ahdout marketplace of ideas or commerce

8/6/2019 Ahdout Marketplace of Ideas or Commerce

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Melody Ahdout

THE FUTURE OF THE INTERNET: MARKETPLACE OF IDEAS OR COMMERCE?

Introduction

Virtually every means of communicating ideas in today's mass society requires theexpenditure of money. 1

Common carriage is the practical analog to the First Amendment for electronic speechover privately-owned networks, where the First Amendment does not necessarily govern

directly.2

In November of 2006, Netcraft, a company whose mission is to track the number of

websites on the Internet, announced that the Internet had reached a milestone: it now housed one

hundred million websites. 3 Since November, Netcraft announced that in March, the Internet was

up to 110,460,149 and counting. 4 If one considers the number of unique web pages contained on

each site, the number of actual pages on the Internet easily surpasses several billion.

The significance of these statistics is that these websites do not merely belong to Fortune

500 corporations or public entities with significant financial means or political power. Rather,

the majority of websites on the Internet are set up by private individuals, whose voices, through

1 Buckley v. Valeo, 424 U.S. 1, 19 (1976)

2 Noam, Eli M., Testimony at Networks of the Future en banc hearing, May 1, 1991.

3November 2006 Web Server Survey, at

http://news.netcraft.com/archives/2006/11/01/november_2006_web_server_survey.html (last visited March 15,

2007)

4February 2007 Web Server Survey, at http://news.netcraft.com/archives/web_server_survey.html (Last visited

March 21, 2007)


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both anonymous speech 11 and free association 12, two conceptions that are tenets of American

political history under the First Amendment. Yet, with its highly deferential ruling in National

Cable & Telecommunications Association v. Brand X Internet Services ,13 the Supreme Court has

opened the door for the creation of a new Internet: one predicated on discrimination and

capitalism rather than equal opportunity and freedom.

In Brand X, a small Internet Service Provider wanted the right to use the coaxial cable

network of a large cable company in order to provide its services to the public. When the

network provider refused, Brand X sued, and when the case reached the Supreme Court,

ultimately lost. Cable companies providing Internet access therefore earned the right to excludeanyone and anything they wanted to from their networks, which was unprecedented in the

history of the Internet.

Historically, access to the Internet access depended upon a network connection provided

through existing telephone lines in the form of a narrow-band dial-up connection. 14 Under this

11 McIntyre v. Ohio Elections Comm'n , 514 U.S. 334 (1995) (arguing, protections for anonymous speech are vital to

democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views . . .

Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights,

and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an

intolerant society.)

12 NAACP v. Alabama , 357 U.S. 449 (1958) (stating, It is beyond debate that freedom to engage in association for

the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of

the Fourteenth Amendment, which embraces freedom of speech.)13 Natl Cable & Telecomms. Assn v. Brand X Internet Servs , 543 U.S. 1185

14 See http://searchmobilecomputing.techtarget.com/sDefinition/0,,sid40_gci212622,00.html (Last visited May 14,

2007). Generally, narrowband describes telecommunication that carries voice information in a narrow band of

frequencies. More specifically, the term has been used to describe a specific frequency range set aside by the U.S.


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regime, the legislature had the right to impose common carrier rules upon networks, which

served to extend First Amendment obligations to the telephone companies. Therefore, Internet

access providers, in this case the telephone companies, had to provide access to everyone

equally, including to competing Internet Service Providers. Yet, with the promulgation of

broadband high-speed Internet service, 15 which no longer exclusively relies on telephone lines,

existing common carriage rules no longer technically seem applicable. Therefore, unless the

Legislature enacts new laws specifically addressing Internet access over non-traditional

networks, an extension of common carriage principles is the most significant tool available to

prevent discrimination.Today it is common for a single medium to provide telephone services, Internet access,

and television services: a phenomenon referred to as communication convergence. Therefore,

existing definitions resulting from legislative line drawing, such as the information service

provider vs. telecommunications service provider dichotomy in the Telecommunications Act

of 1996, are becoming obsolete. 16 Unless a company qualifies as a telecommunications service

Federal Communications Commission for mobile or radio services, including paging systems, from 50 cps to 64

Kbps.

15 See http://www.fcc.gov/broadband/, (Last visited April 25, 2007). The term broadband refers to advanced

communications systems capable of providing high-speed transmission of services such as data, voice, and video

over the Internet and other networks. Transmission is provided by a wide range of technologies, including digital

subscriber line and fiber optic cable, coaxial cable, wireless technology, and satellite. Broadband platforms make

possible the convergence of voice, video, and data services onto a single network. See also In re Inquiry

Concerning Deployment of Advanced Telecomm. Capability to All Americans in a Reasonable and Timely Fashion,

Report, 14 FCC Rcd. 2398, 2406, para. 20 (1999). The FCC has defined broadband as internet access at speeds of

at least 200 kilobits/second (kbps).

16 Telecommunications Act of 1996, Pub. LA. No. 104-104, 110 Stat. 56 (1996)


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provider, the legislature may not elect to impose common carriage principles, which currently

remain the strongest shield against discrimination on the Internet.

These obsolete classifications lead to the Supreme Courts problematic holding in

National Cable and Telecommunications Association v. Brand X . In Brand X , the Supreme

Court upheld the FCCs classification of broadband service as an information service rather than

a telecommunications service. 17 Therefore, the Supreme Court supported the FCCs finding that

the government may not impose common carriage requirements upon the networks that control

the future of the Internet. Without common carrier obligations, broadband carriers are free to

discriminate rather than maintain neutral networks, unless Congress enacts new legislation.For example, a broadband carrier, such as AT&T, can require corporations such as

Google to pay before loading the google.com domain, or can even divert traffic away from the

google.com domain to one of AT&Ts own affiliated websites. While Google Corporation may

have the capital to remain competitive on the Internet, smaller figures such as the college blogger

may not; thus, turning the Internet, one of the greatest vehicles for free speech into a forum

skewed by capitalism, where only the wealthy have a voice.

Broadband carriers also have the capability to discriminate in terms of the type of access

it offers end users, i.e. by instituting tiered pricing that attaches a premium to faster and complete

access to the Internet. Therefore, this debate affects three distinctive groups: the providers of

Internet content and applications, such as Google; the end-users of that content (some of whom

are also providers at the same time, such as bloggers); and the owners of the networks, the

electronic pipes that connect users and content providers, such as AT&T.

17 Brand X , 543 U.S. 1185


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Those in favor of maintaining a non-discriminatory Internet 18 governed by common

carriage principles, a concept currently referred to as network neutrality, 19 argue that common

carriage principles should govern broadband. Since the First Amendment is a compelling state

interest, it should act as a sword against discrimination by private broadband network

providers. 20 Opponents of network neutrality 21 argue that government-mandated neutrality is

equivalent to compelled speech, and thus the First Amendment rights of the broadband networks

should serve as a shield against any potential legislation. Furthermore, opponents argue that

neutrality stifles innovation because it lessons the network providers incentive to invest in new

infrastructure at a time where the convergence of communication technologies has made newinfrastructure essential.

18 See House Rejects Net Neutrality, at http://www.commondreams.org/views06/0609-24.htm (Last viewed May 12,

2007). Network neutrality is supported by a coalition of unlikely bed fellows, including liberal groups such as the

ACLU as well as conservative groups such as the Christian Coalition. Network neutrality divides along party lines,

with Democrats in favor and most Republicans, who prefer deregulation, against.

19 See Network Neutrality FAQ, http://timwu.org/network_neutrality.html (Last viewed March 20, 2007). Tim Wu,

a leading proponent of network neutrality, offers a novel interpretation of the traditional common carriage principle

of non-discrimination, when he defines network neutrality as: Network neutrality is best defined as a network

design principle. The idea is that a maximally useful public information network aspires to treat all content, sites,

and platforms equally. This allows the network to carry every form of information and support every kind of

application.20 The sword and shield analogy is drawn from the law review article, Harold Feld, Whose Line Is It Anyway? The

First Amendment and Cable Open Access, 8 CommLaw Conspectus 23, 2000

21 The primary opponents of mandated network neutrality are a coalition of broadband carriers, including AT&T,

Verizon, and Time Warner Cable.


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power of the thought to get itself accepted in the competition of the market. 23 As discussed by

Justice Brennan, the First Amendment provides that, debate on public issues should be

uninhibited, robust, and wide-open. 24 Furthermore, as described by Judge Learned Hand, the

First Amendment "presupposes that right conclusions are more likely to be gathered out of a

multitude of tongues, than through any kind of authoritative selection. 25 Justice Kennedy

echoed the importance of preserving a diversity of sources when it stated, assuring that the

public has access to a multiplicity of information sources is a governmental purpose of the

highest order, for it promotes values central to the First Amendment. 26 Therefore, traditional

First Amendment jurisprudence highly favors the free flow of ideas, and frowns upon compelledspeech, particularly by the government.

Common Carriage: First Amendment Requirements Imposed Upon Private Actors

The Court has not interpreted the First Amendment to stand for the proposition that every

speaker should enjoy protection of equal force. The Court affords various levels of protection to

speakers who it has classified as the press, broadcasters, and common carriers. 27 Whereas the

23 Abrams v. United States, 250 U.S. 616,630 (1919) that (Holmes, J., dissenting)24 New York Times v. Sullivan , 376 U.S. 254 (1964)

25 U.S. v. Associated Press , 52 F. Supp. 362, 372 (S.D.N.Y. 1943), affd 326 U.S. 1 (1945)

26 Turner Broadcasting System, Inc. v. F.C.C ., 512 U.S. 622, 664

27Mario L. Baeza, Review: Safeguarding the First Amendment in the Telecommunications Era, Harvard Law

Review, Vol. 97 No. 2 (Dec., 1983), 584-596, 585 (The print model derives from judicial interpretations of the first

amendment. The common carrier out of Title II of the Communications Act of 1934 (the Act), 47 U.S.C. ss 201-224

(1976 & Supp. V 1981). The broadcast model stems from title III of the Act, 47 U.S.C. ss 301-399b (1976 & Supp.

V 1981))


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Court has offered strong protections to members of the press, it has assigned weaker First

Amendment protections to broadcasters and common carriers. 28

Common carriage has a strong historical precedent dating back to England and gives the

government the ability to regulate private individuals who served the public. 29 In the United

States, the Court initially placed common carrier obligations on the railroad companies in order

to prevent monopolies and secure access for citizens to an industry that clearly affected the

public interest 30 and was essential. 31 Therefore, at common law, the Court treated railroad

companies as common carriers and thus railroads had an obligation to provide services at a

reasonable price.32

With the application of common carriage principles to communicationtechnologies, in addition to the reasonableness of price, non-discrimination became an important

tenet of common carriage. 33

In the 19 th century, Congress imposed common carrier restrictions on telegraph

companies in exchange for permission and support to lay necessary national infrastructure. Even

at common law, prior to the enactment of any specific statutes, the Court viewed telegraph

28 See discussion infra

29 James B. Spetna, A Common Carrier Approach the Internet Interconnection, 54 Fed. Comm. L.J. 225, 252 (2002)

30 See Munn v. Illinois , 94 U.S. 113 (876)

31 Spetna, 54 Fed. Comm. L.J. at 252

32 Munn, 94 U.S. at 122 (Whenever any person pursues a public calling, and sustains such relations to the public

that the people must of necessity deal with him, and are under a moral duress to submit to his terms if he is

unrestrained by law, then, in order to prevent extortion and an abuse of his position, the price he may charge for his

services may be regulated by law citing Commonwealth v. Duane , 98 Mass. 1 (Mass. 1867))

33 Speta , at 258 (At common law, the nondiscrimination obligation was relatively weak. Courts repeatedly held

that there was no breach of the nondiscrimination obligation if two people were charged different prices for the same

service.)


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companies as analogous to the owners of railroads and thus required that they offer telegraph

services while adhering to common carriage principles. 34 In 1910, Congress passed the Mann-

Elkins Act, which gave the Interstate Commerce Commission jurisdiction over communications

and extended common carrier obligations to the telephone companies. 35 In 1934, Congress

passed the Communications Act, which clarified common carrier obligations and created the

Federal Communication Committee to govern communications media such as the telephone,

telegraph and radio. Title II of the Act 36 maintained the common carriage regulations placed

upon telephone companies by the Mann-Elkins Act. 37 In Title II, common carriers are defined

as, any person engaged as a common carrier for hire, in interstate or foreign communication bywire or radio or in interstate of foreign radio transmission of energy. 38 In order for the

government to be able to impose common carriage obligations, a service must be offered, on

demand, to the public at large or to a group of people generally, and the carrier must hold

himself out as ready to engage in the transportation of goods for hire as a business, not as a

casual occupation... 39

34 See 74 Am. Jur. 2d Telecommunications s 4 (2007) (A telegraph carrier is a public carrier of intelligence, with

rights and duties analogous to those of a public carrier of goods or passengers) , see also Western Union Telegraph

Co. v. Call Publishing Co., 181 U.S. 92, 98 (1901)

35 See Scripps-Howard Radio v. F.C.C. , 316 U.S. 4, 6 (1942) see also Frank Haigh Dixon, The Mann-Elkins Act,

Amending the Act to Regulate Commerce, 24 The Quarterly Journal of Economics (Q. J. Econ ) Vol. 24, No. 4. pp.

593-633 (1910)

361934 Communications Act, Title II, codified as 47 U.S.C. 151, ss 201-221

37 47 U.S.C. 151 (1934)

38 47 U.S.C. 153(h)

39 Eli M. Noam, Beyond Liberalization II: The Impending Doom of Common Carriage, 18 Telecomm. Pol'y 435,

452, (1994) (citing J. Story, Law of Bailments, section 495 (1832). 18 Telecomm. Pol'y 435, 452 (1994)


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There are a number of restrictions placed upon common carriers; 40 however, for the

purpose of this paper, I will focus on the prohibition against discrimination when providing

services. Common carriers may not make or give any undue or unreasonable preference or

advantage to any person, class of persons, or locality, or to subject any person, class of persons,

or locality to any undue or unreasonable prejudice or disadvantage. 41 The rationale behind

regulating the telegraph companies and telephone companies was that these companies provide

the infrastructure for an essential utility. Furthermore, both the telephone and the telegraph acted

as a conduit for the transportation of a message, rather than generating or having control over the

message users sent over the network.In 1966, a novel issue prompted the FCC to delve into a comprehensive analysis of

computers and their functions. The FCC inquiries were called The Computer Inquiries and

sought to address the fact that traditional communication networks, such as telephones, were

being facilitated in part by computers. 42 Computers at this point were completely unregulated

since the FCC had exempted computer networks from common carriage obligations in order to

spur innovation, whereas telephone networks were highly regulated. 43 The Computer Inquiries

set the stage for the Telecommunications Act of 1996 (hereinafter the Act), the first major

amendment to the Communications Act of 1934. 44 The Telecommunications Act of 1996, in

40 47 U.S.C. 219-220

41 Id . at s 202(a)

42 See e.g. In re Of Regulatory And Policy Problems Presented By the Interdependence Of Computer And

Communication Services and Facilities, Docket No. 16979, Final Decision and Order , 28 F.C.C.2d 267, 9 (March

18, 1971)(Computer I)

43 See Computer I, at http://www.cybertelecom.org/ci/ci.htm (Last viewed May 1, 2007)

44 Telecommunications Act of 1996, Pub. LA. No. 104-104, 110 Stat. 56 (1996)


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attempt to resolve the issues revealed by the Computer Inquiries, distinguished

telecommunication services from information services. Under the Act, the term

telecommunications service means the offering of telecommunications or a fee directly to the

public or to such classes of users as to be effectively available directly to the public regardless of

the facilities used. 45 The Act defines a telecommunications carrier as any provider of

telecommunications services. Furthermore, the Act states, a telecommunications carrier shall

be treated as a common carrier under this Act only to the extent that it is engaged in providing

telecommunications services. 46 In contrast, the Act defines an information service as the

offering of a capability for generating, acquiring, storing, transforming, processing, retrieving,utilizing, or making available information via telecommunications, and includes electronic

publishing, but does not include any use of any such capability for the management, control, or

operation of a telecommunications system or the management of a telecommunications

service. 47 Information services are not subject to common carrier obligations under the Act. The

Act also regulates cable, which defines a cable service as the one-way transmission to

subscribers of (i) video programming, or (ii) other programming service, and subscriber

interaction, if any, which is required for the selection or use of such video programming or other

programming service. 48

Several other communications mediums, like information services, are exempt from

common carrier obligations under the Telecommunications Act of 1996. From example, cable

45 47 U.S.C. at 50

46 47 U.S.C. 153

47 Id.

48 47 U.S.C. 522


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companies are exempt from common carrier obligations. 49 Similarly, as described by the Court

in U.S. v. Radio Corp. of America , radio broadcasters, including television broadcasters, are not

included in the definition of common carriers in section 3(h) of the Communications Act, 47

U.S.C. s 153(h). 50 Although these classifications and exemptions to common carriage may have

been relevant in 1996, the proliferation of the Internet and the various modes of networks

designed to provide Internet access have changed the landscape of communications in the United

States.

Today, because of technological convergence, cable lines are no longer exclusively

providing television services, just as telephone lines are no longer exclusively used for providingtelephone services. Furthermore, following the Courts ruling in Brand X , anytime a company is

offering a mixed service - telecommunications as well as information services - the company will

be exempt from common carrier obligations. Following this rule, all broadband Internet

services, whether through DSL, which runs on existing telephone lines, or cable broadband,

which runs on cable lines, will be exempt from common carrier obligations.

Unclear Legislation Leads to Inconsistent Holdings

The combination of technological convergence, an antiquated federal legislative regime,

and a lack of response by the FCC led to a number of conflicting opinions in the Federal courts

with regard to the status of broadband cable Internet service. In Gulf Power Company v. FCC ,51

the Eleventh Circuit concluded that cable Internet service is an information service. The case was

49 Id. at 541(d).

50 358 U.S. 334 (1959)

51 208 F.3d 1263 (11th Cir. 2000).


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brought by several power companies that contested the FCCs authority to set the rents payable

to power companies by cable companies that wished to attach poles on existing power lines in

order to provide Internet Services under the provisions of the 1996 Pole Attachment Act .52 The

Court held that, Congress, in the 1996 Act, authorized the FCC to develop rent formulas for

attachments providing cable and telecommunications services. Internet service does not meet the

definition of either a cable service or a telecommunications service. Therefore, the 1996 Act does

not authorize the FCC to regulate pole attachments for Internet service. 53 In reaching its

holding the Court relied upon the FCCs own classifications, when it found that, the FCC, itself,

has defined the Internet as an information service.54

In contrast, in MediaOne Group v. County of Henrico, Virginia the federal District Court

for the Eastern District of Virginia classified cable Internet access as a cable service. 55 In this

case, AT&T acquired MediaOne Group, Inc., which had a cable franchise in Henrico County,

Virginia. In approving the transfer of control of the franchise, the Henrico County Board of

Supervisors required that MediaOne provide any requesting Internet Service Provider with

access to its cable modem platform. AT&T and MediaOne sued the County in federal court,

arguing that federal law preempted the open access provision. The Court agreed and struck down

Henrico Countys attempt to impose forced access requirements on the transfer from MediaOne

52 47 U.S.C. 224(b)(1) (Supp. II 1996)

53 208 F.3d 1263, at 1278 (11th Cir. 2000).

54 208 F.3d 1263, 1277 citing In Re Fed.-State Joint Bd. on Universal Serv., 13 F.C.C.R. 11501 p. 66, 1998 WL

166178 (Internet service providers themselves provide information services.... ).

55 97 F. Supp. 2d 712 (E.D. Va. 2000).


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to AT&T because it felt a forced access requirement violated Section 621(c) of the Cable Act, 47

U.S.C. 541(c). 56

In AT&T v. City of Portland , the Ninth Circuit determined that cable Internet access was a

telecommunications service. 57 By classifying cable Internet service as a telecommunications

service, the Court denied the local franchising board the ability to condition the giving of a

license on AT&Ts adoption of open access requirements. 58 The Ninth Circuit held that,

Subsection 541(b)(3) prohibits a franchising authority from regulating cable broadband Internet

access, because the transmission of Internet service to subscribers over cable broadband facilities

is a telecommunications service under the Communications Act. Therefore, Portland may notcondition the transfer of the cable franchise on nondiscriminatory access to AT&T's cable

broadband network. 59 These conflicting classifications indicate the impropriety of continuing to

regulate Internet access by relying upon the definitions of the 1996 Telecommunications Act.

The End of the Non-Discrimination Regime: Brand X

Conflicting classifications of broadband cable Internet networks were put to rest by the

Supreme Courts holding in National Cable and Telecommunications Association v. Brand X .60

This case came to the Supreme Court on appeal from the 9th Circuit. The case addressed the

appropriate classification of cable Internet service providers with respect to the Communications

56 47 U.S.C. 541(c). The Cable Act precluded local and state authorities from imposing common carrier regulations,

such as forced access requirements on cable system.57 216 F.3d 871 (9th Cir. 2000).

58 The open access requirement would have forced AT&T to allow competing ISPs access to its infrastructure.

59 AT&T Corp. v. City of Portland , 216 F.3d 871, 880 (9th Cir. 2000)

60 Natl Cable & Telecomms. Assn v. Brand X Internet Servs , 543 U.S. 1185


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Act of 1934 and the Telecommunications Act of 1996. The 9th Circuit, bound by its holding in

AT&T v. Portland 61, held that cable Internet is a telecommunications service, 62 a holding which

conflicted with the FCCs declaratory ruling that cable modem service providers provided

information services rather than telecommunications services. 63 The 9th Circuits holding would

have made members of the National Cable and Telecommunications Association susceptible to

common carrier principles, therefore requiring that they give access to Internet Service Providers

such as Brand X .

In its review, Supreme Court applied the Chevron formulation, 64 which offers guidance

when dealing with the decisions of an administrative agency, and gave the FCC completedeference. By deferring to the FCC, the Supreme Court avoided answering a critical question for

the future of the Internet: Should cable Internet services be classified as telecommunications

services or information services? The implication is that if cable Internet service is classified

61 AT&T Corp. v. City of Portland, 216 F.3d 871 (9th Cir. 2000)

62 Brand X Internet Services v. F.C.C., 345 F.3d 1120 (9th Cir. 2003)

63 In re Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities , 17 FCC Rcd. 4798,

48024803, p. 9 (2002)

64 Chevron U.S.A., Inc. v. Natural Resources Defense Council , 467 U.S. 837, 843 (1984) (Chevron Formulation:

When a court reviews an agency's construction of the statute which it administers, it is confronted with two

questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the

intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed

the precise question at issue, the court does not simply impose its own construction on the statute, as would be

necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect

to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction

of the statute.)


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as a telecommunications service then common-carrier obligations become applicable. If cable

Internet services are considered an information service, common carriage principles such as non-

discrimination do not apply.

The Court looked to the Computer Inquiries and the Telecommunications Act of 1996 for

guidance and determined that the FCC deserved complete deference per Chevron .

Unfortunately, the provisions the Court relied upon are not a fair classification of the Internet as

it exists today. The definition of information service, which is adopted by the FCC, does not

represent how the Internet actually works. Information services are supposed to be processes for

generating, acquiring, storing, transforming, processing, retrieving, utilizing, or makingavailable information via telecommunications .65 The FCC reasoned that cable modem service is

an information service because it gives people the ability to manipulate information using the

Internet across high-speed telecommunications. But it is oftentimes the Internet Service Provider

running on the broadband connection that allows people to reach online information and

manipulate it; not the network itself.

Justice Scalias dissent, joined by Justices Ginsburg and Souter, reveals the problems

inherent in the majoritys reasoning and suggests that blind deference to the FCC per Chevron

was an inappropriate course of action. Rather than immersing himself in outdated legislative

definitions, Scalia openly expressed his conviction that the FCC had overstepped its bounds.

The Federal Communications Commission (FCC or Commission) has once again attempted to

concoct a whole new regime of regulation (or of free-market competition) under the guise of

statutory construction. 66 Scalia recognized that the existing legislation and case law offer no

65 47 U.S.C. 153

66 545 U.S. at 1005.


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basis for dealing with the classification of broadband Internet services. Instead of focusing on

the primary characteristic of broadband Internet, the offering of access, the FCC instead focused

on the ancillary capabilities of cable service. For purposes of classifying what the cable

company does, the Commission (with the Courts approval) puts all the emphasis on the rest of

the package (the additional applications or functions). 67 Therefore, the FCC chose the

information services classification rather than the telecommunication services classification.

At the end of his vehemently sarcastic dissent, Justice Scalia closed by stating, After all is said

and done, after all the regulatory cant has been translated, and the smoke of agency expertise

blown away, it remains perfectly clear that someone who sells cable-modem service is offeringtelecommunications. 68

Broadband Carriers: Speakers Protected by the First Amendment?

It is important to note that common carriage exists as an exception to traditional first

amendment principles of free speech and no compelled speech. When common carriage

requirements are mett, the government has the choice, but not forced, to enforce non-

discrimination restrictions. In fact, the government is often very reluctant to impose the

restrictions of common carriage because they conflict with the constitutional rights of those

providing services.

While proponents of network neutrality argue that common carriage principles are

applicable and support the imposition of neutrality requirements on broadband carriers,

opponents argue that any non-discrimination requirements violate of the First Amendment rights

67 Id. at 1006

68 Id. at 1014.


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of the carriers themselves. Opponents of network neutrality further argue that a non-

discrimination regime equates compelled speech, because it forces broadband carriers to promote

views that they may not agree with. However, the Court has established strong legal precedent

in the communications arena, which suggests that broadband carriers may not assert their rights

as speakers the same way that other communication mediums, such as the press, could.

In the context of the press, regulation may interfere with publishers editorial control

and judgment in deciding what to report and what not to report. 69 In contrast, broadband

carriers merely transmit content; they do not generally exercise any editorial control. Even if

carriers were free to discriminate (as they now are, following Brand X ) the type of discriminationthat would take place would not necessary reflect the personal preferences of the carrier as much

as it would reflect capitalistic preferences or concerns over bandwidth. Furthermore, there is a

long-standing tradition of regulation by the Court in the broadcasting arena due to the scarcity of

the electromagnetic spectrum. 70

In Red Lion Broadcasting Co. v. FCC , the Supreme Court upheld the constitutionality of

the Fairness Doctrine, despite the challenge that it violated the First Amendment rights of the

radio operators. 71 The Fairness Doctrine required that broadcasters present issues of public

importance on the radio in a balanced fashion, giving equal time to controversial views and the

views of the majority. The Court in Red Lion , stated, the people as a whole retain their interest

69 See The Message in the Medium: The First Amendment on the Information Superhighway, 107 Harv. L. Rev.

1062, 1071 (1994) citing Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 247 - 58 (1978) (holding that

Floridas right of rely statute, which guaranteed political candidates space to respond to criticism in newspapers,

violated the First Amendment).

70 See National Broadcasting Co . v. U.S., 319 U.S. 190 (1943)

71 395 U.S. 367 (1969)


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the Court to secure the diversity of voices articulated by Holmes in his marketplace of ideas

conception, and thus highlights the policy behind the adoption of a non-discriminatory regime

for broadband Internet services.

In Turner Broadcasting System v. FCC , the Supreme Court held that the must carry

provisions of the 1992 Cable Television Consumer Protection and Competition Act, which

required cable television systems to set aside some of their channels for local broadcast

television, did not violate the First Amendment rights of the cable broadcasters. 74 The Court

held that there was a, governmental purpose of the highest order in ensuring public access to a

multiplicity of information sources, and the Government has an interest in eliminating restraintson fair competition even when the regulated parties are engaged in protected expressive

activity. 75 Therefore, throughout the Courts regulation of communications media, the

governments interest in promoting the preservation of the marketplace of ideas has allowed for

the regulation of carriers, despite their potential first amendment challenges.

II. The Debate: The First Amendment or Economics?

Despite the strength of the First Amendment arguments in support of network neutrality,

opponents often rely upon economic arguments for opposing government regulation in this

arena. Opponents of network neutrality allege that economic forces, such as competition, and

regulation in the form of antitrust, will suffice rather than actual neutrality provisions. In

considering the opposing views, it is important to note what it is at stake and the evidence of

discrimination by broadband carriers that has already transpired.

74 520 U.S. 180 (1997)

75 520 U.S. at 188


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Various executives at broadband network companies have already expressed their

intentions to create tiered access to the Internet that would restricts fast lanes to those willing and

able to pay higher premiums. For example, Ed Whiteacre, the CEO of AT&T, candidly stated

with regard to companies such as Vonage, a company which provides Voice Over IP services, 76

How do you think theyre going to get to customers? Through a broadband pipe. Cablecompanies have them. We have them. Now what they would like to do is use my pipesfree, but I aint going to let them do that because we have spent this capital and we haveto have a return on it. So theres going to have to be some mechanism for these peoplewho use these pipes to pay for the portion theyre using. Why should they be allowed touse my pipes? The Internet cant be free in that sense, because we and the cablecompanies have made an investment and for a Google or Yahoo! or Vonage or anybodyto expect to use these pipes [for] free is nuts! 77

Mr. Whiteacres revealing statements were at least partially responsible for bringing the

network neutrality debate to the national floor. 78 However, he is not alone in his sentiments.

Other carriers have already begun discriminating in their service offerings. For example,

Cingular Wireless, which AT&T owns, will not allow customers to pay bills using the Pay Pal

service because AT&T has a relationship with a Pay Pal competitor. 79

In the Madison River Communications case, a local broadband carrier (Madison River

Communications) actually blocked paying users from accessing phone services through the

76 Wikipedia, VoIP, http://en.wikipedia.org/wiki/Voice_over_IP (last viewed March 23, 2007) (Voice over Internet

Protocol, also called VoIP, IP Telephony, Internet telephony, Broadband telephony, Broadband Phone and Voice

over Broadband is the routing of voice conversations over the Internet or through any other IP-based network.

77At SBC, Its All About Scale and Scope, at http://www.freepress.net/news/14959 (last viewed February 27,

2007)

78 Net Neutrality Spoils Telecom Reform, at http://www.internetnews.com/bus-news/article.php/3649966 (last

viewed March 15, 2007)

79 Cingular Slams the Door on Paypal Competition, http://www.mobilejones.com/archives/2124/ (last viewed March3, 2007)


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network using Vonage, a company that offers VOIP (Voice Over Internet Protocol) services. 80

Although the FCC fined Madison River Communications, the fact that the carrier acted as a

gatekeeper to lawful content/services because it came from a competitor is troubling.

Last April, Time Warner began censoring clients e-mails and filtering any e-mails that

mentioned the website www.dearaol.com, a site that criticized AOLs policies and practices. 81

This practice reveals the most dangerous aspect of a non-neutral Internet: users oftentimes do

not know that the network is censoring them. Neither Time Warner nor AOL informed AOL e-

mail subscribers that they were screening and censoring emails. Rather, only senders attempting

to send the www.dearaol.com link to AOL subscribers received a non-descript error message.82

In each of these instances, broadband network providers have illustrated that they are

ready and willing to discriminate, despite the negative impact on the rights of their users who

were all engaging in lawful activity. Furthermore, these examples reveal an additional problem

with discrimination: it can oftentimes go undetected. Since broadband carriers control the

network, they have the capability to discriminate in many nuanced ways, far subtler than

blocking an entire website or service, which the user may never even recognize. Over time, this

kind of discrimination may effect the ways in which the network develops, resulting in

discrimination that becomes ingrained and fair more difficult to remedy.

Network Neutrality Proponents: Non-Discrimination as the Key to the Future

80 Telco Agrees to Stop Blocking VoIP Calls, at http://news.com.com/Telco+agrees+to+stop+blocking+VoIP+calls/2100-7352_3-5598633.html (last visited March13, 2007)81 AOL Censors Opposition Cite, at http://www.freepress.net/news/14960 (last viewed March 3, 2007)82 Id.


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Tim Wu, a law professor at Columbia, is one of the most vocal advocates of network

neutrality in the legal community. 83 In fact, he is often the person credited with coining the

phrase network neutrality, a phrase, which has taken the place of its predecessor, open access.

Wu suggests that the primary goal of telecommunications reform today should be achieving anti-

discrimination norms in order to promote innovation. 84 I see the regulators task as trying, as

best as possible, to foster the vibrancy and health of the part of the nations public infrastructure

called its information networks. Information networks make possible a large range of activities

commercial politicaland purely personal A chief goal of telecommunications policy

according to this view is to maximize the value of the information networks as a catalyst for these activities. 85

Wu relies upon the strong tradition of common carriage principles and non-

discrimination in American jurisprudence in order to suggest the prudence of a mandated

network neutrality regime. 86 Wu also recognizes that perhaps specific zones of discrimination

may be appropriate, and that absolute neutrality imposes unrealistic limitations on the network,

83 Wikipedia, Tim Wu, http://en.wikipedia.org/wiki/Tim_Wu (last viewed April 30, 2007) (Tim Wu is a professor

at Columbia Law School and a writer for Slate Magazine. He is best known for popularizing the concept of network

neutrality. He has a well-known series of articles on network neutrality, and is often credited with coining the term.

For his work in this area, Professor Wu was named one of Scientific Americans 50 people of the year in 2006.)

84 Tim Wu, Why Have a Telecommunications Law?: Anti-Discrimination Norms in Communications, 5 J. on

Telecom & High Tech L., 15, 16, 2006

85 Id . at 26

86 Tim Wu, Network Neutrality: Competition, Innovation, and Nondiscriminatory Access,. at SSRN:

http://ssrn.com/abstract=903118


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i.e. by preventing quality of service inspections or security checks. 87 Nonetheless, Wu remains

open to the idealistic concept of absolute neutrality, which would prevent bit discrimination on

any level. 88

While Wu focuses on non-discrimination as a catalyst for innovation, Bill Herman

focuses squarely on the First Amendment values at stake in the debate. 89 First Amendment

values are best upheld by ensuring media diversity-not merely content diversity, but a diversity

of stakeholders who have editorial control over that content. This is especially true in an era

when gigantic firms with large shares of media markets can dictate the contents of our

information ecosystem.90

Herman cites Edwin Baker 91

for his proposition that the Constitutionrequires state intervention when state-created telecommunications monopolies obstruct the

speech of their customers. 92 Due to the governments recent deregulatory trend, the once state-

created telecommunications monopolies such as AT&T have morphed into mega-corporations

that now control services relevant to converging technologies including television, the telephone

and the Internet.

Therefore, the convergence of media and the mergers of major communications

conglomerates have only strengthened his argument that state action is required in order to

87 Tim Wu, Why Have a Telecommunications Law?: Anti-Discrimination Norms in Communications 5 J. on

Telecom & High Tech L., 15, 25 (2006)

88 Id. at. 40

89Bill Herman, Opening Bottlenecks: On Behalf of Mandated Network Neutrality, 59 Fed. Comm. L.J. 103, 112,

2006

90 Id. at 112,113

91 C. Edwin Baker, Merging Phone and Cable, 17 Hastings Comm. & Ent. L.J. 97, 123, 1994

92 Herman at 113


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protect the speech of customers. Barbara van Schewick offers an interesting economic analysis

of network neutrality, wherein she recognizes both the economic costs and benefits of a

mandated network neutrality regime. 93 Schewick argues that there are three questions one must

ask to ask to make the case for network neutrality: first, is there a threat of discrimination,

second, if there is, what is the impact, and third, what is the impact of regulation on social

welfare. She argues that network providers have a well-documented incentive to discriminate,

and that such discrimination lessons innovation. Therefore, despite the costs associated with

regulations, the benefits of network neutrality far outweigh them. 94

Network Neutrality Opponents: Hands off the Internet

Opponents of network neutrality focus primarily on their desire to keep the government

away from regulation of the Internet. Christopher Yoo, a leading opponent of network neutrality

requirements suggests that the proper focus is on the economics of congestion. 95 He argues

that allowing networks to discriminate based on bandwidth usage, rather than requiring universal

access at a universal price, would remedy the market failures inherent in the Internet today. 96

Yoo argues that currently, the Internet resembles the tragedy of the commons in that flat-rate

pricing results in excessive consumption of club resources, which arises because the congestion

93 Barbara van Schewick, Towards an Economic Framework for Network Neutrality Regulation, 5 J on Telecom &

High Tech L, Vol. 5, 2007

94 Id. 95 Christopher S. Yoo, Network Neutrality and the Economics of Congestion, 94 Geo. L.J. 1847 (2006)

96 Id.


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costs represent a negative externality that individual club members responsible for causing the

congestion are not forced to bear. 97

Yoo therefore believes that the benefit of discrimination including its remedial effect on

market failure outweighs any potential First Amendment issues. 98 Whereas Wu argues that

network neutrality promotes innovation, Yoo argues that it stifles innovation. Another scholar,

William D. Rahm, suggests a substantive equality regime for broadband applications, which

relies upon the market rather than regulation. 99 Rahm highlights the impropriety of the absolute

neutrality norm because it places in the hands of an administrative agency the ability to govern

according to a rigid baseline which is unworkable given the intricacies of the Internet.100

It is clear, based on these conflicting analyses, that the regulation of the Internet is much

more complex than only taking into consideration the First Amendment constitutional guarantee

of free speech. Despite the intuitiveness of the economic arguments, opponents of network

neutrality fail to take into consideration the uniqueness of the Internet. It is unlike any other

market and thus traditional market-driven analyses seem somewhat inappropriate. The Internet

is the physical embodiment of a market of ideas. As between the government and private

corporations, I believe that the marketplace of ideas is rightly entrusted to the government.

III: Proposal: An Intellectual Property Approach to Recouping the Cost of Infrastructure

Despite the strength of the economic arguments against network neutrality, the First

97Id. at 1864.

98 Id. at 1874.

99 William D. Rahm, Watching Over the Web: A Substantive Equality Regime for Broadband Applications. 24

Yale J. on Reg. 1 (2007)

100 Id. at 54


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Amendment concerns that have governed United States communications jurisprudence should

remain top priority. Holmes marketplace of ideas must remain intact, in order to preserve our

fundamental right to a culture defined by free expression. The broadband medium represents the

first step thus far towards national high-speed Internet access. It is the speed offered by

broadband carriers that has allowed the Internet to flourish, in that it allows for the exchange of

larger forms of content, such as video and music streaming.

High-speed Internet access has allowed for greater interactivity on the Internet, as well as

more complex and voluminous web pages. Broadband carriers are, to a large extent, responsible

for heightening the potential the Internet has for promoting First Amendment ideals by investingin increasingly expensive infrastructure. Therefore, broadband carriers are entitled to a return on

their investment. However, I argue that allowing broadband carriers to discriminate, for example

by offering full services at a premium and refusing access to competing ISPs, would only

degrade the value of the infrastructure. In the long term, by skewing the marketplace of ideas,

broadband carriers would experience a shift by consumers away from their networks.

Discrimination would hinder innovation, rather than promote it.

Most importantly, it is essential that Congress enact a new over-arching Communications

Act. Congress waited sixty-two years before updating the initial Telecommunications Act of

1934. With the boom in technological innovation in the past ten years, it would be imprudent for

Congress to wait any longer before giving the Telecommunications Act of 1996 a major

overhaul. While Congress works towards achieving this significant piece of legislation, I

propose that Congress enact specific, more narrow legislation dealing specifically with the issue

at hand of governing broadband carriers.


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I propose that in order to spur innovation and the development of networks that surpass

the capabilities of broadband, i.e. fiber optics, Congress should enact legislation, which would

allow the FCC to give networks some leeway to impose controls on the operation of new

networks for a limited time. For example, if AT&T were to introduce a fiber optic network, in

addition to its current broadband network, AT&T should be able to require websites to pay for

access on the network, and to charge consumers for full access to the Internet at the fastest speed.

Since existing broadband would remain available on a neutral level, the public debate would not

be skewed by the introduction of the additional option of a market-driven Internet. Furthermore,

the FCC would need to require disclosures by the fiber optic network to allow the public to seethe market transactions fueling content.

After a specific time-period, the FCC and Congress would subject this higher speed

Internet to neutrality requirements. In this system, current broadband carriers would have the

opportunity to make a return on their investment in infrastructure for a designated period of time,

just as drug companies are given limited patents to make a return on their investment in research

and development.

In addition, I propose that the government give broadband carriers tax breaks as an

incentive to continue the growth of existing broadband networks so that Americans have access

on a national level. Although currently major metropolitan areas have access to broadband

almost universally, there are still areas in the country that rely on inferior network connections

and therefore cannot fully access the marketplace of ideas on the Internet, if at all.

IV: Conclusion


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While the First Amendment seems primarily concerned with the acts of Congress, private

actors acting in the public interest are equally susceptible to regulation on constitutional grounds.

The broadband market in the United States is controlled by several highly influential mega

corporations, each of whom has spent millions of dollars lobbying the Legislature in order to

avoid mandated network neutrality. Thus far, the Telecommunications Act of 1996 remains

unchanged, and following the decision in Brand X , the broadband carriers seem to be winning

the battle. The question remains, however, at what expense.

While the Legislature fights over the appropriate objectives of telecommunications

reform, the Internet for now remains at the whim of the broadband carriers. Although manydisclaim any intention to discriminate, with the door open, and with the potential subtlety of

discrimination techniques, the First Amendment rights of Internet users and content providers

remain in jeopardy. Before the proliferation of the Internet, the potential of the First Amendment

remained untapped. Ones access to the universal audience was tremendously limited, if at all

possible. The availability of the Internet in its current, neutral state, promoted an explosion of

expression and innovation on an unprecedented scale. This potential should not rest in the hands

of the wealthy and few, such as Verizon and AT&T, who are self-interested and profit-driven

public corporations. Whereas the government appropriately considers the Constitutional

implications of its actions, public corporations, by their very nature, are required to focus on the

bottom line almost exclusively, which may suggest why the activity in the Madison River case

took place to begin with.

In the interim, while the Senate and House of Representatives debate a multitude of

proposed telecommunication reform measures, the FCC has taken some initiative to preserve the

status quo by requiring network neutrality on existing infrastructure for a period two years in the


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recent AT&T and Bell South merger. 101 Regardless of the network neutrality promise, the

merger represents the reemergence of AT&T as the dominant figure in the United States

communications landscape. 102 AT&Ts will therefore undoubtedly again play a significant role

in the shaping of legislation, as it did in the 1970s and 80s. 103 Until the legislature remedies the

antiquated legislation that currently governs communications media, it is up to the Courts to

move away from deferential decisions such as Brand X towards more proactive decisions, which

take into consideration the constitutional issues at stake rather than focusing on antiquated

definitions. The Court and Congress should not sacrifice the Internet to mega corporations under

the guise of deregulation and statutory construction. Instead, by continuing common carrier traditions and embracing a non-discriminatory regime, the Court and Congress can maintain the

Internets role as an egalitarian marketplace of ideas as opposed to an exclusive forum for the

wealthy voices that appeal to broadband carriers.

101 FCC Approves AT&T/BellSouth Merger, at http://www.internetnews.com/bus-news/article.php/3651386 (last

visited March 29, 2007)

102 Id. The FCC's approval helps make AT&T the largest provider of landlines in the U.S., with roughly 70

million customers across 22 states. With 9.1 million broadband customers, the combined company has vaulted into

the No. 2 slot in high-speed Internet in the U.S. behind cable provider Comcast, which counts about 9.3 million

customers. Cingular, the wireless company AT&T and BellSouth manage, counts about 57.3 million subscribers.

103 Ma Bell is Back: Should You be Afraid?, at http://www.slate.com/id/2156918/ (last visited March 29, 2007)

ahdout marketplace of ideas or commerce

Documents