits/sec upstream), and 96% of households
had two or fewer options for higher-speed service (throughput of at least 6 Mb/sec
downstream and 1.5 Mb/sec upstream). FCC, Internet Access Services: Status as
of June 30, 2011, at 8 (2012),
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-314630A1.pdf. Abundant
consumer choice therefore no longer serves as an effective check against
discriminatory behavior by a user’s chosen Internet provider. Meanwhile, a variety
of economic and technical factors have given broadband providers new ability and
incentive to engage in just such behavior. Brief for Appellee/Respondents Federal
Communications Commission and the United States of America (hereafter “FCC
Br.”) 13–14; see also van Schewick, supra, at 42 (describing providers’ new ability
and incentive to block or discriminate against particular applications and content).
Considering those incentives and the often duopolistic nature of the market for
broadband Internet service, the possibility (and actuality, FCC Br. 9–10, 15) of
discrimination by broadband providers presents a clear and present danger to the

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key features that make the Internet “far more speech-enhancing than print, the
village green, or the mails.” ACLU, 929 F. Supp at 882.

II.

The Open Internet Rules Do Not Restrict or Compel Verizon’s Own
Speech, But Only Regulate Its Conduct as a Conduit for Others’
Speech.

Verizon is in the business of providing a conduit for end users, be they
individuals or businesses, to speak to each other. But Verizon’s conduct in
transmitting the speech of others should not be confused with Verizon’s own
speech.
When deciding whether particular conduct is expressive enough to warrant
First Amendment scrutiny, the Supreme Court has considered 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 410–411. Verizon’s conduct as a conduit for others’ speech fails this test.
Verizon fails the first prong of the Spence test because there is no intent to
convey any message through the transmission of others’ content. Rather, Verizon
explicitly disclaims any endorsement of the content users receive or send through
its service. See Verizon Online Terms of Service 11(5), (Dec. 31, 2011),
http://my.verizon.com/central/vzc.portal?_nfpb=true&;_
pageLabel=vzc_help_policies&id=TOS (“Verizon assumes no responsibility
for . . . any Content . . . and . . . Verizon does not endorse any advice or opinion

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contained therein.”). Similarly, Verizon has argued in past litigation it does not
endorse or take responsibility for the content it transmits between Internet users:
[T]he Internet service provider performs a pure transmission or
“conduit” function. . . . This function is analogous to the role played
by common carriers in transmitting information selected and
controlled by others. Traditionally, this passive role of conduit for the
expression of others has not created any duties or liabilities under the
copyright laws.
Brief for Appellant at 23, Recording Indus. Ass’n of Am. v. Verizon Internet Serv.,
351 F.3d. 1229 (D.C. Cir. 2003) (Nos. 03-7015 & 03-7053). With regard to its
conduct as a broadband provider, however, Verizon cannot have it both ways; it
cannot be a speaker when it suits its purposes and a conduit when it does not. See
generally Rob Frieden, Invoking and Avoiding the First Amendment: How Internet
Service Providers Leverage Their Status as Both Content Creators and Neutral
Conduits, 12 U. Pa. J. Const. L. 1279 (2010) (cataloguing the alternating First
Amendment positions of broadband providers). Either Verizon is expressing itself
by its choice to transmit certain content, or it is a passive conduit for the expression
of others. Based on Verizon’s own representations, it is merely a conduit.
Verizon’s conduct as a conduit also fails the second prong of the Spence test:
there is little likelihood that anyone would think that Verizon endorses all of the
content accessible online, or disapproves of that which cannot be accessed. A
broadband provider transmits a variety of messages that often contradict each
other, and no reasonable user could impute all of these various conflicting views to

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the provider. This is why the Supreme Court concluded that a state could
constitutionally require a privately owned shopping center to allow high school
students to distribute pamphlets and seek petition signatures inside the mall: when
a private property owner opens that property to others’ use, the owner’s First
Amendment rights aren’t violated by other speakers’ use of the property precisely
because the views expressed by speakers who are granted a right of access “will
not likely be identified with those of the owner.” PruneYard, 447 U.S. at 87.
Just as no Internet user would assume that Verizon endorses all available
Internet content, an Internet user who “encounters a slow or inaccessible website or
application has no way of knowing whether that content is being slowed down or
blocked by her Internet access provider” and therefore no reason to perceive any
message of disapproval of that content from the provider. Nicholas Bramble, Ill
Telecommunications: How Internet Infrastructure Providers Lose First
Amendment Protection, 17 Mich. Telecomm. Tech. L. Rev. 67, 89 (2010). Such a
slowdown or interruption might be caused by another entity’s network congestion
or decision to block the website, or the website provider’s own failure to maintain
the site or its decision not to transmit content at that time and location. See id.
Without some additional speech from the provider to express an opinion about the
content and applications it does or does not transmit, the mere inability of a user to
access some content or applications communicates nothing at all. See Rumsfeld,

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547 U.S. at 66 (“The fact that . . . explanatory speech is necessary is strong
evidence that the conduct at issue here is not so inherently expressive that it
warrants protection.”).
Because the conduct being regulated is not properly understood as
broadband providers’ own speech, Verizon’s argument that the Rules
unconstitutionally compel it to speak by transmitting the speech of others fails. In
determining what constitutes compelled speech, the Supreme Court has
traditionally treated entities that carry or host the traffic of others differently than
entities that organize and select particular speech. For example, following its
ruling in PruneYard, the Court held that a federal requirement for law schools that
regularly allow campus visits by recruiting employers to allow visits by military
employers on the same basis did not unconstitutionally compel speech. See
Rumsfeld, 547 U.S. at 65 (“Nothing about recruiting suggests that law schools
agree with any speech by recruiters.”).
In contrast to its treatment of shopping centers and law schools, the Supreme
Court in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston did
not treat the annual St. Patrick’s Day Parade as a mere conduit for others’ speech.
515 U.S. 557 (1995). Instead, the Court recognized that parades are pageants
staged by their organizers “to mak[e] some sort of collective point,” such that the
state could not require parade organizers to accommodate marchers seeking to

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communicate a viewpoint that diverged from their own. Id. at 568–70. As the
Court reiterated in Rumsfeld, the constitutional violations in past compelled speech
cases such as Hurley “resulted from the fact that the complaining speaker’s own
message was affected by the speech it was forced to accommodate.” Rumsfeld,
547 U.S. at 63. But Verizon is not organizing a parade intended to communicate a
point with which the Open Internet Rules interfere; its users are not participating in
a pageant staged by Verizon. They are simply trying to speak with each other
using Verizon as a conduit, and requiring Verizon to transmit their speech
evenhandedly in no way compels Verizon to speak.
The conclusion that broadband providers like Verizon aren’t conveying a
message when they transmit someone else’s speech—and the related conclusion
that a requirement to transmit others’ speech without discrimination is not
compelling the providers’ speech—is further supported by Supreme Court
precedent on the First Amendment rights of cable television providers. “Given
cable’s long history of serving as a conduit for broadcast signals,” the Supreme
Court has noted, “there appears little risk that cable viewers would assume that the
broadcast stations carried on a cable system convey ideas or messages endorsed by
the cable operator.” Turner I, 512 U.S. at 655; see also Denver Area Educ.
Telecomms. Consortium v. FCC, 518 U.S. 727, 761 (1996) (stating that because
cable operators have not “historically exercised editorial control” over the content

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of public access channels, their “First Amendment interest [in exercising such
editorial control] is nonexistent, or at least much diminished”). Similarly, there
appears little risk that Internet users would assume that broadband providers
endorse all of the content available on the Internet, considering that providers have
historically served only as a conduit.
Indeed, any risk of assumed endorsement is far smaller here than in Turner I
because unlike broadband providers, cable providers and newspapers necessarily
exercise editorial judgment due to a scarcity of cable channels and newspaper
pages. See Turner I, 512 U.S. at 636 (explaining that a cable operator “exercis[es]
editorial discretion over which stations . . . to include in its repertoire”) (internal
citations omitted); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 256, 258
(1974) (“the compelled printing of a reply . . . tak[es] up space that could be
devoted to other material,” and “[t]he choice of material to go into a newspaper . . .
constitute[s] the exercise of editorial control and judgment”). This is not how
broadband providers operate. Verizon does not, and needs not, select and host all
of the websites, applications, or services its subscribers may choose to access.
There is no limit to the applications, content, and services available over the
Internet, and Verizon simply provides a connection to it all. Verizon’s business is
not to provide access to some curated body of Internet “greatest hits” but to give
customers a connection over which they can select for themselves which content to

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send and receive. See generally Jerry Berman & Daniel J. Weitzner, Abundance
and User Control: Renewing the Democratic Heart of the First Amendment in the
Age of Interactive Media, 104 Yale L.J. 1619 (1995).
Unlike newspapers and cable companies, and like telephone companies,
broadband providers do not and need not exercise editorial control in order to
decide how to fill a limited number of newspaper column inches or television
channels. Like telephone companies, they are not speakers under the First
Amendment simply because they transmit their users’ speech; they only serve as a
conduit for speech. Therefore, and like the non-discrimination rules that apply to
telephone companies as common carriers, the Rules are constitutional.1
Supreme Court precedent supports this view: “Unlike common carriers,
broadcasters are ‘entitled under the First Amendment to exercise the widest
journalistic freedom consistent with their public [duties].’” FCC v. League of
Women Voters of Cal., 468 U.S. 364, 378 (1984) (emphasis added)(citation
omitted); see also Denver Area, 518 U.S. at 741–42 (recognizing differing First
Amendment status among “broadcast, common carrier, [and] bookstore”); Turner
I, 512 U.S. at 684 (O’Connor, J., dissenting) (assuming constitutionality of
telephone common carriage rules). As one scholar has summed up the academic

1 Importantly, the Rules stop well short of imposing common carriage obligations
on broadband providers. FCC Br. 60–68. However, how the FCC chooses to
categorize a particular service under the Communications Act has no bearing on
the constitutional analysis.

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consensus, “The assumption for common carriers like telephone companies
generally has been that they are not speakers, and have no First Amendment right
to discriminate against speech or speakers.” Rebecca Tushnet, Power Without
Responsibility: Intermediaries and the First Amendment, 76 Geo. Wash. L. Rev.
986, 125 n.100 (2008) (emphasis added); see also Stuart Minor Benjamin,
Transmitting, Editing, and Communicating: Determining What “The Freedom of
Speech” Encompasses, 60 Duke L.J. 1673, 1686–87 (2011) (“Courts have placed
common carriers and other mere conduits at the opposite end of the spectrum from
speakers, and have held that conduits do not have free speech rights of their own.”)
(emphasis added). To conclude otherwise and hold that mere conduits for speech
are themselves speakers could thus call into question the constitutionality of all of
common carriage law, and threaten to give any actor with the physical or technical
ability to block speech—be it the telephone company, FedEx and UPS, or even
electric companies that are required to accommodate telephone and cable lines on
their poles—the First Amendment right to block such speech as an exercise of
“editorial discretion”.
In sum, Verizon’s claim that the Open Internet Rules restrict or compel
Verizon’s own speech are contrary to Supreme Court precedent, the history of
broadband Internet access service, its own representations of that service, and its
customers understanding of that service.

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III. Though Such Scrutiny is Unwarranted, the Open Internet Rules Satisfy

Intermediate Scrutiny.

The Open Internet Rules do not merit First Amendment scrutiny because
they do not restrict or compel speech by Verizon. However, if the Court disagrees,
it is clear that the Rules would easily satisfy the intermediate scrutiny standard
applied in Turner.2
Non-discrimination rules are content neutral by definition. Far more clearly
than the must-carry rules at issue in Turner, the purposes underlying the Rules here
“are unrelated to the content of speech,” Turner I, 512 U.S. at 647, and the
Supreme Court’s description of the content-neutral nature of rules in Turner
applies with even greater force to the Open Internet Rules:
They do not require or prohibit the carriage of particular ideas or
points of view. They do not penalize [broadband providers] because
of the content [that they transmit]. They do not compel [broadband

2 Notably, in regard to wireless broadband providers, it is unclear that the Turner
standard is the applicable standard. Rather, as applied to MetroPCS and Verizon
Wireless in their capacity as Title III wireless licensees, there is a strong argument
that the scarcity of wireless frequencies counsels this Court to apply the standard of
National Broadcasting Co. v. United States, 319 U.S. 190, 226–27 (1943) and Red
Lion Broadcasting Co. v. FCC
, 395 U.S. 367, 388–91 (1969), applied by this Court
in, inter alia, American Family Ass’n, Inc. v. FCC, 365 F.3d 1156, 1168–69 (D.C.
Cir. 2004). In Time Warner Entertainment Co. v. FCC, 93 F.3d 957 (D.C. Cir.
1996), this Court extended the spectrum-scarcity rationale of those cases to the
new medium of direct satellite broadcasting for the same reason the scarcity
rationale would apply here: wireless spectrum is scarce. Id. at 974–977. Under the
scarcity doctrine, government action to protect the speech interests of the public is
subject to a lower standard of scrutiny. Id. Whether television, audio radio, or
mobile broadband, services licensed under Title III all use the same scarce
spectrum and therefore merit the same standard of scrutiny.

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providers] to affirm points of view with which they disagree. They do
not produce any net decrease in the amount of available speech.
Id. The FCC’s purpose here, like Congress’ in Turner, “was not to favor
programming of a particular subject matter, viewpoint, or format, but rather to
preserve [the public’s] access” to a key communications resource regardless of
content. Id. at 646. Indeed, the Rules seek to protect all lawful Internet traffic,
whatever the content. See Time Warner Entm’t Co., L.P. v. United States, 211
F.3d 1313, 1317–1318 (D.C. Cir. 2000) (holding that subscriber limits imposed on
cable operators were content neutral because Congress’ concern in enacting the
limits “was not with what a cable operator might say, but that it might not let
others say anything at all in the principal medium for reaching much of the
public.”).
Therefore there can be no argument—like the one put forward by the
dissenting Justices in Turner I, 512 U.S. at 676–78 (O’Connor, J., dissenting)—
that the Rules single out particular content for carriage on broadband networks. In
this regard, the Rules are more akin to the non-discrimination obligations placed on
common carriers, which the same dissenters recognized do “not suffer from the
defect of preferring one speaker to another.” Id. at 684. The Rules similarly show
no preference for the speech of one user over that of another, or for that of users
over that of broadband providers. Nor is Verizon forced to forego carriage of any

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speech, as the cable companies were in Turner. The Rules simply require that all
content be carried equally.
Finally, the fact that the content-neutral Rules specifically apply to
broadband providers does not transform them into viewpoint-based restrictions
warranting strict scrutiny. As the FCC has made clear, “[o]ur action is based on
the transmission service provided by broadband providers rather than on what
providers have to say” (Order ¶ 145), and as previously discussed, the Rules do
nothing to restrict Verizon’s ability to speak online through its own websites,
blogs, video services, tweets, press releases, or any other means. The Rules do not
favor anyone’s viewpoint over Verizon’s when it speaks that way but instead are
narrowly focused on Verizon’s unique role as a conduit for speech.
As the Supreme Court noted in Turner I, “[c]able operators … are burdened
by the carriage obligations, but only because they control access to the cable
conduit. So long as they are not a subtle means of exercising a content preference,
speaker distinctions of this nature are not presumed invalid under the First
Amendment.” Id. at 645 (emphasis added). Rather, the Supreme Court continued,
“[s]uch speaker-based distinctions are permissible so long as they are ‘justified by
some special characteristic of’ the particular medium being regulated.” Id. at 660–
661 (quoting Minneapolis Star & Tribune Co. v. Minn. Comm’r of Rev., 460 U.S.
575, 585 (1983)).

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The special characteristics of the cable conduit at issue in Turner mirror
those of the broadband Internet conduit at issue here:
A daily newspaper, no matter how secure its local monopoly, does not
possess the power to obstruct readers’ access to other competing
publications. . . . [But] when an individual subscribes to cable, the
physical connection between the television set and the cable network
gives the cable operator bottleneck, or gatekeeper, control over most
(if not all) of the television programming that is channeled into the
subscriber’s home. Hence, simply by virtue of its ownership of the
essential pathway for cable speech, a cable operator can prevent its
subscribers from obtaining access to programming it chooses to
exclude. A cable operator, unlike speakers in other media, can thus
silence the voice of competing speakers with a mere flick of the
switch.
Turner I, 512 U.S. at 656–657. Like cable operators, broadband providers have
“bottleneck” or “gatekeeper” control over the high-speed Internet content that
enters (or leaves) the home, control that is exacerbated through the usually
monopolistic or duopolistic environments in which they operate. See infra at 28;
Engineers’ Br. 24–25 (describing the “terminating access monopoly” possessed by
broadband providers). The Rules squarely target this special characteristic of
broadband providers: the “ability of broadband providers to favor or disfavor
Internet traffic to the detriment of innovation, investment, competition, public
discourse, and end users.” Order ¶ 146.
Here, as in Turner I, “[t]he First Amendment’s command that government
not impede the freedom of speech does not disable the government from taking
steps to ensure that private interests not restrict, through physical control of a

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critical pathway of communication, the free flow of information and ideas.” Id. at
657. Therefore, as in that case, to the extent broadband providers’ rights as
speakers are implicated at all by the Open Internet Rules, intermediate scrutiny is
the appropriate standard of review.3 Id. at 661–62.
“A content-neutral regulation will be sustained if ‘it furthers an important or
substantial government interest … unrelated to the suppression of free expression’
[and if] the means chosen ‘do not burden substantially more speech than is
necessary.’” Turner I, 512 U.S. at 662 (citing United States v. O’Brien, 391 U.S.
367, 377 (1968) and Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) ).
The Open Internet Rules satisfy both requirements.

3 Verizon briefly argues in a footnote that strict scrutiny is appropriate because the
Open Internet Rules purportedly favor the speech of “other similarly-situated
speakers (like content providers).” See Joint Brief for Appellants/Petitioners
Verizon and MetroPCS (hereafter “Verizon Br.”) 45, n.13. But content providers,
be they websites or app stores, are not at all similarly situated to broadband
providers, which as previously described possess unique physical control over
what content flows into or out of a subscriber’s home. See infra at 22 and supra at
28–29 (further distinguishing broadband Internet service from other Internet
services and content). The decision in Comcast Cablevision of Broward County v.
Broward County
, 124 F. Supp. 2d 685 (S.D. Fla. 2000), does not change this
conclusion. As an initial matter, that district court case was wrongly decided. See
David Wolitz, Open Access and the First Amendment: A Critique of Comcast
Cablevision of Broward County, Inc. v. Broward County
, 4 Yale Symp. L. & Tech.
6 (2001) (explaining at length why the case was wrongly decided under Turner).
Moreover, the decision in Comcast Cablevision v. Broward County is
distinguishable because it was based in part on the fact that cable operators did not
have gatekeeper control over Internet access because most people used dial-up
services. 124 F. Supp. 2d at 696 (“[c]able operators control no bottleneck
monopoly over access to the Internet. Today, most customers reach the Internet by
telephone). That fact is no longer true. See supra at 9–10.

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A.

The Open Internet Rules Further An Important Government
Interest.

The Open Internet Rules further at least three important government
interests: promoting infrastructure investment, promoting competition between
online services, and protecting Internet users’ ability to receive and share the
content of their choice. FCC Br. 74. Each of these is an important interest, but
amici here focus on the third interest highlighted by the FCC, further described in
its Order as an interest in “enabling consumer choice, end-user control, free
expression, and the freedom to innovate without permission—ensur[ing] the
public’s access to a multiplicity of information sources and maximiz[ing] the
Internet’s potential to further the public interest.” Order ¶ 146.
Assuring that Internet users and innovators retain the ability to exercise their
First Amendment rights online, to speak and receive speech without interference
from the broadband providers that have bottleneck control over their high-speed
access to the Internet, is not merely an important, but indeed a compelling,
government interest. As Turner I affirmed, “assuring that the public has access to
a multiplicity of information sources is a governmental purpose of the highest
order, for it promotes values central to the First Amendment.” 512 U.S. at 663.
“Indeed,” the Court continued, “it has long been a basic tenet of national
communications policy that the widest possible dissemination of information from
diverse and antagonistic sources is essential to the welfare of the public.” Id.

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(internal quotation marks omitted); see also Marvin Ammori, First Amendment
Architecture, 2012 Wisc. L. Rev. 1, 15–18 & n.68 (citing scholarship exploring the
constitutionality of media and telecommunications policies furthering the speech
interests of users, viewers, callers, and listeners).
The roots of this recognition that protection of First Amendment rights is
itself an important government interest can be found much farther back than
Turner. As Justice Black previously articulated,
It would be strange indeed however if the grave concern for freedom
of the press which prompted adoption of the First Amendment should
be read as a command that the government was without power to
protect that freedom. The First Amendment … rests on the
assumption that the widest possible dissemination of information from
diverse and antagonistic sources is essential to the welfare of the
public, that a free press is a condition of a free society. Surely a
command that the government itself shall not impede the free flow of
ideas does not afford non-governmental combinations a refuge if they
impose restraints upon that constitutionally guaranteed freedom.
Associated Press v. United States, 326 U.S. 1, 20 (1945) (“Freedom of the press
from governmental interference under the First Amendment does not sanction
repression of that freedom by private interests.”); Red Lion, 395 U.S. at 390 (“It is
the right of the viewers and listeners, not the right of the broadcasters, which is
paramount.”). Broadband providers’ ability to act as gatekeepers and discriminate
against lawful content and applications that Internet users would otherwise be able
to communicate to each other poses a clear and present danger to Americans’

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ability to exercise their free speech rights online. Based on Turner I, addressing
that threat is unquestionably an important and substantial government interest.
Like the must-carry rules in Turner, the Open Internet Rules were “designed
to address a real harm” and “will alleviate it in a material way.” Turner II, 520
U.S. at 195. The Order explicitly classifies “[t]he dangers to Internet openness” as
“not speculative or merely theoretical.” Order ¶ 41. Verizon and the
TechFreedom amici may harp on the FCC’s description of the Rules as
“prophylactic”, but the FCC uses that term only to indicate that it refuses to “wait
for substantial, pervasive and potentially irreversible harms” before it acts. Id.
Contrary to Verizon’s claims, the harms the Commission seeks to prevent
are far from speculative. As cited in the Order, there have already been incidents
of a DSL broadband provider blocking a competing Internet-telephony service,
cable broadband providers interfering with traffic using peer-to-peer file-sharing
protocols, and mobile broadband providers restricting the availability of various
services on their networks, particularly those that compete directly with legacy
voice telephony. Order ¶ 35; see also Barbara van Schewick, Start-Up Video
Company Asks FCC to Improve Open Internet Proposal, Internet Architecture and
Innovation (Dec. 2, 2010), https://netarchitecture.org/2010/12/start-up-video-
company-files-concerns-about-fcc-open-internet-proposal/ (describing how an

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online video company had difficulty obtaining funding over fears of discrimination
by broadband providers, and how this is only one example of many).
In fact, one need look no further than Verizon’s own brief and the economic
incentives cited therein to realize that even more discrimination by broadband
providers is likely without rules to prevent it. Verizon Br. 44–45 (non-
discrimination rules “limit the means by which providers can secure additional
revenue,” such as by providing “differential pricing or priority access” to certain
content). Verizon attempts to have it both ways, arguing that the Rules violate its
purported First Amendment right to exercise editorial discretion over its users’
Internet access, while simultaneously arguing that it cannot and has no intent to
interfere with or block particular content or services such that the Rules serve no
purpose. These arguments cannot both be true; indeed, neither is true.

B.

The Open Internet Rules Restrict No More Speech Than
Necessary.

The Open Internet Rules are narrowly tailored to serve the government’s
interest in fostering online speech while restricting no more speech than is
necessary. Indeed, the Rules have even less impact on broadband providers’
speech than the must-carry rules ultimately upheld in Turner: there, cable
operators’ own speech was burdened by the fact that the must-carry rules deprived
them of the use of channels that they otherwise could have used to transmit their
own speech or speech chosen by them. See Turner II, 520 U.S. at 214. In this

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case, there is no channel scarcity to consider: Verizon is free to communicate as
much as it likes over the Internet. There is no speech that broadband providers
must forego creating or transmitting due to the Rules. Furthermore, to the extent a
broadband provider may want to provide a specialized or curated Internet
experience that, unlike provision of Internet access alone, is intended to express a
viewpoint—for example, by exercising editorial discretion to create a “family
friendly” information portal for users who desire to access only such content—the
Rules explicitly allow such “edited” services. Order ¶¶ 89, 143. Likewise, the
Rules prohibit only “unreasonable” discrimination, and explicitly allow for
discrimination tied to reasonable network management. Order ¶ 39.
The Rules are also narrowly tailored because they do not apply to all
providers of Internet transmission services but only to providers of Internet access,
where the lack of competition and broadband providers’ physical control of the
communications conduit create a clear bottleneck that would enable content
gatekeeping antithetical to First Amendment values. See supra at 9–10 (discussing
lack of competition in Internet access market); see also John Blevins, The New
Scarcity: A First Amendment Framework for Regulating Access to Digital
Platforms, 79 Tenn. L. Rev. 353, 380–81 (2012) (describing how most Americans
can only choose between one of two broadband access providers, while many can
only choose one).

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Nor do the Rules burden speakers and innovators who use Internet access
services to provide applications, content, and services. In these markets, a wide
variety of competing services are available and the risk and impact of
discrimination is much less. See Blevins, 79 Tenn. L. Rev. at 359–361 (2012)
(distinguishing the Internet’s competitive “application layer” from the less
competitive “network layer”). Therefore, Verizon’s claim that the Rules are
underinclusive by not applying to application platforms and search engines has it
backwards—the Rules are narrowly tailored precisely because they do not reach
these markets, where there is no last-mile chokepoint and there is ample
opportunity for (and actuality of) competition. Indeed, the Rules are narrowly
tailored even at the network layer, ignoring backbone Internet providers and
focusing solely on those providers with a terminating monopoly at the “last mile”.
In sum, although the Open Internet Rules do not restrict or compel Verizon’s
speech such that First Amendment scrutiny is required, the Rules nonetheless
easily satisfy the intermediate scrutiny that was applied in Turner.





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CONCLUSION

For the foregoing reasons, this Court should reject Verizon’s claim that the
Open Internet Rules violate the First Amendment.
Dated: November 15, 2012

Respectfully submitted,

By: /s/ Kevin Bankston







Kevin S. Bankston






Emma J. Llansó
CENTER FOR DEMOCRACY &
TECHNOLOGY






1634 I St NW, Suite 1100






Washington, DC 20006






Tel: (202) 637-9800






Fax: (202) 637-0968
kbankston@cdt.org
ellanso@cdt.org





Counsel for Amici Curiae
Center for Democracy & Technology, et al.

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME

LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE

REQUIREMENTS PURSUANT TO FED. R. APP. P. 32(a)(7)(C)


I hereby certify as follows:
1.
The foregoing Brief of Amici Curiae the Center for Democracy &
Technology and Legal Scholars complies with the type-volume limitation of Fed.
R. App. P. 32(a)(7)(B). The brief is printed in proportionally spaced 14-point type,
and there are 6,975 words in the brief according to the word count of the word-
processing system used to prepare the brief (excluding the parts of the brief
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2.
The brief complies with the typeface requirements of Federal Rule of
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November 15, 2012



/s/ Kevin Bankston








Kevin S. Bankston
Attorney for Amici Curiae
Center for Democracy & Technology, et al.

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USCA Case #11-1355 Document #1405177 Filed: 11/15/2012 Page 44 of 47

CERTIFICATE OF SERVICE

I hereby certify that on November 15, 2012, I caused copies of the foregoing
BRIEF AMICI CURIAE OF THE CENTER FOR DEMOCRACY &
TECHNOLOGY AND LEGAL SCHOLARS IN SUPPORT OF APPELLEE to be
filed with the Clerk of the United States Court of Appeals for the D.C. Circuit via
the Court’s CM/ECF system, which will send notice of such filing to all counsel
who are registered CM/ECF users. Other counsel, marked with an asterisk below,
will receive service by mail.
Carl W. Northrop
Helgi C. Walker
Michael Lazarus
William S. Consovoy
Andrew Morentz
Eve Klindera Reed
Telecommunications Law
Brett A. Shumate
Professionals PLLC
Wiley Rein LLP
875 15th Street, NW, Suite 750
1776 K Street, NW
Washington, DC 20005
Washington, DC 20006
Counsel for MetroPCS
Counsel for Verizon
Communications, Inc., et al.


Michael E. Glover
Mark A. Stachiw
Edward Shakin
General Counsel, Secretary & Vice
William H. Johnson
Chairman
Verizon
MetroPCS Communications, Inc.
1320 North Courthouse Road, 9th
2250 Lakeside Blvd.
Floor
Richardson, TX 75082
Arlington, VA 22201
Counsel for MetroPCS
Counsel for Verizon
Communications, Inc., et al.


John T. Scott, III

Verizon Wireless

1300 I Street, NW

Suite 400 West

Washington, DC 20005

Counsel for Verizon

32

USCA Case #11-1355 Document #1405177 Filed: 11/15/2012 Page 45 of 47
Walter E. Dellinger
Henry Goldberg
Brianne Gorod
Goldberg, Godles, Wiener & Wright
Anton Metlitsky
1229 Nineteenth Street, NW
O’Melveny & Myers LLP
Washington, DC 20036
1625 Eye Street, NW
Counsel for Open Internet Coalition
Washington, DC 20006

Counsel for Verizon
Harold J. Feld

Public Knowledge
Samir C. Jain
1818 N Street, NW, Suite 410
Wilmer Cutler Pickering, et al.
Washington, DC 20036
1875 Pennsylvania Avenue, NW
Counsel for Public Knowledge
Washington, DC 20006

Counsel for Verizon
Michael F. Altschul

CTIA – The Wireless Association®
*Sean Lev
1400 16th Street, NW, Suite 600
Peter Karanjia
Washington, DC 20036
Jacob M. Lewis
Counsel for CTIA – The Wireless
Richard K. Welch
Association®
Joel Marcus

FCC Office of General Counsel
Matthew F. Wood
445 12th Street, SW
Free Press
Washington, DC 20554
1025 Connecticut Avenue, NW,
Counsel for FCC
Suite 1110

Washington, DC 20036
James Bradford Ramsay
Counsel for Free Press
General Counsel

National Association of Regulatory
Nancy C. Garrison
Utility Commissioners
Catherine G. O’Sullivan
1101 Vermont Avenue, Suite 200
Robert J. Wiggers
Washington, DC 20005
U.S. Department of Justice
Counsel for NASUCA
Antitrust Div., Appellate, Rm. 3224

950 Pennsylvania Avenue, NW
Genevieve Morelli
Washington, DC 20530-0001
Independent Telephone &
Counsel for the United States
Telecommunications Alliance

1101 Vermont Avenue, N.W.,
R. Craig Lawrence
Suite 501
U.S. Attorney’s Office
Washington, DC 20005
555 4th Street, NW
Counsel for ITTA
Washington, DC 20530

Counsel for the United States

33

USCA Case #11-1355 Document #1405177 Filed: 11/15/2012 Page 46 of 47
Jonathan E. Nuechterlein
John P. Elwood
Elvis Stumbergs
Eric A. White
Heather M. Zachary
Vinson & Elkins LLP
Wilmer Cutler Pickering Hale &
2200 Pennsylvania Avenue, NW,
Dorr, LLP
Suite 500 West
1875 Pennsylvania Avenue, NW
Washington, DC 20037
Washington, DC 20006-1420
Counsel for the Cato Institute,
Counsel for CTIA – The Wireless
Competitive Enterprise Institute, Free
Association®
State Foundation, and TechFreedom


Jeffrey J. Binder
*Randolph J. May
Law Office of Jeffrey Binder
Free State Foundation
2510 Virginia Avenue, NW,
P.O. Box 60680
Suite 1107
Potomac, MD 20859
Washington, DC 20037
Counsel for Free State Foundation
Counsel for Vonage Holdings Corp.


*Sam Kazman
E. Duncan Getchell, Jr.
Competitive Enterprise Institute
*Wesley Glenn Russell, Jr.
1899 L Street, NW
Office of the Attorney General
12th Floor
900 East Main Street
Washington, DC 20036
Richmond, VA 23219
Counsel for Competitive Enterprise
Counsel for the Commonwealth of
Institute
Virginia


David Bergmann
Brendan Daniel Kasper
Assistant Consumers’ Counsel Chair,
*Kurt Matthew Rogers
NASUCA Telecommunications
Vonage Holdings Corp.
Committee
23 Main Street
Office of the Ohio Consumers’
Holmdel, NJ 07733
Counsel
Counsel for Vonage Holdings Corp.
10 West Broad Street, Suite 800

Columbus, OH 43215

Counsel for NASUCA















34

USCA Case #11-1355 Document #1405177 Filed: 11/15/2012 Page 47 of 47
James Ramsay
John Blevins
National Association of Regulatory
Loyola University New Orleans
Utility Commissioners
College of Law
1101 Vermont Avenue, NW,
7214 St. Charles Ave, Box 901
Suite 200
New Orleans, LA 70118
Washington, DC 20005
Counsel for Amici Internet Engineers
Counsel for NASUCA
and Technologists


Stephen B. Kinnaird
Andrew Jay Schwartzman
Paul, Hastings, Janofsky &
2000 Pennsylvania Avenue, NW
Walker LLP
Suite 4300
875 15th Street, NW
Washington, DC 20006
Washington, DC 20005
Counsel for Amicus Tim Wu
Counsel for MetroPCS



Quentin Riegel

National Association of Manufacturers

733 10th Street, N.W.

Suite 700

Washington, DC 20001

(202) 637-3058



Russell P. Hanser

*Bryan N. Tramont

Wilkinson Barker Knauer, LLP

2300 N Street, N.W.

Suite 700

Washington, DC 20037

(202) 783-4141

Counsel for the National Association

of Manufacturers






Dated: November 15, 2012




/s/ Kevin Bankston


Kevin S. Bankston




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