After Hurricane Sandy, survivors needed, in addition to safety and power, the ability to communicate. Yet in parts of New York City, mobile communications services were knocked out for days.
The problem? The companies that provide them had successfully resisted Federal Communications Commission calls to make emergency preparations, leaving New Yorkers to rely on the carriers' voluntary efforts.
We have so far heard few details about why the companies made the particular business choices they did on backup power and what the consequences of those choices were, because the FCC has been blocked from asking — even though about a third of people rely on mobile service as their only voice-communications connection.
Americans might assume that the U.S. government exercises enough authority over communications networks to ensure that they are responsibly run, reliable and available to all at reasonable rates. In reality, after a decade of steady deregulation, during which communications companies asserted that new wires required new rules, the companies are in charge of themselves.
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What's more, those that sell network connections in the United States are trying to claim a constitutional right to operate without any federal oversight.
At the moment, in the U.S. Court of Appeals for the District of Columbia Circuit, Verizon Communications is attempting to legally bar Congress and the FCC from exerting any authority over its networks, claiming that the First Amendment protects the company's “editorial discretion.” (I am among a large group of current and former government officials who this week filed a brief opposing that startling argument.)
The sweeping economic and social implications of Verizon's assertions are deeply troubling. High-speed Internet has become vital to communications in the U.S. Yet Verizon wants network operators to possess the same free-speech rights that newspaper publishers have to control the contents of their editorial pages. This could preclude Congress from making any law that inhibits a company's business choices, whether to inflict harm on a competitor or to suppress or ignore points of view of which it disapproves.
Verizon certainly has the constitutional right to make this argument. The country needs to understand, however, that what it's asking for is to privilege its own speech over that of more than 300 million Americans.
Because any communications company's job is to transmit speech, not to determine its content, the court should decide that Verizon is not, in a legal sense, a “speaker.”
This particular lawsuit is just one push in a longer effort by Verizon and the other high-speed Internet-access providers to get immunity from oversight. AT&T, just last week, filed a petition with the FCC seeking wholesale deregulation of its wires. According to Harold Feld of the consumer advocacy group Public Knowledge, this would make the company immune to all laws promoting consumer protection, competition and universal affordable communications. California became the most recent of more than 20 states to eliminate its authority over digital networks.
And consider why the FCC now is unable even to ask communications companies about their contingency plans for responding to a loss of power caused by a hurricane or other natural disaster. Five years ago the FCC, responding to findings that communications companies had supplied too little backup power during and after Hurricane Katrina, moved to adopt rules requiring the companies to have emergency energy sources. In response, the companies sued, claiming that the commission had no authority over them. Before that case could be resolved, the George W. Bush administration's Office of Management and Budget determined that such rules would require the companies to incur undue costs to gather the needed information, and the commission withdrew its effort altogether.
The wireless companies crowed over this victory: “We believe that having the flexibility to adapt to unique emergency situations will better serve American wireless consumers.”
Verizon's current First Amendment claim, read for all it is worth, is an attempt to push further against regulation than communications companies ever have before. The Constitution shouldn't be used as a sledgehammer to protect the business interests of a small set of giant companies on whose services the entire country depends.
Crawford is a contributor to Bloomberg View and a visiting professor at the Harvard Kennedy School of Government and Harvard Law School.