FCC: ISPs can't use First Amendment as shield from net neutrality

By Matthew Lasar

"The First Amendment protects the right not just to decide what to say, but how to say it." So declaredNational Cable and Telecommunications Association CEO Kyle McSlarrow in December of 2009. The subject at a Media Institute conference was whether the Federal Communications Commission should be allowed to restrict priority access deals between ISPs and content makers.

"To tell a new entrant or an existing content provider that it cannot enter into arrangements with an ISP for unique prioritization or quality of service enhancements that might enable it to enter the marketplace and have its voice heard along with those of established competitors interferes with that provider's speech rights in a way that should immediately invite First Amendment scrutiny," McSlarrow warned.

We're going to assume that the cable and telco ISPs are a little more concerned about their own alleged constitutional right to offer priority access deals than those of edge providers to buy them. But surely one of the most interesting components of the net neutrality debate is the question of how Amendment One comes into play. Don't forget, McSlarrow noted, "by its plain terms and history, the First Amendment is a limitation on government power, not an empowerment of government."

Now the matter is settled for the moment. In the FCC's net neutrality Order, released in full on Friday, the agency rejected the notion that ISPs enjoy First Amendment protection from its open Internet rules. Here's how the debate played out.

Are we cable TV?

Over the last two years of deliberation about net neutrality, the big ISPs sometimes compared their broadband transmission services to cable television. They did so because a crucial Supreme Court decision upheld the idea that pay-TV providers enjoy First Amendment protections as "speakers." That 1994 case was Turner Broadcasting System v FCC.

Following the passage of the 1992 Cable Television Consumer Protection and Competition Act, a host of cable providers took strong exception to the "must carry" provision of the law. The legislation requires cable TV systems to reserve a portion of their channels to broadcast stations within their specific area. The cable companies sued against the provision, arguing that it unconstitutionally forced them to carry content produced by their competitors—broadcast TV stations.

A narrow majority on the Supreme Court sympathized with their concerns, up to a point. Writing for five justices, Anthony Kennedy conceded that cable companies are speakers with First Amendment rights. "Because the must-carry provisions impose special obligations upon cable operators and special burdens upon cable programmers, heightened First Amendment scrutiny is demanded," Kennedy wrote.

In fact, the "less rigorous" First Amendment standard applied to broadcasters doesn't work here, he opined. In its 1969 Red Lion case, the Supremes argued that the scarcity of broadcast licenses allowed the FCC to apply the Fairness Doctrine to license holders—the rule guaranteeing ordinary citizens the "equal access" right to offer contrasting views on radio and television stations (the Commission abandoned the Fairness Doctrine in 1987).

Cable companies were different, Kennedy argued. The spectrum scarcity problem didn't apply to them. This is the part of Turner that NCTA's McSlarrow cheers. "For the last several years," he noted, "some [net neutrality advocates] have been churning out speeches and writings that attack the idea that an ISP could be a First Amendment speaker (they really don't like the Turner decision)."

Conduits of speech

But Kennedy also argued that the "heightened scrutiny" First Amendment rights that cable companies enjoy didn't mean that the Cable Protection Act violated the First Amendment. The law's must-carry rules were "content neutral," the majority ruled in Turner, and therefore not subject to "strict scrutiny."

They are neutral on their face because they distinguish between speakers in the television programming market based only upon the manner in which programmers transmit their messages to viewers, not the messages they carry. The purposes underlying the must-carry rules are also unrelated to content. Congress' overriding objective was not to favor programming of a particular content, but rather to preserve access to free television programming for the 40 percent of Americans without cable. The challenged provisions' design and operation confirm this purpose.

In other words, although the Cable Protection Act's provisions may "interfere with cable operators' editorial discretion by compelling them to offer carriage to a certain minimum number of broadcast stations, the extent of the interference does not depend upon the content of the cable operators' programming," Kennedy concluded.

This is the part of Turner that the FCC likes. In its net neutrality Order, the FCC took a stance similar to the Supreme Court, calling cable ISP analogies with Turner "inapt."

Unlike cable television operators, broadband providers typically are best described not as "speakers," but rather as conduits for speech. The broadband Internet access service at issue here does not involve an exercise of editorial discretion that is comparable to cable companies' choice of which stations or programs to include in their service. In this proceeding, broadband providers have not, for instance, shown that they market their services as benefiting from an editorial presence.

To the contrary, Internet end users expect that they can obtain access to all or substantially all content that is available on the Internet, without the editorial intervention of their broadband provider.

Bottom line, the FCC insists, its new rules are "narrowly tailored" to limited goals. They focus on the end user's link to the Internet, barring actions that might "unfairly impede" public access to cyberspace.

"Broadband providers are left with ample opportunities to transmit their own content, to maintain their own websites, and to engage in reasonable network management," the Commission concludes. "In addition, they can offer edited services to their end users. The rules are narrowly tailored because they address the problem at hand, and go no farther."

What's next

Does this mean that the FCC will limit ISP attempts to sell certain content providers better quality access to their subscribers? That's not at all clear. As we've noted, although the Commission's Order warns that pay-for-priority deals are "unlikely" to satisfy its "No Unreasonable Discrimination" rule—that provision only applies to wireline ISPs. The decision also says the FCC will keep its eye on "specialized services" like IP Video, which could be offered by ISPs on a prioritized basis, but offers no rules at this point.

And who knows whether the agency is going to jump into complex disputes like the Level 3 Communications versus Comcast fight, in which Level 3 says Comcast went over the line by charging it more to move Netflix movie data to Comcast network subscribers. Comcast insists that this is just a private peering/transit dispute, in which Level 3's sudden jump in traffic required a monetary response.

But what the Commission's open Internet Order makes abundantly clear is that the FCC does not see the First Amendment as impediment to its decision. Quite the contrary, it sees Amendment One as a mandate.

"The point of open Internet rules is to protect traffic regardless of its content," the agency declares, and: "This Order protects the speech interests of all Internet speakers."