TechFreedom joined the Competitive Enterprise Institute, the Free State Foundation and the Cato Institute as amici curiae (friends of the court) in a brief (PDF) filed with the Court of Appeals for the D.C. Circuit arguing that the FCC’s 2011 “Preserving the Open Internet” Order is unconstitutional and, as such, should be vacated by the Court.

Summary

However noble the FCC's intentions, its network-neutrality regulation, Preserving
the Open Internet[1]
("the Order"), benefits content providers at the expense of broadband providers'
constitutional rights.

By denying Internet service providers their editorial
discretion and by compelling them to convey content providers' messages with
which they may disagree, the Order violates broadband providers' First
Amendment rights.[2]
It is particularly pernicious because it applies only to some speakers.[3] The
Order therefore requires strict-scrutiny review,[4]
which it cannot survive.

The Order serves no compelling government interest: it
"solves" a "problem" even the FCC admits is almost entirely theoretical.[5] Empirical
evidence suggests that the practices the Order purports to prevent have
been, and most likely will continue to be, deterred by market forces.[6] Even
if anticompetitive behavior became a problem, those rare instances could
continue to be dealt with through existing antitrust laws. And, far from being
narrowly tailored, the Order establishes a blanket right of access. Nothing
justifies the FCC's regulation of the speech of Internet service providers, let
alone by the sweeping means adopted here.

The Order also violates the Fifth Amendment's prohibition on
takings without just compensation: it works a per se taking by giving
content providers a permanent easement for nearly unfettered use of network
owners' physical property (the cables and wires constituting their networks).[7] The
Order deprives network owners of their traditional right to exclude others
from, and control the use of, their property.[8]
And, by requiring network owners to give content providers space on their
networks, the Order leaves users to bear the full cost of funding networks, which
in turn reduces the networks' value by discouraging consumers from adopting,
and fully using, broadband.[9]
The Order "chops through the bundle" of network owners' property
rights—effecting a per se physical taking.[10] At the
very least, by displacing network owners' reasonable investment-backed
expectations, the Order effects a regulatory taking in violation of the Fifth
Amendment.

Finally, the FCC's assertion of "ancillary authority" to regulate
the Internet arrogates a boundless, and therefore dangerous, amount of power to
itself. This Court has recognized that the FCC possesses some authority over matters
ancillary to those Congress specifically delegated to it.[11] But
agency "ancillary authority" is an increasingly anomalous doctrine grounded in
pre-Chevron
Supreme Court case law[12]
and conflicts with modern administrative-law limits on agency power.[13] The
continuing validity of that doctrine is therefore ripe for reconsideration; at
a minimum, this Court should be cautious in allowing the FCC ancillary authority
to regulate the Internet.

Argument

I. The Order Violates the First Amendment by Compelling Broadband Providers
to Speak

The Order compels speech by forcing Internet
service providers to post, send, and allow access to nearly all types of content,
even if a broadband provider prefers not to transmit such content.[14]
Courts have recognized that the First Amendment protects the editorial
discretion of broadband providers in determining what content they transmit.[15]
Although, as Verizon,
MetroPCS, and even the FCC note,
alleged network-neutrality violations have been rare,[16]
that does not diminish broadband providers' constitutional rights to decide for
themselves what to transmit and on what terms. A speaker's freely made choice
to transmit the messages of others is itself an exercise of First Amendment
rights to control the content transmitted, and does not waive his right to
determine the content he chooses to transmit in the future.[17]

Nor is the Order any less
constitutionally suspect because it compels speech rather than restricts it.
Constitutionally, it makes no difference whether the government forces broadband
providers to speak in certain ways or not to speak at all. Although "[t]here
is certainly some difference between compelled speech and compelled silence, …
in the context of protected speech, the difference is without
constitutional significance …."[18]
Most fundamentally, "the First Amendment guarantees 'freedom of speech,' a
term necessarily comprising the decision of both what to say and what not
to say."[19]

The Order demands particularly
exacting scrutiny because it picks and chooses among speakers.[20]
The Order's nondiscrimination rule applies only to certain types of Internet
service providers: for instance, to broadband providers but not to "edge"
providers.[21] Thus Apple could continue to
exercise editorial discretion in deciding which applications it will allow
iPhone and iPad users to access.[22] Besides the economic disruption
caused when the government regulates only certain speakers, the government's
differential treatment of speakers violates basic First Amendment principles of,
yes, neutrality.[23] Accordingly, the Order is subject
to strict scrutiny[24] and can overcome the "strong
presumption of invalidity" that applies to all such laws[25]
only if it is "justified by a compelling government interest and is narrowly
drawn to serve that interest."[26] The FCC cannot overcome that
presumption here.

Even were this Court to view broadband
providers as common carriers—which the Commission itself says they are not[27]—the
FCC could not satisfy its burden under intermediate-scrutiny review.[28]
But as discussed below, the harms here remain entirely conjectural. The Commission has failed to identify any material
instances of denial of access, instead relying on hypothetical threats
to the "open Internet."[29]

The Government identifies no
compelling interest. The evidence simply does not show discriminatory
practices requiring new regulatory remedies.[30] As one scholar noted, although
"there are some 121.2 million broadband Internet service lines in the United
States," there are "few instances where network operators supposedly violated
the FCC's network neutrality principles."[31] That is unsurprising given how well
market forces already discipline broadband providers: consumers demand
unfettered access and "[p]erceived violations [of network neutrality] are met
with nearly immediate and widespread public backlash through the very medium
that is allegedly at risk: the free and open Internet."[32]
If the FCC fears there is insufficient broadband competition, it could address
that problem directly by ensuring adequate spectrum for competing wireless-broadband
services.[33] Finally, to the extent broadband
providers abuse market power to block access to competitors, rather than
infringe on providers' editorial discretion, such actions can be addressed
through existing antitrust law.[34]

The cable must-carry provisions upheld
in Turner
II were predicated on Congress's
express finding (entitled to "considerable deference") that most cable systems
had functional monopolies that gave them "undue market power"[35]
and that cable systems had "increasing ability and incentive to drop local
broadcast stations."[36] But no congressional findings
support the FCC's rationale for the Order; indeed, Congress has repeatedly
declined to enact network-neutrality legislation.[37]
In fact, the legislation Congress has enacted suggests it believes that
minimizing Internet regulation is a more important governmental interest than
FCC micromanagement of network access.[38]

Nor is the Order narrowly tailored to
support the government's claimed interest. It forces broadband providers to
allow nearly all speech all the time. By contrast, even under the long-abandoned
"fairness doctrine"[39] the Supreme Court permitted the
government to compel speech only when that requirement was limited in time and
scope. In CBS, Inc. v.
FCC, for instance, the Court upheld
"a limited right to 'reasonable' access that pertains only to legally
qualified federal candidates and may be invoked by them only for the purpose of
advancing their candidacies once a campaign has commenced."[40]
The Court contrasted that limited right to a general right requiring granting
access to all comers, noting, "[p]etitioners are correct that the Court has
never approved a general right of access to the media," and adding,
"[n]or do we do so today."[41] Yet the Order creates just such a
general right, with only a carve-out for whatever category of speaker the FCC
chooses to exclude from its largesse. The beneficiaries are all those
wishing to make content available through providers' networks, who will be able
to do so whenever they want. If a blanket order mandating nearly
unfettered access is "narrow," it is difficult to imagine what a "broad"
compulsion of speech would look like.

It is hornbook law that the
"government may not regulate expression in such a manner that a substantial
portion of the burden on speech does not serve to advance its goals."[42]
With few allegations of network discrimination (let alone whatever would fall
into the presumably narrower category of "unreasonable" network
discrimination), the Order would fail even if it only minimally burdened
speech. As it is, the Order forces broadband providers to substitute the
editorial discretion of content providers for their own. The Order goes too
far; in essence, it "burn[s] the house to roast the pig."[43]

II. The Order Violates the Fifth Amendment by Granting Content Providers
a Nearly Unfettered Right to Occupy Network Owners' Property

A. The Order Effects an Unconstitutional Per Se Taking Without
Just Compensation

If the Order stands, content providers will enjoy a nearly
unqualified right to occupy the
cables and wires that constitute broadband networks. The Fifth Amendment
prohibits permanent physical occupations without just compensation, "no matter
how minute the intrusion, and no matter how weighty the public purpose behind
it."[44] In fact, a "permanent physical
occupation" of property constitutes a per se taking, even if the
occupation is on a "relatively insubstantial amount[] of space."[45] The Order here provides no
compensation to network owners, yet curtails network owners' rights to exclude
users and to control the use of their networks. This works a per se taking,
regardless of the manner of and rationale behind that taking.[46]

Loretto concerned a state law requiring landlords to allow
cable-television companies to install equipment on their property.[47] The Court found the statute
unconstitutional because it permitted the company to occupy the landlord's
physical property without compensation.[48] This was a per se taking, it
held, because that placement of cable equipment on the landlord's property did
"not simply take a single 'strand' from the 'bundle' of property rights: it
chop[ped] through the bundle, taking a slice of every strand."[49] As the Court explained, "[p]roperty
rights in a physical thing have been described as the rights to possess, use
and dispose of it. To the extent that the government permanently occupies
physical property, it effectively destroys each of these rights."[50] And, the Court added, the
government need not directly occupy property to create a per se taking;
rather, a "permanent physical occupation authorized by state law is a taking
without regard to whether the State, or instead a party authorized by the
State, is the occupant."[51]

More
recently, in Bell Atlantic, this Court invalidated a Commission
order requiring local telephone companies to allow "physical co-location" by
which a competitive access provider ("CAP") would string its own cable to a
local telephone company's central office.[52] This Court held that the "Commission's
decision to grant CAPs the right to exclusive use of a portion of the
petitioners' central offices directly implicates the Just Compensation Clause
of the Fifth Amendment, under which a 'permanent physical occupation authorized
by government is a taking without regard to the public interests that it may
serve.'"[53]

Here,
the Order authorizes an occupation of broadband networks that is both physical
and permanent. The Order forbids network owners from excluding providers'
content—much like the Loretto statute forbade landlords from
excluding cable companies and the Bell order forbade local telephone
companies from excluding CAPs. And, by extension, the Order gives content
providers the right to occupy network cables and wires—just as the Loretto statute
and Bell order gave third parties the right to occupy the plaintiffs'
properties.

Although
either "real or personal property" can be subject to a per se taking,[54] a proper understanding of broadband
network communications shows that electrical networks resemble the physical
property at issue in Loretto:

[T]he
transmission of content over broadband networks is not some metaphysical act. …
Transmission of Internet content primarily involves the movement of electrons,
which are physical particles that occupy rivalrous limited space on those
[broadband] lines, en route from the Internet to the end-user consumer.[55]

Moreover,
as Loretto instructs, even though any given content provider's physical
occupation of wires may involve only a small part of total network capacity,
that is irrelevant in determining whether a taking occurred.[56]

That
content providers use network space intermittently rather than continuously
does not distinguish this case from Loretto or Bell. The Order
effectively grants content providers a permanent easement over private
broadband networks by allowing them to "'regularly'
use, or 'permanently' occupy … a thing which theretofore was understood to be
under private ownership."[57] Thus, the FCC has taken one element
from the network owner's bundle of rights and permanently transferred it to
content providers—however
intermittent content providers' use of the easement might be.

The
Court has squarely held that such easements constitute a permanent physical
occupation under Loretto. In Nollan v. California Coastal
Commission, the
Court considered California's decision to condition issuance of a rebuilding
permit on a landowner's acceptance of an easement over his beachfront property,
thus connecting two public beaches.[58] The Court held that "a 'permanent
physical occupation' has occurred, for purposes of the [Loretto per se takings]
rule, where individuals are given a permanent and continuous right to pass to
and fro, so that the real property may continuously be traversed, even though
no particular individual is permitted to station himself permanently upon the
premises."[59] Although here, no single content
provider will permanently occupy some discrete physical portion of the network
wires, the Order still allows content providers to traverse the network
permanently and continuously without interference from the owner, just as the
easement in Nollan allowed beachgoers to traverse the Nollans' property.

To
be sure, this Court held in Building Owners & Managers Ass'n
Int'l v. FCC that the Commission's order
forbidding landlords from banning tenant use of satellite dishes was not a per
se taking under Loretto.[60] But as this Court noted, the
government has heightened authority "to regulate various aspects of the
landlord-tenant relationship without paying compensation for all economic
injuries that such regulation entails, even though some of these regulations
transfer wealth from the one who is regulated to another."[61] By contrast, Internet customers
have no such "tenancy" rights in a network, but only a contractual easement to
use a network under certain terms and conditions.[62] Expanding the scope of such an
express easement (or, really, giving another easement to the content
provider) constitutes a taking even where expansion of a tenant's rights would
not.[63]

Furthermore,
the Order requires network owners to grant third-party access to all content
providers, access to which the network owners did not automatically consent
upon contracting with a subscriber. Landlords, by contrast, consensually grant
tenants access and cannot subsequently argue that "regulation of the terms of a
landlord-tenant relationship constitutes on its face an invasion of the
landlord's right to exclude" for purposes of showing a per se taking.[64] Here, a content provider is a more
constitutionally suspect "interloper with a government license," not a lessee.[65]

B. If Not a Per Se Taking, the Order Constitutes a Regulatory
Taking Under the Fifth Amendment

Even
if the Order is not a Loretto per se physical taking, it
nonetheless constitutes an unconstitutional regulatory taking without just
compensation. Determining when a regulatory taking has occurred requires the
traditional ad hoc three-factor inquiry: (1) the economic impact of the
regulation on the claimant; (2) the extent to which the regulation interferes
with reasonable investment-backed expectations; and (3) the nature of the
governmental action.[66] Although the FCC's action need not
implicate all three factors to constitute a taking,[67] it plainly does.

To
begin with, the Order substantially undermines the ability of Verizon and other
broadband providers to realize the full value of their networks, causing
economic harm to providers.[68] The Order here plainly reduces the
value of network property. First, the Order's bans on discrimination and
blocking prevent network owners from realizing the full monetary potential of
their networks via differentiated pricing.[69] By charging different rates for
varying levels of network service or bandwidth to content providers, network
owners would maximize revenue[70] and consumers could choose the
Internet experience they prefer.[71] Instead, the Order essentially requires
users alone to fund networks while allowing content providers free access.
This reduces the current and future market value of network assets, a strong
indication that regulation has had an adverse economic impact.[72] Second, the Order fossilizes
broadband networks as simply a "dumb" conduit for Internet traffic, which could
deprive network owners of other potentially profitable network uses such as
cable television or telephony.[73]

The
Order also interferes with network owners' reasonable investment-backed
expectations. In Cablevision Systems Corp. v. FCC, the case challenging the
Commission's enforcement of a "must-carry" provision against a cable-television
company, this Court noted that, to show a regulatory taking, "Cablevision was
required to show that the regulation had an economic impact that interfered
with 'distinct investment-backed expectations.'"[74] Absent any such showing, the Court
held that "any regulatory taking theory must therefore fail."[75]

Here,
the Commission's actions underscore the reasonableness of network owners'
investment-backed expectations in developing advanced broadband networks.[76] The Commission's 2002 declaratory
ruling held that cable-modem services were exempt from "common carrier"
obligations and would only be regulated under Title I of the Communications
Act,[77] a conclusion the Supreme Court approved
in National Cable & Telecomms. Ass'n
v. Brand X Internet Servs.[78] The 2002 declaratory ruling's
conclusion that the Commission believed "broadband services should exist in a
minimal regulatory environment that promotes investment and innovation in a
competitive market" established network owners' expectation that they would be
able to recoup their investments over time under light-touch FCC regulatory
policies.[79] Indeed, following Brand X,
the Commission issued a 2007 declaratory ruling freeing all broadband network
owners, not just cable owners, from the requirement that they sell portions of
their bandwidth at wholesale rates to competitors.[80]

The
understanding that network owners would not be regulated as de facto
common carriers encouraged network owners to pour billions of dollars into
building, maintaining, and modernizing broadband plants.[81] Indeed, Verizon alone invested over
$20 billion to replace millions of miles of copper wire with fiber-optic
cables.[82] The Order undercuts these
investment-backed expectations by subjecting network owners to a stringent
regulatory regime.

Finally,
the Order physically invades network owners' property.[83] But even if the Order does not lead
to the permanent physical occupation of networks, at the very least it
facilitates a physical invasion of property because content providers
are given unqualified access to physical network assets regardless of the
owner's wishes. As Commissioner McDowell noted in his dissent from the Order:
"[T]he new regulatory regime effectively authorizes third-party occupation of
some portion of a broadband ISP's transmission facilities by constraining the
facility owner's ability to decide how to best manage the traffic running over
the broadband platform."[84] The Order's invasion is tantamount
to a physical occupation.

Finally,
invalidating the Order as a taking would not leave the government powerless to
regulate anticompetitive behavior that harms consumers. Antitrust violations,
for example, may justify imposition of equitable remedies that would otherwise
be unconstitutional takings.[85] But that does not support the FCC's
actions here. Network owners have not engaged in any restraints of trade or other
forms of anticompetitive conduct necessary to justify such a remedy.[86]

III. The FCC's Reliance on "Ancillary Jurisdiction" Demands Heightened
Scrutiny

Although existing case law recognizes that the FCC
possesses some "ancillary jurisdiction" over matters for which it lacks
explicit regulatory authority if "reasonably ancillary" to matters the
Communications Act "specifically delegate[s]" to the agency,[87] that
doctrine is increasingly "out of step with contemporary Supreme Court
jurisprudence,"[88]

limiting an agency's regulatory authority to that explicitly delegated by
Congress.[89]

Allowing an agency that derives its regulatory authority
solely from congressional delegation to claim ancillary authority beyond that
grant of power violates basic administrative-­law principles. Properly
understood, "[t]he Commission 'has no constitutional or common law existence or
authority, but only those authorities conferred upon it by Congress.'"[90] But, by invoking
its ancillary authority, the FCC grasps beyond the regulatory powers that Congress
actually gave it.[91]

The Supreme Court precedents supporting the FCC's ancillary-authority
claims predate the seminal decision in Chevron.[92] The
FCC's claims more closely resemble the discarded notion of "implied rights of
action" than Chevron and its progeny.[93]
Underscoring how anomalous ancillary agency authority really is, the FCC is one
of the few agencies that still invokes the concept as grounds for greater
regulatory reach.[94]

Agencies have every incentive to interpret the scope of
their authority broadly.[95]
For that reason, courts are well advised to recognize agency regulatory
authority only where Congress has specifically granted it. At a minimum,[96] these
considerations warrant caution in recognizing ancillary authority: "[w]hen an
agency's assertion of power into new arenas is under attack, … courts should
perform a close and searching analysis of congressional intent, remaining
skeptical of the proposition that Congress did not speak to such a fundamental
issue."[97]
Given the grave First- and Fifth-Amendment concerns present here, this case
warrants that same "very cautious approach in deciding whether the Commission
has validly invoked its ancillary jurisdiction."[98] If the
FCC can invent authority to regulate the Internet today, there is no limit to what
it might do tomorrow.

---

[1]
25 F.C.C. Rcd. 17905 (Dec. 23, 2010), 76 C.F.R. 59192 (Sept. 23, 2011),
available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-201A1.pdf.

[2]
E.g., Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S.
781, 796–97 (1988), available at http://www.law.cornell.edu/supremecourt/text/487/781;
see also Randolph J. May, Net Neutrality Mandates: Neutering the
First Amendment in the Digital Age, 3 I/S: A J. of Law and Pol'y for the
Info. Soc'y 198 (2007), available at https://doc-14-5c-docsviewer.googleusercontent.com/viewer/securedownload/lp4o101fobt7fvkvb1j9419soohkeb7i/c3onk9vmskvv7gigej96fdique15rt27/1343096100000/ZXhwbG9yZXI=/AGZ5hq-Dc6F2KsRWqBNbdobqvXsk/MWlyYWFYWkNPQ1lSX2Y1M0ozRi1UeEZpeHBpTFVUdm1OcHQ1TmRjWkVObWFhdVpVajVRRDdia0h0NGZYRA==?a=dl&filename=NetNeutralityFirstAmendmentArticle.pdf&sec=AHSqidbjJNov0jkv_WoyUyD7jo9rl6hTwtVNbC9qr4WLduZIiWBn3GZmOeNME7P3D0y2dTw3zcPP.

[3]
See Order ¶¶50, 94.

[4]
E.g., Wooley v. Maynard, 430 U.S. 705, 714–17 (1977), available
at http://www.oyez.org/cases/1970-1979/1976/1976_75_1453/.

[5]
See Order ¶¶12, 24, 62, 38, 147.

[6]
See, e.g., Barbara Esbin, FCC Could Mess Up Internet with 'Net
Neutrality' Rules No One Needs, U.S. News & World Rep. (Nov. 24, 2009),
available at http://www.usnews.com/opinion/articles/2009/11/24/fcc-could-mess-up-internet-with-net-neutrality-rules-no-one-needs.

[7]
See, e.g., Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 831
(1987), available at http://www.oyez.org/cases/1980-1989/1986/1986_86_133/.

[8]
See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015
(1992), available at http://www.oyez.org/cases/1990-1999/1991/1991_91_453/.

[9]
Cf. Hodel v. Irving, 481 U.S. 704, 714 (1987), available at http://www.oyez.org/cases/1980-1989/1986/1986_85_637/.

[10]
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982),
available at http://www.oyez.org/cases/1980-1989/1981/1981_81_244/.

[11]
See, e.g., Comcast Corp. v. FCC, 600 F.3d 642, 653 (D.C. Cir.
2010), available at http://www.cadc.uscourts.gov/internet/opinions.nsf/EA10373FA9C20DEA85257807005BD63F/$file/08-1291-1238302.pdf.

[12]
See, e.g., id. at 646 (collective authorities).

[13]
See, e.g., Gonzales v. Oregon, 546 U.S. 243, 267 (2006), available at http://www.law.cornell.edu/supct/html/04-623.ZS.html;
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000), available at http://www.oyez.org/cases/1990-1999/1999/1999_98_1152/.

[14]
See Order ¶1 ("Fixed broadband providers may not block lawful content,
applications, services, or non-harmful devices ….").

[15]
See Comcast Cablevision of Broward Cnty. v. Broward Cnty., 124 F. Supp.
2d 685 (S.D. Fla. 2000), available at http://www.yale.edu/lawweb/jbalkin/telecom/comcastvbroward.pdf
(holding a county ordinance requiring favorable-term access for all Internet
service providers violates broadband cable owners' free-speech rights); id.
at 692 ("Liberty of circulating is not confined to newspapers and periodicals,
pamphlets and leaflets, but also to delivery of information by means of fiber
optics, microprocessors and cable."); see also Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 636 (1994), available at http://www.oyez.org/cases/1990-1999/1993/1993_93_44/
("Turner I") ("[Through] original programming or by exercising editorial
discretion over which stations or programs to include in its repertoire[, cable
programmers and operators] see[k] to communicate messages on a wide variety of
topics and in a wide variety of formats.") (internal citations omitted); Ill.
Bell Tele. Co. v. Village of Itasca, 503 F. Supp. 2d 928, 948 (N.D. Ill.
2007), available at http://www.leagle.com/xmlResult.aspx?page=9&xmldoc=20071431503FSupp2d928_11346.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7
(collecting cases recognizing that cable and satellite companies' activities
are protected by the First Amendment).

[16]
See Joint Brief for Verizon and MetroPCS 47, available at http://www.scribd.com/doc/98917674/Verizon-MetroPCS-Net-Neutrality-Brief-As-FILED;
Order ¶24.

[17]
Cf. Malik v. Brown, 16 F.3d 330, 332 (9th Cir. 1994), available at http://bulk.resource.org/courts.gov/c/F3/16/16.F3d.330.91-36320.html
("A 'use it or lose it' approach [for constitutional rights] does not square
with the Constitution.").

[18]
Riley, 487 U.S. at 796–97; see also Hurley v. Irish-Am. Gay, Lesbian
& Bisexual Group of Boston, Inc., 515 U.S. 557, 573 (1995), available
at http://www.oyez.org/cases/1990-1999/1994/1994_94_749/
(extending the protections against compelled speech to "business corporations
generally and [to] professional publishers"); Miami Herald Publ'g Co. v.
Tornillo, 418 U.S. 241, 258 (1974), available at http://www.oyez.org/cases/1970-1979/1973/1973_73_797/
(holding unconstitutional a Florida statute requiring newspaper to publish political
candidate's reply to critical editorial).

[19]
Riley, 487 U.S. at 796–97; cf. Pac. Gas & Elec. Co. v. Pub.
Util. Comm'n, 475 U.S. 1, 9 (1986), available at http://www.oyez.org/cases/1980-1989/1985/1985_84_1044/
(holding electric utility could not be compelled to include in its billing envelope
an advocacy group's flyer with which it disagreed).

[20]
Cf., e.g., R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 386
(1992), available at http://www.oyez.org/cases/1990-1999/1991/1991_90_7675/
("The government may not regulate use based on hostility—or favoritism—towards
the underlying message expressed."); Police Dep't of Chicago v. Mosley,
408 U.S. 92, 94–95 (1972), available at http://www.oyez.org/cases/1970-1979/1971/1971_70_87
(finding general ban on picketing near schools impermissibly content-based
because it contained an exclusion for labor picketing).

[21]
See Order ¶50. According to the Commission, edge providers differ from
Internet service providers in that they merely provide "content or applications
over the Internet." Id. By contrast, according to the Commission,
"broadband providers control access to the Internet for their subscribers and
for anyone wishing to reach those subscribers."). Id.

[22]
See Larry Downes, Unscrambling the FCC's Net Neutrality Order:
Preserving the Open Internet—But Which One? 20 CommLaw Conspectus 83, 93
(2011–2012), available at https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=20+CommLaw+Conspectus+83&srctype=smi&srcid=3B15&key=c7ff09ab40c609674fc87a450ad1f2b2.

[23]
Cf. Turner I, 512 U.S. at 659 ("Regulations that discriminate among
media, or among different speakers within a single medium, often present
serious First Amendment concerns."); Larry Downes, The Net Neutrality Walk
of Shame (Sept. 28, 2009), available at http://larrydownes.com/the-net-neutrality-walk-of-shame/.

[24]
E.g., Wooley v. Maynard, 430 U.S. 705, 714–17 (1976), available
at http://www.oyez.org/cases/1970-1979/1976/1976_75_1453/.

[25]
Vieth v. Jubelirer, 541 U.S. 267, 294 (2004), available at http://www.oyez.org/cases/2000-2009/2003/2003_02_1580/.

[26]
Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2738 (2011), available
at http://www.oyez.org/cases/2010-2019/2010/2010_08_1448.

[27]
See Order ¶¶79, 122 n.381; see also Nat'l Cable & Telecomms.
Ass'n v. Brand X Internet Servs., 545 U.S. 967, 975–76 (2005); May, supra,
at 209. Of course, this did not stop the FCC from regulating broadband
providers as if they were common carriers. See, e.g., Joint
Brief for Verizon & MetroPCS 15–20.

[28]
Cf. Turner Broad. Sys. v. FCC, 520 U.S. 180 (1997), available at http://www.oyez.org/cases/1990-1999/1996/1996_95_992/
("Turner II") (applying intermediate scrutiny to cable must-carry
provisions). After all, under intermediate scrutiny, "the guiding principle …
is that the government must 'demonstrate that the recited harms' to the
substantial government interest 'are real, not merely conjectural, and that the
regulation will in fact alleviate those harms in a direct and material way.'" Minority Television Project,
Inc. v. FCC, 676 F.3d 869, 879 (9th Cir. 2012), available at http://www.nyls.edu/user_files/1/3/4/30/84/85/114/129/Minority%20Television%20Project,%20Inc.%20v.%20F.C.C..pdf
(quoting Turner I, 512 U.S. at 664–65.).

[29]
See Order ¶¶12, 24, 62, 38, 147.

[30]
See, e.g., Joint Brief for Verizon and MetroPCS 47. See also Downes,
supra, at 101 (noting that examples in the Order "of instances where
broadband providers acted to 'limit openness'" comprised just "four instances"
in "three paragraphs"); id. at 101–05 (describing in detail these
instances and noting that the Order's regulation might not even have covered a
majority of them).

[31]
Esbin, supra.

[32]
Id.

[33]
See Department of Justice, Notice of Inquiry, In the Matter of A
National Broadband Plan for Our Future, GN Docket No. 09-51 (Jan. 4, 2010),
available at http://www.justice.gov/atr/public/comments/253393.pdf#page=8
(discussing importance of wireless competition).

[34]
See, e.g., United States v. Microsoft Corp., 253 F.3d 34 (D.C.
Cir. 2001), available at http://bulk.resource.org/courts.gov/c/F3/253/253.F3d.34.00-5213.00-5212.html
(upholding monopolization claim under the Sherman Act). But even violations of
antitrust laws cannot be "predicated solely on protected speech." Jefferson
Cnty. Sch. Dist. No. R-1 v. Moody's Investor's Servs., 175 F.3d 848, 860
(10th Cir. 1999), available at http://bulk.resource.org/courts.gov/c/F3/175/175.F3d.848.97-1157.html;
Eugene Volokh & Donald Falk, First Amendment Protection for Search
Engine Search Results (Working Paper, Apr. 20, 2012) at 20, available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2055364
("[A]ntitrust law itself, like other laws, is limited by the First Amendment,
and may not be used to control what speakers say or how they say it.").

[35]
Turner I, 512 U.S. at 633.

[36]
Turner II, 520 U.S. at 197.

[37]
See, e.g., H.R. 3458, 111th Cong. (2009); H.R. 5353, 110th Cong. (2008);
S. 215, 110th Cong. (2007); S. 2917, 109th Cong. (2006); H.R. 5273, 109th Cong.
(2006); S. 2360, 109th Cong. (2006).

[38]
See, e.g., Blake Morant, Symposium: First Amendment Issues in
Emerging Technology – The Search for a Viable Theory of Regulation in the
Digital Age, 47 Univ. of Louisville L. Rev. 661, 672 (2009), available at https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=47+U.+Louisville+L.+Rev.+661&srctype=smi&srcid=3B15&key=85b49a6946f2649dfb2636b26709d229
("The Telecommunications Act of 1996 … clearly requires deference to the
'vibrant and competitive free market,' which should be 'unfettered by Federal
or State regulation.'") (quoting 47
U.S.C. § 230(b)(2) (2006)).

[39]
See generally Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C.
Cir. 1989), available at http://bulk.resource.org/courts.gov/c/F2/867/867.F2d.654.87-1544.87-1516.html.

[40]
453 U.S. 367, 396 (1981), available at http://www.oyez.org/cases/1980-1989/1980/1980_80_207/
(internal citations omitted).

[41]
Id.

[42]
Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989), available at http://www.oyez.org/cases/1980-1989/1988/1988_88_226.

[43]
Reno v. ACLU, 521 U.S. 844, 872 (1997), available at http://www.oyez.org/cases/1990-1999/1996/1996_96_511/.

[44]
Lucas, 505 U.S. at 1015.

[45]
Loretto, 458 U.S. at 430; see also Bell Atl. Tel. Cos. v. FCC, 24
F.3d 1441, 1446 (D.C. Cir. 1994), available at http://openjurist.org/24/f3d/1441/bell-atlantic-telephone-companies-v-federal-communications-commission.

[46]
See Loretto, 458 U.S. at 426 (noting traditional "ad hoc" factors
applied in takings cases are irrelevant when a "permanent physical occupation"
occurs).

[47]
Id. at 421.

[48]
Id. at 421–22.

[49]
Id. at 435 (quoting Andrus v. Allard, 444 U.S. 51, 65-66 (1979)),
available at http://supreme.justia.com/cases/federal/us/444/51/.

[50]
Id. (internal quotations omitted).

[51]
Id. at 432 n.9.

[52]
24 F.3d at 1444.

[53]
Id. at 1445 (quoting Loretto, 458 U.S. at 426). Furthermore, in Bell
Atlantic, this Court held that a regulation implicating a taking, even a
compensated one, negates the usual deference to which an agency is entitled
under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984), available at http://www.oyez.org/cases/1980-1989/1983/1983_82_1005/.
24 F.3d at 337. And, the Court added, a regulation that works an uncompensated
taking compels courts to strike down the order, not grant compensation. See
id. at 337–38.

[54]
Nixon v. United States, 978 F.2d 1269, 1284–85 (D.C. Cir. 1992),
available at http://bulk.resource.org/courts.gov/c/F2/978/978.F2d.1269.92-5021.html.

[55]
Daniel Lyons, Virtual Takings: The Coming Fifth Amendment Challenge to Net
Neutrality Regulation, 86 Notre Dame L. Rev.
65, 97 (2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577082;
cf. Turner Broad. Sys., Inc. v. FCC, 819 F. Supp. 32, 67 n.10 (D.D.C.
1993) (Williams, J., dissenting) (acknowledging that "insertion of local
stations' programs into a cable operator's line-up" implicates Loretto
because such insertion "presumably is not a metaphysical act, and presumably
takes place on real property"), vacated on other grounds, 512
U.S. 622 (1994); CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp.
1015, 1021 (S.D. Ohio 1997), available at http://cyber.law.harvard.edu/torts3y/readings/06-CvCP.html
("Electronic signals generated and sent by computer have been held to be
sufficiently physically tangible to support a trespass cause of action.").

[56]
See 458 U.S. at 430.

[57]
Id. at 427 n.5 (quoting Frank Michelman, Property, Utility, and
Fairness: Comments on the Ethical Foundations of "Just Compensation" Law,
80 Harv. L. Rev. 1165, 1184 (1967), available at http://www.jstor.org/stable/10.2307/1339276).

[58]
483 U.S. at 831.

[59]
Id. at 832.

[60]
254 F.3d 89, 97–99 (D.C. Cir. 2001), available at http://bulk.resource.org/courts.gov/c/F3/254/254.F3d.89.99-1021.99-1009.html.

[61]
Id. at 98 (internal quotation omitted).

[62]
See Lyons, supra, at 74.

[63]
See, e.g., Preseault v. United States, 100 F.3d 1525, 1571 n.16
(Fed. Cir. 1996), available at http://bulk.resource.org/courts.gov/c/F3/100/100.F3d.1525.93-5068.93-5067.html
(holding a law expanding an "expressly limited" easement for railroad use into
a public easement was a taking).

[64]
Bldg. Owners, 254 F.3d at 99 (citing Yee v. City of Escondido,
503 U.S. 519, 531 (1992), available at http://www.law.cornell.edu/supct/html/90-1947.ZS.html).

[65]
See id. at 98 (quoting FCC v. Fla. Power Corp., 480 U.S.
245, 252–53 (1987), available at http://www.law.cornell.edu/supremecourt/text/480/245).

[66]
See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978),
available at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0438_0104_ZS.html.

[67]
See, e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 633–34 (2001)
(O'Connor, J., concurring), available at http://www.oyez.org/cases/2000-2009/2000/2000_99_2047/.

[68]
See, e.g., Joint Brief for Verizon and MetroPCS 6–7,
51–52; see also Penn Central, 438 U.S. at 126–27 (discussing how adverse
economic impacts of a regulation evidence a regulatory taking).

[69]
See Joint Brief for Verizon and MetroPCS 20, 43–44.

[70]
See Lyons, supra, at 74.

[71]
Cf. May, supra, at 206–07.

[72]
See Hodel, 481 U.S. at 714 (looking to property's market value in
considering whether regulation constituted a taking).

[73]
See Seth Cooper, Sledgehammering the False Narrative For Regulating
Broadband Internet, 7 Perspectives from FSF Scholars 16, at *1–2 (2012), available
at http://www.freestatefoundation.org/images/Sledgehammering_the_False_Narrative_For_Regulating_Broadband_Internet_071212.pdf;
cf. Andrus, 444 U.S. at 66 (assessing the economic impact of a law
banning the sale of parts of protected birds by looking to the harm caused by
the law's elimination of the primary economic use for them).

[74]
570 F.3d 83, 98–99 (2009), available at http://www.leagle.com/xmlResult.aspx?page=6&xmldoc=In%20FCO%2020090622065.xml&docbase=CsLwAr3-2007-Curr&SizeDisp=7
(citing Penn Central, 438 U.S. at 124).

[75]
Id. at 99.

[76]
See Joint Brief for Verizon and MetroPCS 49.

[77]
In re Inquiry Concerning High Speed Access to the Internet Over Cable and
Other Facilities, 17 F.C.C. Rcd. 4798 (2002), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-77A1.pdf.

[78]
545 U.S. 967 (2005), available at http://www.law.cornell.edu/supct/html/04-277.ZS.html.

[79]
See 17 F.C.C. Rcd. at 4802.

[80]
See Appropriate Regulatory Treatment for
Broadband Access to the Internet over Wireless Networks, 22 F.C.C. Rcd. 5901, 5909 (2007), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-30A1.pdf.

[81]
See, e.g., Thomas Hazlett & Anil Caliskan, Natural
Experiments in U.S. Broadband Regulation, 7 Rev. Network Econ. 460, 477
(2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1093393
(describing growth in the broadband industry following the 2007 declaratory
ruling); cf. Penn Central, 438 U.S. at 124.

[82]
Verizon, Industry Overview, at ch.4, http://www22.verizon.com/investor/industryoverview.htm.

[83]
See 13–19, supra; see also Penn Central, 458 U.S.
at 124 ("[A regulatory taking] may more readily be found when the interference
with property can be characterized as a physical invasion by the government.").

[84]
Order, at 168 n.111 (McDowell, Comm'r, dissenting).

[85]
Cf. United States v. E.I. du Pont de Nemours & Co., 366 U.S.
316, 326 (1961), available at http://www.oyez.org/cases/1960-1969/1960/1960_55/
("[C]ourts are authorized, indeed required, to decree relief effective to
redress the violations [of antitrust law], whatever the adverse effect of such
a decree on private interests.")

[86]
See 15 U.S.C. §§ 1, 2 (2006).

[87]
See, e.g. Comcast, 600 F.3d at 646, 653 (quoting NARUC v. FCC,
533 F.2d 601, 612 (D.C. Cir. 1976)) (emphasis in Comcast).

[88]
Tr. of Oral Argument 20, Comcast v. FCC, No. 08-1291, Jan. 8, 2010
(Randolph, J.), available at http://static.arstechnica.com/CaseN08-1291ComcastvFCC.pdf.

[89]
See, e.g., Gonzales, 546 U.S. 243 at 267 ("The importance of the
issue … makes the oblique form of the claimed delegation all the more
suspect."); Brown & Williamson Tobacco Corp., 529 U.S. at 160 ("[W]e
are confident that Congress could not have intended to delegate a decision of
such economic and political significance to an agency in so cryptic a
fashion."); see also James B. Speta, FCC Authority to Regulate the
Internet: Creating It and Limiting It, 35 Loy. U. Chi. L.J. 15, 25 &
n.56 (2003), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=490122
(discussing the inconsistency between ancillary-authority cases and recent
Supreme Court cases policing agency powers more strictly).

[90]
Am. Library Ass'n v. FCC, 406 F.3d 689, 698 (D.C. Cir. 2005), available
at http://bulk.resource.org/courts.gov/c/F3/406/406.F3d.689.04-1037.html
(quoting Michigan v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001),
available at http://bulk.resource.org/courts.gov/c/F3/268/268.F3d.1075.99-1155.99-1154.99-1153.99-1152.99-1151.html).

[91]
Cf. ACLU v. FCC, 823 F.2d 1554, 1567 n.32 (D.C. Cir. 1987) ("[I]t
seems highly unlikely that a responsible Congress would implicitly delegate to
an agency the power to define the scope of its own power.").

[92]
See Comcast, 600 F.3d at 646 (collecting authorities).

[93]
Tr. of Oral Argument 20, Comcast v. FCC, No. 08-1291, Jan. 8, 2010
(Randolph, J.).

[94]
Cf. CFTC v. Schor, 478 U.S. 833, 852 (1986), available at http://supreme.justia.com/cases/federal/us/478/833/
(noting that the "wholesale importation of ancillary jurisdiction into the
agency context" has the potential to "create great[] constitutional
difficulties").

[95]
See generally Timothy K. Armstrong, Chevron Deference and Agency
Self-Interest, 13 Cornell J.L. & Pub. Pol'y 203 (2004), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=467462
(discussing why courts should view skeptically interpretations advancing
agencies' jurisdictional self-interest).

[96]
Cf. Agostini v. Felton, 521 U.S. 203, 215 (1997), available at http://www.oyez.org/cases/1990-1999/1996/1996_96_552/.

[97]
ACLU, 823 F.2d at 1567 n.32.

[98]
Am. Library Ass'n, 406 F.3d at 702.