Net Neutrality and the First Amendment: Observations on the FCC’s order in Preserving the Open Internet (H. Travis)

I would like to thank Marvin for inviting me to blog here for a while as part of his merry band of cyber experts.  I teach cyberlaw and other subjects at Florida International University College of Law in Miami, FL.  I typically write about copyright, Internet freedom, and human rights law.   Although my first post will be about net neutrality, I hope in the future to blog on my other interests, including copyright, fair use, the First Amendment, global online freedom, and political and religious persecution around the world.

The FCC’s order in Preserving the Open Internet, Docket Nos. GN-09-191
WC-07-52, FCC-10-201
, released last December, contains an important debate about the FCC’s jurisdiction and the First Amendment implications of net neutrality rules between Chairman Julius Genachowski and Commissioner Robert McDowell.  The Chairman gets the better of the argument in my view, but in this time of politicized statutory and constitutional decisionmaking, Commissioner McDowell’s views may presage those of the federal courts.

Jurisdictional Jockeying

The jurisdictional debate hinges on whether broadband Internet deployment has been reasonable and timely in light of the FCC’s July 2010 conclusion that deployment was lagging by international standards, which Commissioner McDowell rejects as inconsistent with the conclusion of the National Broadband Plan that 95% of Americans live in housing units with access to broadband at 4 Mbps download speeds.  The Chairman argues, in a key passage:

As noted, Section 706 of the 1996 Act directs the Commission (along withstate commissions) to take actions that encourage the deployment of “advanced telecommunications capability.””[A]dvanced telecommunications capability,” as defined in the statute, includes broadband Internet access. Under Section 706(a), the Commission must encourage the deployment of such capability by “utilizing, in a manner consistent with the public interest, convenience, and necessity,” various tools including “measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.”….

In Comcast, the D.C. Circuit identified Section 706(a) as a provisionthat “at least arguably . . . delegate[s] regulatory authority to the Commission,”and in fact “contain[s] a direct mandate–the Commission ‘shall encourage.”‘….

Congress necessarily invested the Commission with the statutory authority to carry out those acts. Indeed, the relevant Senate Report explained that the provisions of Section 706 are “intended to ensure that one of the primary objectives of the[1996 Act]–to accelerate deployment of advanced telecommunications capability–is achieved,” and stressed that these provisions are “a necessary fail-safe” to guarantee that Congress’s objective is reached….

[See] Ad Hoc Telecomms. Users Comm., 572 F.3d at 906-07 (“The general andgenerous phrasing of s 706 means that the FCC possesses significant albeit notunfettered, authority and discretion to settle on the best regulatory orderegulatory approach to broadband.”).

Ignoring that Section 706(a) expressly contemplates the use of “regulating methods” such as price regulation, some commenters read prior Commission orders assuggesting that Section 706 authorizes only deregulatory actions. See AT&T Comments at 216 …. They are mistaken. The Pulver Order stated only that Section 706 did not contemplate the application of “economic and entry/exit regulation inherent in Title II” to information service Internet applications. Pulver Order, 19 FCC Rcd at 3379, para.19 n.69 (emphasis added). The open Internet rules that we adopt today do not regulate Internet applications, much less impose Title II (i.e., common carrier) regulation on such applications. Moreover, at the same time the Commissiondetermined in the Cable Modem Declaratory Ruling and the Wireline Broadband Reportand Order that cable modem service and wireline broadband services (such as DSL) could be provided as information services not subject to Title II, it proposed new regulations under other sources of authority including Section 706. See Cable Modem Declaratory Ruling, 17 FCC Rcd at 4840, para. 73; Wireline Broadband Reportand Order, 20 FCC Rcd at 14929-30, 14987, para. 146. On the same day the Commission adopted the Wireline Broadband Report and Order, it also adopted the Internet Policy Statement, which rested in part on Section 706. 20 FCC Rcd 14986, para. 2 (2005). Our prior orders therefore do not construe Section 706 as exclusively deregulatory. And to the extent that any prior order does suggest such a construction, we now reject it. See Ad Hoc Telecomms. Users Comm., 572 F.3d at908 (Section 706 “direct[s] the FCC to make the major policy decisions and toselect the mix of regulatory and deregulatory tools the Commission deems mostappropriate in the public interest to facilitate broadband deployment andcompetition”) (emphasis added).

In dissent, Commissioner McDowell argues that this order pushes any Section 706 authority that the Commission may have to the breaking point:

Today, the Commission is choosing to ignore the recent past as it attempts the same act. In so doing, theFCC is not only defying a court, but it is circumventing the will of a large, bipartisan majority of Congress as well. More than 300 Members have warned theagency against exceeding its legal authority. The FCC is not Congress. We cannot make laws. Legislating is the sole domain of the directly elected representatives of the American people. Yet the majority is determined to ignore the growingchorus of voices emanating from Capitol Hill in what appears to some as anobsessive quest to regulate at all costs. Some are saying that, instead of actingas a “cop on the beat,” the FCC looks more like a regulatory vigilante. Moreover, the agency is further angering Congress by ignoring increasing calls for acessation of its actions and choosing, instead, to move ahead just as Members leave town. As a result, the FCC has provocatively charted a collision course with the legislative branch….

The Order’s reliance on Section 251(a)(1) is flawed for similar reasons. That provision imposes a duty on telecommunications carriers “to interconnect directly or indirectly with the facilities of other telecommunications carriers.” The Order notes that an increasing number of customers use VoIP services and positsthat if a broadband Internet service provider were to block certain calls via VoIP, it would ultimately harm users of the public switched telephone network….

[The Chairman has] ignored the impressive strides the nation has made in developing and deploying broadband infrastructure and services since issuance of the first 706 Report. Amazingly enough, the most recent 706 Report managed to find failure even whilepointing to data (first made public in the National Broadband Plan) showing that”95% of the U.S. population lives in housing units with access to terrestrial,fixed broadband infrastructure capable of supporting actual download speeds of atleast 4 Mbps.” In fact, only 15 percent of Americans had access toresidential broadband services in 2003. Only seven years later, 95 percent enjoyed access, making broadband the fastest penetrating disruptive technology inhistory.

The assumption of Commissioner McDowell that broadband Internet deployment has been timely and equitable in the United States was persuasively rebutted by a July 2010 report of the Commission.  In particular, the Commission’s analysis of census-tract level data indicated that millions of “broadband” connections were slower than 4 Mbps, which is considered the minimum needed to stream video successfully.  About 16 million “high-speed” Internet connections in the United States offered service of slowed than 200 kbps either downstream or upstream, another eight million or so were slower than 768 kbps either downstream or upstream, and more than 50 million had either download speeds slower than 3 Mbps or upload speeds slower than 200 kbps:

Based on the analysis described above, we estimate that 1,024 out of 3,230 counties in the United States and its territories are unserved by broadband.These unserved areas are home to 24 million Americans living in 8.9 million households. As set forth in more detail in Appendix B, the 1,024 unserved areas have, on average: (1) a population of 23,479; (2) a population density of 138.3 people per square mile; and (3) a per capita income of $14,565 measured in 1999 dollars.

• Of the 102 million total (combined residential and business) high-speed connections at year-end 2008, 86 million (or 84% or the total) were faster than 200 kbps in both upstream and downstream directions, 77% met the NOFA definition of broadband service (with 768 kbps or higher advertised downstream speeds and upstream speeds above 200 kbps), 49% had downstream speeds of 3 megabits per second (mbps) or more and upload speeds above 200 kbps, 34% had downstream speeds of 6 mbps or more and upload speeds above 200 kbps, and 11% had downstream speeds of 10 mbps or more and upload speeds above 200 kbps….
• Of the 86 million residential high-speed connections reported at year-end 2008, 69 million (or 80% of the total) met the NOFA definition of broadband service. Of these, 56% were cable modem, 31% were aDSL, 4% were FTTP, 9% were mobile wireless subscribers with data plans for full Internet access, and 1% were a technology other than these.

Lack of broadband Internet access seems to be disproportionately concentrated in poor, southern counties in Arkansas, Kentucky, Mississippi. Missouri, Oklahoma, and Texas, according to Appendix C to the report.

Even Commissioner McDowell admitted at that time that “7 million households that currently do not have access to high-speed Internet.”  He argued that subsidies to corporations, rather than FCC assertion of its long-dormant section 706 power to regulate deployment, was the answer.

It is regrettable that the FCC in its 2010 section 706 order did not conduct a comparative analysis of the contributions of open access or unbundling regulation, which is arguably a type of net neutrality, on availability of broadband Internet on a residential ultra-high-speed basis.  As I point out in The FCC’s New Theory of the First Amendment, France and Japan have regulated their way to amazingly cheap and fast Internet infrastructure:

Empirical research to date has revealed substantial evidence in favor of the technology and Internet companies’ position that neutrality regulation may enhance innovation.  This research indicates that the exploitation of local broadband monopolies and duopolies in the United States is reducing the output of broadband access and related services, and increasing the prices of such services.   The average speed of a broadband connection in Japan, which adopted neutrality regulation, is over ninety megabits per second, compared to only nine in the United States.  Broadband access by households is around a third higher in Japan.   The average price of broadband service is two to three times as high in the United States as in France or Japan, with a fifty megabit per second line costing less than $25 per month in Japan.   By 2005, a French Internet company was offering a package of high-speech Internet access, telephone service, and multi-channel television for an astounding $32.50.   Most Americans pay $38 to $44 per month just for broadband Internet access.

The FCC’s New Theory of the First Amendment, 51 Santa Clara L. Rev. (2010).

The debate within the FCC is mirrored by one between President Obama, who praises the order, and Republicans in Congress, who threaten to defund the agency to the extent necessary to preserve unfettered corporate power over Internet content and applications.  As President Obama argued:

Today’s decision will help preserve the free and open nature of the Internet while encouraging innovation, protecting consumer choice, and defending free speech.

Incoming Speaker of the House John Boehner responded that the House would work in 2011 to undo the decision as an illegal power grab.

First Amendment Fracas

Chairman Genachowski disposes of several First Amendment challenges to net neutrality regulation with the common-sense observation that broadband companies do not advertise themselves or typically in fact act as editorializers like liberal newspapers or conservative cable networks:

When the Supreme Court held in Turner I that cable operators were protected by the First Amendment, the critical factor that made cable operators “speakers” was their production of programming and their exercise of “editorial discretion over which programs and stations to include” (and thus which to exclude).

Unlike cable television operators, broadband providers typically are best described not as “speakers,” but rather as conduits for speech. The broadband Internet access service at issue here does not involve an exercise of editorial discretion that is comparable to cable companies’ choice of which stations orprograms to include in their service. In this proceeding broadband providers havenot, for instance, shown that they market their services as benefiting from aneditorial presence. To the contrary, Internet end users expect that they can obtain access to all or substantially all content that is available on the Internet, without the editorial intervention of their broadband provider.

See, e.g., AT&T, AT&T U-verse, http://www.att-services.net/att-u-verse.html (AT&TU-verse: “Customers can get the information they want, when they want it”);Verizon, FiOS Internet, www22.verizon.com/Residential/FiOSInternet/Overview.htmand Verizon, High Speed Internet, www22.verizon.com/Residential/HighSpeedInternet(Verizon FiOS and High Speed Internet: “Internet, plus all the free extras”).

[See also] Verizon Comments at 117 (“[B]roadband providers today providetraditional Internet access services that offer subscribers access to all lawfulcontent and have strong economic incentives to continue to do so.”) (emphasis added).

[See also] Charter Commc’ns, Inc., Subpoena Enforcement Matter, 393 F.3d771, 777 (8th Cir. 2005) (subpoenas served on Charter were not authorized because “Charter’s function” as a broadband provider “was limited to acting as a conduit for the allegedly copyright protected material” at issue); Verizon Internet Servs., 351 F.3d at 1237 (accepting Verizon’s argument that federal copyright law “does not authorize the issuance of a subpoena to an ISP acting as a mere conduit forthe transmission of information sent by others”).

AT&T and [the National Cable & Telecommunications Association or NCTA] argue that open Internet rules interfere with the speech rights of content and application providers to the extent they are prevented from paying broadband providers for higher quality service. Purchasing a higher quality of termination service for one’s own Internet traffic, though, is not speech–just as providing the underlying transmission service is not. Telephone common carriers, for instance, transmit users’ speech for hire, but no court has ever suggested that regulation of common carriage arrangements triggers First Amendment scrutiny.

Even if open Internet rules did implicate expressive activity, they would not violate the First Amendment. Because the rules are based on the characteristics of broadband Internet access service, independent of content or viewpoint, they would be subject to intermediate First Amendment scrutiny. The regulations in this Order are triggered by a broadband provider offering broadband Internet access, not by the message of any provider. Indeed, the point of open Internet rules is to protect traffic regardless of its content. Verizon’s argument that such regulation is presumptively suspect because it makes speaker-based distinctions likewise lacks merit: Our action is based on the transmission service provided by broadband providers rather than on what providers have to say. In any event, speaker-based distinctions are permissible so long as they are “‘justified by some special characteristic of’ the particular medium being regulated”–here the ability of broadband providers to favor or disfavor Internet traffic to the detriment of innovation, investment, competition, public discourse, and end users.

Under intermediate scrutiny, a content-neutral regulation will be sustained if “it furthers an important or substantial government interest . . . unrelated tothe suppression of free expression,” and if “the means chosen” to achieve thatinterest “do not burden substantially more speech than is necessary.” The government interests underlying this Order–preserving an open Internet to encourage competition and remove impediments to infrastructure investment whileenabling consumer choice, end-user control, free expression, and the freedom to innovate without permission–ensure the public’s access to a multiplicity ofinformation sources and maximize the Internet’s potential to further the publicinterest. As a result, these interests satisfy the intermediate-scrutiny standard. Indeed, the interest in keeping the Internet open to a wide range of information sources is an important free speech interest in its own right. As Turner I affirmed, “assuring that the public has access to a multiplicity ofinformation sources is a governmental purpose of the highest order, for it promotes values central to the First Amendment.” This Order protects the speech interests of all Internet speakers.

[The public interest is consistent with the] Communications Act’s charge to the Commission to make available a “rapid and efficient” national communications infrastructure, 47 U.S.C. s 151; to promote, consistent with a “vibrant and competitive free market,” “the continued development of the Internet and other interactive computer services”; and to “encourage the development of technologies which maximize user control over what information is received,” 47 U.S.C. s 230(b)(1)-(3). Indeed, AT&T concedes that “[t]here is little doubt that preservation of an open and free Internet is an ‘important or substantial government interest.”‘ AT&T Comments at 237 (quoting Turner I, 512 U.S. at 662)….

The Turner I Court continued: “Indeed, it has long been a basic tenet of national communications policy that the widest possible dissemination of information from diverse and antagonistic sources is essential tothe welfare of the public.” Id. (internal quotation marks omitted). See also FCCv. Nat’l Citizens Comm. for Broad., 436 U.S. 775, 795 (1978) (NCCB) (quotingAssociated Press v. United States, 326 U.S. 1, 20 (1945))….

AT&T contends (AT&T Comments at 219-20) that our rules would conflict withprohibitions contained in Section 326 of the Act against “censorship” of “radio communications” or interference with “the right of free speech by means of radiocommunication.” 47 U.S.C. s 326. For the same reasons that our rules do notviolate the First Amendment, they do not violate Section 326’s statutory prohibition.

I made a very similar argument in my new paper, The FCC’s New Theory of the First Amendment, 51 Santa Clara L. Rev. (2010).

Commissioner McDowell disagreed, and his dissenting opinion on this point may be taken up or echoed by the Courts of Appeal or the Supreme Court:

Part of the argument in favor of new rules alleges that “giant corporations” will serve as hostile “gatekeepers” to the Internet. First, in the almost nine years since those fears were first sewn, net regulation lobbyists can point to fewer than a handful of cases of alleged misconduct, out of an infinite number ofInternet communications….

Both the Department of Justice andthe Federal Trade Commission are well equipped to cure any market ills. In fact, the Antitrust Law Section of the American Bar Association agrees….

There is good reason today to call into question well-worn conventional wisdom dating from the era of government-sanctioned monopolies about common carriers’ freedom of speech, particularly in the context of a competitive marketplace. Indeed, at least two sitting Justices have signaled a willingness to wrestle with the implications of the issue of common carriers’ First Amendment protections….

The problem with this is that it is increasingly clear that the Sherman Act may often not be applicable to corporate Internet censorship.  The Google cases brought by various competitors and political speakers based on alleged denials of access to Internet audiences by search engine manipulation have generally been unsuccessful, even though Google has a considerably larger market share in search than any broadband Internet companies do nationwide (this of course may not be an ideal comparison because broadband markets are local).  See Person vGoogle, 2007 WL 832941, at *2 (N.D. Cal. Mar. 16, 2007) aff’d, 2009 WL 3059092 (9th Cir. Sept. 24, 2009); Langdon v. Google, Inc., 474 F. Supp. 2d 622 (D.  Del. 2007); Kinderstart.com LLC v. Google, Inc., No. C 06-2057 JF (RS), 2006 WL 3246596, at 3 (N.D. Cal. July 13, 2006);  cf. Search King, Inc. v. Google Tech., Inc., No.CIV-02-1457-M, 2003 WL 21464568 (W.D. Okla. May 27, 2003) (holding that Google search rankings are constitutionally protected opinions).

Some of the comments to the FCC on its pending order invoked Citizen’s United v. FEC, 130 S. Ct. 876 (2010), as prohibiting the federal government, including the courts, from preferring certain types of messages over others:

To the extent that commenters try to defend the constitutionality of the proposed rules at all, their arguments tend to fall into two categories: first,they claim that that the rules pose no First Amendment problems because they promote First Amendment values (see, e.g., Public Interest Advocates [Access Humboldt et al. ] at 3-5); and,second, they contend that Internet service providers generally have no First Amendment rights because “the mere act of routing data packets is not itself inherently expressive” (Free Press at137). Neither of these arguments stands up to scrutiny….

Contrary to what the Public Interest Advocates appear to believe, the First Amendment is not a grant of power to the Federal Government to control private speech. Although the Public Interest Advocates assert that the proposed rules “help[] to fulfill the mandate of the FirstAmendment, which states that the government should seek to promote the public’s right to have access to diverse and varied social, political, and artistic expression,” Public Interest Advocates at 3, that is not at all what the First Amendment says. As relevant here, its text says quite plainly that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” language that by its terms is a strict limitation on government, not a broad authorization for the Government to regulate private speech in order to promote its own concepts of diversity and variety. Whatever the First Amendment may be, it is not a “mandate” for the Government tooversee private market places for speech. The Public Interest Advocates are similarly off the mark in arguing that “the Supreme Court has unanimously embraced a robust view of the affirmative duty of government to facilitate speech, pointing to the public’s ‘collective right to have the [electronic media] function consistently with the ends and purposes of the First Amendment.’” Public Interest Advocates at3, quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 376, 390 (1969) (material in brackets supplied by Public Interest Advocates). The Red Lion decision, of course, involved regulation ofbroadcasting – an instance where the Federal Government has a unique degree of authority overspeech, given broadcast licensees’ use of the scarce public airwaves – and the Court was careful to limit its reasoning to that context. Although the parenthetical language inserted by the Public Interest Advocates (“[electronic media]”) would seem to suggest a sweeping government powerto control electronic speech, the Court did not, in fact, endorse extensive authority over “electronic media” generally but rather focused only on government regulation of a very specific “medium,” i.e., “radio.” The Court thus prefaced the passage quoted by the Public InterestAdvocates with the observation that “the people as a whole retain their interest in free speech by radio,” 395 U.S. at 390 (emphasis added), which in turn provided the basis for the Court to declare the people’s “collective right” to have that medium – not electronic media generally –utilized in ways that advance the “ends and purposes of the First Amendment.” Then, twenty-five years later, in the first Turner Broadcasting case, the Court expressly refused to extend theRed Lion analysis to other electronic media, rejecting the Government’s argument that regulation of the cable industry should be judged by the same lenient standards applicable to broadcastregulation. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 639-40 (1994) (TurnerI); see also Citizens United v. FCC, 130 S. Ct. 876, 890 (2010) (“any effort by the Judiciary to decide which means of communication are to be preferred for the particular kind of message and speaker would raise questions as to the courts’ own lawful authority”).

Apart from broadcasting, the Court has recognized one other context in which the Government may affirmatively regulate speech in order to advance First Amendment “interests”: where anticompetitive activity has threatened a private marketplace for speech. See, e.g., Associated Press v. United States, 326 U.S. 1, 20 (1945). We have already explained in our initial comments that the Commission cannot justify the proposed rules on this basis – there is robust and increasing competition in many markets for Internet service (see NCTA Comments at 13, 56-58) – and we will not repeat those points here.

Reply Comments of National Cable and Telecommunications Ass’n, at 37-39 (Apr. 2010) (by Neal Goldberg).

In an era of what many call a “corporate socialist” theory of the First Amendment, further concentrations of the power to speak and control debate in the hands of corporations are assumed without evidence by the Supreme Court to promote a healthy marketplace of ideas accessible to natural persons, so these views may prevail.   This line of cases, extending from Harper & Row Publishers and San Francisco Arts & Athletics in the 1980s to Eldred v. Ashcroft and Citizen’s United v. FEC, may dictate the future of net neutrality.

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