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 statuteforbade 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 .
[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/1/¾/30/84/85/114/129/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).
[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).
[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).
[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).
[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.”).
[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 ).
[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 MetroPCS6–7, 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).
[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/ .