Title II allows the FCC to determine what content and media Internet access providers must transmit on their own private networks, so the First Amendment has constantly dogged the FCC’s “net neutrality” proceedings. If the Supreme Court agrees to take up an appeal from the DC Circuit Court of Appeals, which rejected a First Amendment challenge this summer, it will likely be because of Title II’s First Amendment deficiencies.
Title II has always been about handicapping ISPs qua speakers and preventing ISPs from offering curated Internet content. As former FCC commissioner Copps said, absent the Title II rules, “a big cable company could block access to an investigative report about its less-than-stellar customer service.” Tim Wu told members of Congress that net neutrality was intended to prevent ISPs from favoring, say, particular news sources or sports teams.
But just as a cable company chooses to offer some channels and not others, and a search engine chooses to promote some pages and not others, choosing to offer a curated Internet to, say, children, religious families, or sports fans involves editorial decisions. As communications scholar Stuart Benjamin said about Title II’s problem, under current precedent, ISPs “can say they want to engage in substantive editing, and that’s enough for First Amendment purposes.”
Title II – Bringing Broadcast Regulation to the Internet
Title II regulation of the Internet is frequently compared to the Fairness Doctrine, which activists used for decades to drive conservatives out of broadcast radio and TV. As a pro-net neutrality media professor explained in The Atlantic last year, the motivation for the Fairness Doctrine and Title II Internet regulation are the same: to “rescue a potentially democratic medium from commercial capture.” This is why there is almost perfect overlap between the organizations and advocates who support the Fairness Doctrine and those who lobbied for Title II regulation of the Internet.
These advocates know that FCC regulation of media has proceeded in similar ways for decades. Apply the expansive “gatekeeper” label to a media distributor and then the FCC will regulate distributor operations, including the content transmitted. Today, all electronic media distributors–broadcast TV and radio, satellite TV and radio, cable TV, and ISPs–whether serving 100 customers or 100 million customers, are considered “gatekeepers” and their services and content are subject to FCC intervention.
With broadband convergence, however, the FCC risked losing the ability to regulate mass media. Title II gives the FCC direct and indirect authority to shape Internet media like it shapes broadcast media. In fact, Chairman Wheeler called the Title II rules “must carry–updated for the 21st century.”
The comparison is apt and suggests why the FCC can’t escape the First Amendment challenges to Title II. Must-carry rules require cable TV companies to transmit all local broadcast stations to their cable TV subscribers. Since the must-carry rules prevent the cable operator editorial discretion over their own networks, the Supreme Court held in Turner I that the rules interfered with the First Amendment rights of cable operators.
But the Communications Act Allows Internet Filtering
Internet regulation advocates faced huge problem, though. Unlike other expansions of FCC authority into media, Congress was not silent about regulation of the Internet. Congress announced a policy in the 1996 update to the Communications Act that Internet access providers should remain “unfettered by State and Federal regulation.”
Regulation advocates dislike Section 230 because of its deregulatory message and because it expressly allows Internet access providers to filter the Internet.
Professor Yochai Benkler, in agreement with Lawrence Lessig, noted that Section 230 gives Internet access providers editorial discretion. Benkler warned that because of 230, “ISPs…will interject themselves between producers and users of information.” Further, these “intermediaries will be reintroduced not because of any necessity created by the technology, or because the medium requires a clearly defined editor. Intermediaries will be reintroduced solely to acquire their utility as censors of morally unpalatable materials.”
Professor Jack Balkin noted likewise that “…§ 230(c)(2) immunizes [ISPs] when they censor the speech of others, which may actually encourage business models that limit media access in some circumstances.”
Even the FCC acknowledges the consumer need for curated services and says in the Open Internet Order that Title II providers can offer “a service limited to offering ‘family friendly’ materials to end users who desire only such content.”
While that concession represents a half-hearted effort to bring the Order within compliance of Section 230, it simply exposes the FCC to court scrutiny. Allowing “family friendly” offers but not other curated offers is content-based distinction. Under Supreme Court RAV v. City of St. Paul, “[c]ontent-based regulations are presumptively invalid.” Further, the Supreme Court said in US v. Playboy, content-based burdens must satisfy the same scrutiny as content-based bans on content.
Circuit Split over the First Amendment Rights of Common Carriers
Hopefully the content-based nature of the Title II regulations are reason enough for the Supreme Court to take up an appeal. Another reason is that there is now a circuit split regarding the extent of First Amendment protections for common carriers.
The DC Circuit said that the FCC can prohibit content blocking because ISPs have been labeled common carriers.
In contrast, other courts have held that common carriers are permitted to block content on common carrier lines. In Information Providers Coalition v. FCC, the 9th Circuit held that common carriers “are private companies, not state actors…and accordingly are not obliged to continue…services of particular subscribers.” As such, regulated common carriers are “free under the Constitution to terminate service” to providers of offensive content. The Court relied on its decision a few years earlier in Carlin Communications v. Mountain States Telephone and Telegraph Company that when a common carrier phone company is connecting thousands of subscribers simultaneously to the same content, the “phone company resembles less a common carrier than it does a small radio station” with First Amendment rights to block content.
Similarly, the 4th Circuit in Chesapeake & Potomac Telephone Co. v. US held that common carrier phone companies are First Amendment speakers when they bundle and distribute TV programming, and that a law preventing such distribution “impairs the telephone companies’ ability to engage in a form of protected speech.”
The full DC Circuit will be deciding whether to take up the Title II challenges. If the judges decline review, the Supreme Court would be the final opportunity for a rehearing. If appeal is granted, the First Amendment could play a major role. The Court will be faced with a choice: Should the Internet remain “unfettered” from federal regulation as Congress intended? Or is the FCC permitted to perpetuate itself by bringing legacy media regulations to the online world?