FCC: ISPs can’t use First Amendment as shield from net neutrality
This is one of the most exciting debates of our times although few are paying much attention: the outcomes of these regs will be fought over for years and it will both drive and impede sectors of the economy for decades to come. Will the net remain open or will mega content monopolies close it down to thin pipes and thin gruel for independent content?
It’s instructional that the people howling the loudest at this moment are in the pockets of those monolithic, near monopolistic “buy our entire tiers or be damned” providers who were granted exceptional rights in the public right of way decades ago, and who still enjoy those barriers to competition that their initial pioneering provided. (Cox, Clear Channel, etc.) It’s the virtual equivalent of the range wars in modern times.
“The First Amendment protects the right not just to decide what to say, but how to say it.” So declared National 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.