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Clients in the News


Gardere Technology Attorney Peter Vogel quoted in E-Commerce Times article
Verizon Plays 'Unconstitutional' Card in Net Neutrality Fight
July 5, 2012 11:59 pm

E-Commerce Times:

Verizon has filed a legal brief with the U.S. Court of Appeals against the Federal Communications Commission's Net neutrality rules, arguing that they exceed the agency's regulatory authority and violate constitutional rights protected by the First and Fifth Amendments.

The FCC adopted the rules in December 2010. Among other provisions, ISPs cannot block content and must provide transparency into their operations. Also, packet discrimination must be "reasonable."

In its brief, Verizon says the FCC regulations violate its free speech rights.

"Broadband networks are the modern-day microphone by which their owners engage in First Amendment speech," it claims.

It also maintains that Congress never mandated the FCC to regulate the Internet.


What's Fair vs. the Law

What is fair to the customer, though, is not the point of these legal proceedings. Rather -- like any matter in dispute -- the court will consider established law and the intentions of Congress in crafting those laws.


"Because of the way the FCC is organized, with three of the five Commissioners selected by the current president, the agency will likely change its approach to this subject every four or eight years," Peter S. Vogel, a partner at Gardere Wynne Sewell, told the E-Commerce Times.

"This back-and-forth between what the FCC's role is and what the government's approach to Net neutrality should be has been going on for years -- and frankly, it is difficult to guess how it will play out until after the elections," he said.

From a strictly legal perspective, if an enterprise can demonstrate why there should be a price difference in a service, then it is hard to imagine why that company shouldn't be entitled to put that price in place, Vogel said.

Gardere Technology Attorney Peter Vogel in E-Commerce Times article

"The notion of Net neutrality has clear economic consequences for the carriers," Vogel said.

In any case, drawing out these legal arguments does not benefit either carrier or customer, Kagan pointed out. "At some point, we are simply going to have to decide: Is broadband access separate from the other services that carriers provide ... ? Or is it part of a carrier's range of services and thus a competitive service?"

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