• by Wendy Davis  @wendyndavis, November 21, 2012

Tim Wu, the law professor who coined the term "net neutrality," has joined a host of other industry observers in asking a federal appeals court to uphold the Federal Communications Commission's neutrality rules.

Wu filed his own friend-of-the-court brief that takes aim at Verizon's argument that the regulations impinge its free-speech rights. He argues that the company's interpretation is at odds with more than 100 years of common carrier rules, which prohibit content transmittors -- like telephone companies -- from picking and choosing which calls to put through based on content.

The neutrality rules, which took effect last year, ban wireless and wireline broadband providers from blocking sites or competing applications. The regulations also prohibit wireline providers from engaging in unreasonable discrimination.

Verizon is asking an appeals court to vacate the rules. The telecom says the FCC lacked authority to enact the regulations, and that the rules restrict the free-speech rights of broadband providers by requiring them to transmit all manner of content.

But Wu says that accepting Verizon's argument would open all common-carrier regulations to free-speech challenges. "Transmitters similar to Verizon have been subject to non-discrimination duties similar to those imposed by the [FCC's] order since the 1840s. There is no way to hold the order unconstitutional without implying the same for much of more than a century and a half of similar regulations," he argues in a friend-of-the-court brief filed with the Circuit Court of Appeals in D.C.

Wu also says Verizon's argument blurs the distinction between carriers -- such as itself, or companies like FedEx -- and publishers. "Erasing the line between publishers and transmitters, by granting Verizon the First Amendment protections reserved for publishers, would break sharply with more than a century of historical practice and have unpredictable consequences," he argues.

He adds that the public at large doesn't equate broadband providers with publishers able to decide what to post. "The articles a newspaper runs are understood to be part of, and the responsibility of, the newspaper. "If a blogger wrote something outrageous on the Internet, it would be absurd to complain by saying 'Can you believe the blog Verizon ran yesterday?' "