Alamo Broadband and VoIP pioneer Daniel Berninger this week filed their joint reply brief in response to the FCC's defense of its Title II-based Open Internet rules, saying essentially that it is indefensible.
Unlike the major cable operators and ISPs—who are filing separately and challenging Title II reclassification, a new general Internet conduct standard and including interconnection under Title II, but not the three bright-line rules—Berninger and Alamo want all the rules struck, saying that they compel speech.
They focused on the First Amendment argument and particularly paid prioritization, which the FCC says is off limits and they say is an exercise of speech that the FCC is suppressing.
"The FCC admits that broadband providers engage in and transmit speech, but contends the First Amendment does not protect these activities," they wrote. "That position is indefensible."
While the FCC is dead set against ISPs prioritizing speech, including their own over others, Alamo and Berninger are fine with it.
"With prioritization, broadband providers convey a message by “favor[ing]” certain speech—that prioritized content is superior—because it is delivered faster. This is no different than a cable operator favoring popular channels by placing them on particular cable tiers," they said. "By foreclosing prioritization, the Order restricts broadband providers’ editorial discretion to favor their own and unaffiliated Internet content."
VoIP pioneer Berninger wants to be able to pay to prioritize his service so he says nixing priority infringes on the speech of edge providers like himself.
There are various levels of judicial review of First Amendment claims, but whether or not the court applies strict scrutiny, or less so, they say the FCC's rules don't pass muster. "The open Internet rules cannot survive any level of scrutiny because they foreclose the exercise of editorial discretion in the name of equalizing all speech," they said.