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The FCC’s Misguided Paid Priority Ban

by on April 13, 2017 · 0 comments

There is reporting suggesting that the Trump FCC may move to eliminate the FCC’s complex Title II regulations for the Internet and restore the FTC’s ability to police anticompetitve and deceptive practices online. This is obviously welcome news. These reports also suggest that FCC Chairman Pai and the FTC will require ISPs add open Internet principles to their terms of service, that is, no unreasonable blocking or throttling of content and no paid priority. These principles have always been imprecise because federal law allows ISPs to block objectionable content if they wish (like pornography or violent websites) and because ISPs have a First Amendment right to curate their services.

Whatever the exact wording, there shouldn’t be a per se ban of paid priority. Whatever policy develops should limit anticompetitive paid priority, not all paid priority. Paid prioritization is simply a form of consideration payment, which is economists’ term for when upstream producers pay downstream retailers or distributors for special treatment. There’s economics literature on consideration payments and it’s an accepted business practice in many other industries. Further, consideration payments often benefit small providers and niche customers. Some small and large companies with interactive IP services might be willing to pay for end-to-end service reliability.

The Open Internet Order’s paid priority ban has always been short sighted because it attempts to preserve the Internet as it existed circa 2002. It resembles the FCC’s unfounded insistence for decades that subscription TV (ie, how the vast majority of Americans consume TV today) was against “the public interest.” Like the defunct subscription TV ban, the paid priority ban is an economics-free policy that will hinder new services. 

Despite what late-night talk show hosts might say, “fast lanes” on the Internet are here and will continue. “Fast lanes” have always been permitted because, as Obama’s US CTO Aneesh Chopra noted, some emerging IP services need special treatment. Priority transmission was built into Internet protocols years ago and the OIO doesn’t ban data prioritization; it bans BIAS providers from charging “edge providers” a fee for priority.

The notion that there’s a level playing field online needing preservation is a fantasy. Non-real-time services like Netflix streaming, YouTube, Facebook pages, and major websites can mostly be “cached” on servers scattered around the US. Major web companies have their own form of paid prioritization–they spend millions annually, including large payments to ISPs, on transit agreements, CDNs, and interconnection in order to avoid congested Internet links.

The problem with a blanket paid priority ban is that it biases the evolution of the Internet in favor of these cache-able services and against real-time or interactive services like teleconferencing, live TV, and gaming. Caching doesn’t work for these services because there’s nothing to cache beforehand. 

When would paid prioritization make sense? Most likely a specialized service for dedicated users that requires end-to-end reliability. 

I’ll use a plausible example to illustrate the benefits of consideration payments online–a telepresence service for deaf people. As Martin Geddes described, a decade ago the government in Wales developed such a service. The service architects discovered that a well-functioning service had quality characteristics not supplied by ISPs. ISPs and video chat apps like Skype optimize their networks, video codecs, and services for non-deaf people (ie, most customers) and prioritize consistent audio quality over video quality. While that’s useful for most people, deaf people need basically the opposite optimization because they need to perceive subtle hand and finger motions. The typical app that prioritizes audio, not video, doesn’t work for them.

But high-def real-time video quality requires upstream and downstream capacity reservation and end-to-end reliability. This is not cheap to provide. An ISP, in this illustration, has three options–charge the telepresence provider, charge deaf customers a premium, or spread the costs across all customers. The paid priority ban means ISPs can only charge customers for increased costs. This paid priority ban unnecessarily limits the potential for such services since there may be companies or nonprofits willing to subsidize such a service.

It’s a specialized example but illustrates the idiosyncratic technical requirements needed for many real-time services. In fact, real-time services are the next big challenge in the Internet’s evolution. As streaming media expert Dan Rayburn noted, “traditional one-way live streaming is being disrupted by the demand for interactive engagement.”  Large and small edge companies are increasingly looking for low-latency video solutions. Today, a typical “live” event is broadcast online to viewers with a 15- to 45-second delay. This latency limits or kills the potential for interactive online streaming services like online talk shows, pet cams, online auctions, videogaming, and online classrooms.

If the FTC takes back oversight of ISPs and the Internet it should, as with any industry, permit any business practice that complies with competition law and consumer protection law. The agency should disregard the unfounded belief that consideration payments online (“paid priority”) are always harmful.

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Who needs a telecom regulator? Denmark doesn’t.

by on March 27, 2017 · 0 comments

US telecommunications laws are in need of updates. US law states that “the Internet and other interactive computer services” should be “unfettered by Federal or State regulation,” but regulators are increasingly imposing old laws and regulations onto new media and Internet services. Further, Federal Communications Commission actions often duplicate or displace general competition laws. Absent congressional action, old telecom laws will continue to delay and obstruct new services. A new Mercatus paper by Roslyn Layton and Joe Kane shows how governments can modernize telecom agencies and laws.

Legacy Laws

US telecom laws are codified in Title 47 of the US Code and enforced mostly by the FCC. That the first eight sections of US telecommunications law are devoted to the telegraph, the killer app of 1850, illustrates congressional inaction towards obsolete regulations.

In the last decade, therefore, several media, Internet, and telecom companies inadvertently stumbled into Communications Act quagmires. An Internet streaming company, for instance, was bankrupted for upending the TV status quo established by the FCC in the 1960s; FCC precedents mean broadcasters can be credibly threatened with license revocation for airing a documentary critical of a presidential candidate; and the thousands of Internet service providers across the US are subjected to laws designed to constrain the 1930s AT&T long-distance phone monopoly.

US telecom and tech laws, in other words, are a shining example of American “kludgeocracy”–a regime of prescriptive and dated laws whose complexity benefits special interests and harms innovators. These anti-consumer results led progressive Harvard professor Lawrence Lessig to conclude in 2008 that “it’s time to demolish the FCC.” While Lessig’s proposal goes too far, Congress should listen to the voices on the right and left urging them to sweep away the regulations of the past and rationalize telecom law for the 21st century.

Modern Telecom Policy in Denmark

An interesting new Mercatus working paper explains how Denmark took up that challenge. The paper, “Alternative Approaches to Broadband Policy: Lessons on Deregulation from Denmark,” is by Denmark-based scholar Roslyn Layton, who served on President Trump’s transition team for telecom policy, and Joe Kane, a masters student in the GMU econ department. 

The “Nordic model” is often caricatured by American conservatives (and progressives like Bernie Sanders) as socialist control of industry. But as AEI’s James Pethokoukis and others point out, it’s time both sides updated their 1970s talking points. “[W]hen it comes to regulatory efficiency and business freedom,” Tyler Cowen recently noted, “Denmark has a considerably higher [Heritage Foundation] score than does the U.S.”

Layton and Kane explore Denmark’s relatively free-market telecom policies. They explain how Denmark modernized its telecom laws over time as technology and competition evolved. Critically, the center-left government eliminated Denmark’s telecom regulator in 2011 in light of the “convergence” of services to the Internet. Scholars noted,

Nobody seemed to care much—except for the staff who needed to move to other authorities and a few people especially interested in IT and telecom regulation.

Even-handed, light telecom regulation performs pretty well. Denmark, along with South Korea, leads the world in terms of broadband access. The country also has a modest universal service program that depends primarily on the market. Further, similar to other Nordic countries, Denmark permitted a voluntary forum, including consumer groups, ISPs, and Google, to determine best practices and resolve “net neutrality” controversies.

Contrast Denmark’s tech-neutral, consumer-focused approach with recent proceedings in the United States. One of the Obama FCC’s major projects was attempting to regulate how TV streaming apps functioned–despite the fact that TV has never been more abundant and competitive. Countless hours of staff time and industry time were wasted (Trump’s election killed the effort) because advocates saw the opportunity to regulate the streaming market with a law intended to help Circuit City (RIP) sell a few more devices in 1996. The biggest waste of government resources has been the “net neutrality” fight, which stems from prior FCC attempts to apply 1930s telecom laws to 1960s computer systems. Old rules haphazardly imposed on new technologies creates a compliance mindset in our tech and telecom industries. Worse, these unwinnable fights over legal minutiae prevent FCC staff from working on issues where they can help consumers. 

Americans deserve better telecom laws but the inscrutability of FCC actions means consumers don’t know what to ask for. Layton and Kane illuminate that alternative frameworks are available. They highlight Denmark’s political and cultural differences from the US. Nevertheless, Denmark’s telecom reforms and pro-consumer policies deserve study and emulation. The Danes have shown how tech-neutral, consumer-focused policies not only can expand broadband access, they reduce government duplication and overreach.

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Why Compromise and Allow the FCC to Regulate the Internet?

by on February 8, 2017 · 0 comments

If Congress and the President wanted to prevent intrusive regulation of the Internet, how would they do it? They know that silence on the issue wouldn’t protect Internet services. As Congress learned in the 1960s and 1970s with cable TV, congressional silence, to the FCC, looks like permission to enact a far-reaching regulatory regime.

In the 1990s, Congress knew the FCC would be tempted to regulate the Internet and Internet services and that silence would be seen as an invitation to regulate the Internet. Congress and President Clinton therefore passed a 1996 law, Section 230 of the Communications Decency Act, which stated:

It is the policy of the United States…to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.

But this statement raised the possibility that the FCC would regulate Internet access providers and would claim (as FCC defenders do today) they were not regulating “the Internet,” only access providers. To preempt such sophistry, Congress added that the “interactive computer services” shielded from regulation include:

specifically a service or system that provides access to the Internet….

Congress proved prescient. For over a decade, as the FCC’s traditional areas of regulation waned in importance, advocates and FCC officials have sought to regulate Internet access providers and the Internet. After two failed attempts to regulate providers and enforce net neutrality norms, the FCC decided to regulate Internet access providers with Title II, the same provisions regulating telephone and telegraph providers. Section 230 featured prominently in the dissents of commissioners Pai and O’Rielly who both noted that the Open Internet Order was a simple rejection of the plain words of Congress. Nevertheless, two judges on DC Circuit Court of Appeals blessed those regulations and the Open Internet Order in 2016.

If “unfettered from Federal regulation” means anything, doesn’t it mean that the FCC cannot use Title II, its most stringent regulatory regime, to regulate Internet access providers? Is there any combination of words Congress could draft that would protect Internet access providers and Internet services from Title II?

There is a pending appeal challenging the Open Internet Order before the DC Circuit and after that is appeal to the Supreme Court. The Supreme Court, in particular, might be receptive to a common-sense argument that “unfettered from Federal regulation” is hazy around the edges but it cannot mean regulation of ISPs’ content, services, protocols, network topology, and business models.

I understand the sentiment that a net neutrality compromise is urgently needed to save the Internet from Title II. But until the Open Internet Order appeals have concluded, I think it’s premature to compromise and grant the FCC permanent authority to regulate the Internet with vague standards (e.g., no one knows what “reasonable throttling” means). A successful appeal could mean a third and final court loss for net neutrality purists, thereby restoring Section 230’s free-market protections for the Internet. Until the Supreme Court denies cert or agrees with the FCC that up is down, black is white, and agencies can ignore clear statutes, I’m not persuaded that Congress should nullify its own deregulatory language of Section 230 with a net neutrality compromise.

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Title II, Broadcast Regulation, and the First Amendment

by on October 27, 2016 · 0 comments

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 is 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. Continue reading →

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New Article at Harvard JLPP: The FCC’s Transaction Reviews May Violate the First Amendment

by on June 8, 2016 · 0 comments

The FCC’s transaction reviews have received substantial scholarly criticism lately. The FCC has increasingly used its license transaction reviews as an opportunity to engage in ad hoc merger reviews that substitute for formal rulemaking. FCC transaction conditions since 2000 have ranged from requiring AOL-Time Warner to make future instant messaging services interoperable, to price controls for broadband for low-income families, to mandating merging parties to donate $1 million to public safety initiatives.

In the last few months alone,

  • Randy May and Seth Cooper of the Free State Foundation wrote a piece that the transaction reviews contravene rule of law norms.
  • T. Randolph Beard et al. at the Phoenix Center published a research paper about how the FCC’s informal bargaining during mergers has become much more active and politically motivated in recent years.
  • Derek Bambauer, law professor at the University of Arizona, published a law review article that criticized the use of informal agency actions to pressure companies to act in certain ways. These secretive pressures “cloak what is in reality state action in the guise of private choice.”

This week, in the Harvard Journal of Law and Public Policy, my colleague Christopher Koopman and I added to this recent scholarship on the FCC’s controversial transaction reviews. Continue reading →

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Senate Bill to Keep the Internet Free of Regulation

by on February 26, 2016 · 0 comments

Yesterday, almost exactly one year after the FCC classified Internet service as a common carrier service, Sen. Mike Lee and his Senate cosponsors (including presidential candidates Cruz and Rubio) introduced the Restoring Internet Freedom Act. Sen. Lee also published an op-ed about the motivation for his bill, pointing out the folly of applying a 1930s AT&T Bell monopoly law to the Internet. It’s a short bill, simply declaring that the FCC’s Title II rules shall have no force and it precludes the FCC from enacting similar rules absent an act of Congress.

It’s a shame such a bill even has to be proposed, but then again these are unusual times in politics. The FCC has a history of regulating new industries, like cable TV, without congressional authority. However, enforcing Title II, its most intrusive regulations, on the Internet is something different altogether. Congress was not silent on the issue of Internet regulation, like it was regarding cable TV in the 1960s when the FCC began regulating.

Former Clinton staffer John Podesta said after Clinton signed the 1996 Telecom Act, “Congress simply legislated as if the Net were not there.” That’s a slight overstatement. There is one section of the Telecommunications Act, Section 230, devoted to the Internet and it is completely unhelpful for the FCC’s Open Internet rules. Section 230 declares a US policy of unregulation of the Internet and, in fact, actually encourages what net neutrality proponents seek to prohibit: content filtering by ISPs.

The FCC is filled with telecom lawyers who know existing law doesn’t leave room for much regulation, which is why top FCC officials resisted common carrier regulation until the end. Chairman Wheeler by all accounts wanted to avoid the Title II option until pressured by the President in November 2014. As the Wall Street Journal reported last year, the White House push for Title II “blindsided officials at the FCC” who then had to scramble to construct legal arguments defending this reversal. The piece noted,

The president’s words swept aside more than a decade of light-touch regulation of the Internet and months of work by Mr. Wheeler toward a compromise.

The ersatz “parallel version of the FCC” in the White House didn’t understand the implications of what they were asking for and put the FCC in a tough spot. The Title II rules and legal justifications required incredible wordsmithing but still created internal tensions and undesirable effects, as pointed out by the Phoenix Center and others. This policy reversal, to go the Title II route per the President’s request, also created First Amendment and Section 230 problems for the FCC. At oral argument the FCC lawyer disclaimed any notion that the FCC would regulate filtered or curated Internet access. This may leave a gaping hole in Title II enforcement since all Internet access is filtered to some degree, and new Internet services, like LTE Broadcast, Free Basics, and zero-rated video, involve curated IP content. As I said at the time, the FCC “is stating outright that ISPs have the option to filter and to avoid the rules.”

Nevertheless, Title II creates a permission slip regime for new Internet services that forces tech and telecom companies to invest in compliance lawyers rather than engineers and designers. Hopefully in the next few months the DC Circuit Court of Appeals will strike down the FCC’s net neutrality efforts for a third time. In any case, it’s great to see that Sen. Lee and his cosponsors have made innovation policy priority and want to continue the light-touch regulation of the Internet.

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Sling and Cable Cutting in 2016: Is the Technology There Yet?

by on January 21, 2016 · 3 comments

People are excited about online TV getting big in 2016. Alon Maor of Qwilt predicts in Multichannel News that this will be “the year of the skinny bundle.” Wired echoes that sentiment. The Wall Street Journal’s Geoffrey A. Fowler said, “it’s no longer the technology that holds back cable cutting–it’s the lawyers.”

Well, I’m here to say, lawyers can’t take all the blame. In my experience, it’s the technology, too. Some of the problem is that most discussion about the future of online TV and cable cutting fails to distinguish streaming video-on-demand (SVOD) and streaming linear TV (“linear” means continuous pre-programmed and live “channels”, often with commercials, much like traditional cable). Continue reading →

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Unexpected and Expected Moments during the Open Internet Order Oral Arguments

by on December 8, 2015 · 0 comments

The FCC’s Open Internet Order is long and complex and the challenge to it is likewise difficult to untangle. The agency regularly engages in ad hoc rulemaking that results, per Judge Posner, in “unprincipled compromises of Rube Goldberg complexity among contending interest groups viewed merely as clamoring suppliants who have somehow to be conciliated.” The Open Internet Order is no exception and therefore faces several legal vulnerabilities.

In my view, the soft underbelly of the Order is the agency’s position that ISPs are not First Amendment speakers. While courts are generally very deferential to agencies, they are not deferential on constitutional questions. Further, the court panel (two Democrat appointees, one Republican appointee), unfortunately, was not in the carriers’ favor. The major carriers, however, have focused their arguments on whether the agency should receive deference in classifying Internet access as a telecommunications service.

That said, it’s possible the major carriers could get at least a partial win with their arguments. That likelihood is increased because Alamo Broadband and Dan Berninger raised the First Amendment problems with the Order. Given the strength of the First Amendment arguments, the Court might shy away from reaching the issue of whether ISPs are speakers. Below, some thoughts on the moments during oral arguments that surprised me and what went according to predictions.

The Unexpected

A receptive ear in Judge Williams re: the First Amendment arguments. (Good for: ISPs) The First Amendment arguments went better than I’d expected. Alamo and Berninger’s counsel, Brett Shumate, argued the First Amendment issues well and had good responses for skeptical questions. Shumate found a receptive ear in Judge Williams, who seemed to understand the serious First Amendment risks posed by the Order. Williams repeatedly brought up the fact that MetroPCS a few years ago tried to curate the Internet and provide its customers free YouTube, only to face resistance from the FCC and net neutrality activists.

The other two judges were more skeptical but Shumate corrected some misconceptions. The biggest substantive objection from Srinivasan, who sounded the most skeptical of the First Amendment arguments, was that if the Court reaches the First Amendment issues, it has determined that the FCC has reasonably classified Internet access as a common carrier service. He suggested that this means the First Amendment issues mostly disappear. No, Shumate explained. Congress and the FCC can call services whatever they want. They could declare Google Search or Twitter feeds a common carrier service tomorrow and that would have zero effect on whether filtering by Google and Twitter is protected by the First Amendment. Tatel asked whether Section 230’s liability protections suggest ISPs are common carriers and Shumate corrected that misconception, a subject I have written on before.

A major FCC concession that ISPs have to option to change their offerings and escape common carrier regulation. (Good for: ISPs) Title II advocates are spinning the terse First Amendment exchanges as a victory. I’m not convinced. The reason the arguments didn’t generate more heat was because the FCC lawyer made a huge concession at the outset: ISPs that choose to filter the Internet are not covered by the Open Internet Order.

FCC lawyer: “If [ISPs] want to curate the Internet…that would drop them out of the definition of Broadband Internet Access Service.”

Judge Williams: “They have that option under the Order?”

FCC lawyer: “Absolutely, your Honor. …If they filter the Internet and don’t provide access to all or substantially all endpoints, then they drop out of the definition of [BIAS] and the rules don’t apply to them.”

This admission seriously undermines the purposes of the Order. The FCC is stating outright that ISPs have the option to filter and to avoid the rules. That seems to mean that Comcast’s Stream Internet protocol television service, where it is curating streaming TV programs, is not covered by the rules. If Facebook’s Free Basics or a similar service launched in the US giving free, limited access to the Web, that is not covered by the Order. Finally, this means that the many broadband packages that offer family-friendly filtering are outside of the FCC’s rules. It’s not clear how much remains to be regulated since all ISPs reserve the right to filter content and each filters at least some content.

Judge Tatel directing most questioning. (Good for: wash) Many view Judge Tatel as the “swing vote” but I was surprised at the relative quiet from Williams and Srinivasan. Tatel was the most inquisitive, by my listening. He was much more skeptical of some of the FCC’s arguments regarding interconnection than I expected but also more skeptical of the First Amendment arguments than I expected.

Little discussion of Chevron Step 0. (Good for: FCC) Many on the free-market side wanted to make this case about Chevron Step 0 and the notion that Title II is too economically and socially significant to warrant deference. Unfortunately, at oral argument there was very little discussion of Chevron Step 0.

The Expected

Focus on agency discretion. (Good for: FCC) The judges generally seem to see this as a straightforward Chevron case and the questions focused on Chevron Step 1, whether there is ambiguity in the statute about “offering telecommunications” for the FCC to interpret. As expected, the FCC did fairly well in their arguments because these technical issues are very hard to untangle.

On Chevron Step 2, whether the reinterpretation of “telecommunications service” to include Internet access was reasonable, the US Telecom attorney was strong. He leaned heavily on the fact that in Section 230, which amends the Communications Act, Congress announces a national policy that the Internet and specifically Internet access services, should remain “unfettered by Federal regulation.” That would seem to preclude the FCC from using, at the very least, its most powerful regulatory weapon–common carriage–against Internet access providers. Even if “telecommunications service” is ambiguous, he stated, it was unreasonable to include Internet access in that definition.

Focus on whether mobile broadband can be properly classified under Title II. (Benefit: ISPs) As many commentators have noted, the idea that the traditional phone network and the mobile broadband network can be classified as the same interconnected network is far-fetched. Each judge seemed very skeptical of the FCC’s argument and Tatel suggested there was a lack of adequate notice.

Srinivasan pointed out that striking down the wireless rules and maintaining the wireline rules would mean that using the same tablet in different areas of your house would lead to different regulatory treatment, depending on whether you’re on the cellular broadband network or Wifi. Title II supporters think this is pretty clever gotcha but communications law already abounds with seemingly absurd FCC- and court-created legal distinctions. (The FCC invents its own absurd distinction and offers vastly different regulatory treatment for DNS operated by an ISP v. DNS operated by literally anyone else.)

Conclusion

Predictions about major regulatory cases are notoriously difficult. I’ve read (and made) enough predictions about big court cases to know that prognosticators almost always get it wrong. If that’s the case, at least consider one thought-provoking outcome: the rules are largely struck down because the FCC provided inadequate notice on most of the major issues of classification.

If the rules, in contrast, were sustained under Chevron and judged to have had adequate notice, the Court would likely need to confront the First Amendment issues. I don’t think Tatel and Srinivasan, especially, want to rule on these hard constitutional questions. The judges must know the Supreme Court has, as Prof. Susan Crawford says, an “absolutist approach” to the First Amendment that protects speakers of all kinds. Sustaining the rules means the FCC risks a loss on First Amendment grounds on appeal that would nearly eliminate the ability of the FCC to regulate the Internet. For that reason, and because of the notice problems, the Court may strike down the rules on notice and comment grounds, thereby preserving the ability of the FCC to take a fourth bite at the apple.

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Webinar about the Title II Lawsuit, Chevron, and the First Amendment

by on October 27, 2015 · 0 comments

On October 7th I appeared on a webinar hosted by Prof. Barry Umansky and Ball State’s Digital Policy Institute about the FCC’s Title II case before the DC Circuit Court of Appeals, US Telecom Association v. FCC. The other panelists were Andrew Schwartzman of Georgetown University and Stuart Brotman of Harvard Law School and the Brookings Institution. Check it out, but here’s a brief summary of our hour-long discussion. Continue reading →

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Reposted: Will the Open Internet Order survive a First Amendment challenge?

by on September 11, 2015 · 0 comments

As FCC Commissioner Jessica Rosenworcel said of the Internet, “It is our printing press.” Unfortunately, for First Amendment purposes, regulators and courts treat our modern printing presses — electronic media — very differently from the traditional ones. Therefore, there is persistent political and activist pressure on regulators to rule that Internet intermediaries — like social networks and search engines — are not engaging in constitutionally-protected speech.

Most controversial is the idea that, as content creators and curators, Internet service providers are speakers with First Amendment rights. The FCC’s 2015 Open Internet Order designates ISPs as common carriers and generally prohibits ISPs from blocking Internet content. The agency asserts outright that ISPs “are not speakers.” These Title II rules may be struck down on procedural grounds, but the First Amendment issues pose a significant threat to the new rules.

ISPs are Speakers
Courts and Congress, as explained below, have long recognized that ISPs possess editorial discretion. Extensive ISP filtering was much more common in the 1990s but still exists today. Take JNet and DNet. These ISPs block large portions of Internet content that may violate religious principles. They also block neutral services like gaming and video if the subscriber wishes. JNet offers several services, including DSL Internet access, and markets itself to religious Jews. It is server-based (not client-based) and offers several types of filters, including application-based blocking, blacklists, and whitelists. Similarly, DNet, targeted mostly to Christian families in the Carolinas, offers DSL and wireless server-based filtering of content like pornography and erotic material. A strict no-blocking rule on the “last mile” access connection, which most net neutrality proponents want enforced, would prohibit these types of services. Continue reading →

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