Writers Guild Pushes Back on Argument that Net Neutrality Rules Violate First Amendment

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The Writers Guild of America West and other content creator organizations are defending the FCC’s new neutrality rules, challenging Internet providers who claim that the regulations violate their First Amendment rights.

After the FCC passed the new rules in late February, cable and telecom companies filed nearly a dozen lawsuits, many claiming that the agency overstepped its authority in reclassifying the Internet as a Title II telecommunications service. The FCC took the regulatory step in order to establish legal footing to impose no-blocking and no-throttling rules on Internet traffic, as well a regulations banning paid prioritization.

With oral arguments scheduled for Dec. 4 before the D.C. Circuit Court of Appeals, a number of groups are weighing in on both sides of the issue.

The WGAW, Future of Music Coalition and the National Alliance for Media Arts and Culture, in an amicus brief filed on Monday, said that without the FCC’s protection, “the openness that fosters democratic discourse and innovation will give way to oligopoly and corporate control of speech, which are hallmarks of traditional media platforms.”

They said that there was “some irony” in the fact that some plaintiffs have cited the First Amendment in challenging the FCC rules.

That was a reference to a brief filed in July from plaintiffs Alamo Broadband and Daniel Berninger. They argued that broadband providers “are speakers because they engage in speech, and they exercise the same editorial discretion as cable television operators in deciding which speech to transmit.

“The rules are subject to strict scrutiny because they compel providers to carry all speech, including political speech with which providers disagree, and because the rules discriminate among speakers on the Internet,” they wrote in their brief.

But the WGAW and other groups say that the plaintiffs’ description “bears no resemblance to what consumers recognize as Internet access.”

“In fact, ISPs are the computer-aided, faster versions of Federal Express, UPS or Union Pacific. When a consumer orders a movie written by a WGAW member, she expects the ISP simply to deliver the movie. The movement of that content from point to point is the ISP’s core function. The function is not speech.”

They also said that such a rationale would create a “legal anomaly” that would transform conduct into speech merely because “the fixation of the content has changed from code on a DVD to code on an IP packet transmitted over the Internet.”

The Writers Guild has championed robust FCC net neutrality rules while other Hollywood guilds have remained largely silent. The WGAW noted that the growing number of online video services are offering new opportunities for writers and other content creators, who have otherwise seen the consolidation of the media over the past two decades.

Other plaintiffs in the case, like the National Cable and Telecommunications Assn., argue that the FCC has adopted a “radical course” in reclassifying the Internet that subjects the broadband industry to “a host of burdensome Title II provisions that have nothing to do with Internet openness.”