How elevation of corporate free speech rights affects legality of network neutrality.

• Author: Cherry, Barbara A.

1. INTRODUCTION II. UTILIZING "ESSENTIALITY OF ACCESS" AS AN ORGANIZING PRINCIPLE III. THE COURT'S ANALYSIS IN CITIZENS UNITED V. FEDERAL ELECTION COMMISSION IV. IMPLICATIONS OF CITIZENS UNITED V. FEDERAL ELECTION COMMISSION V. FURTHER IMPLICATIONS OF CITIZENS UNITED V. FEDERAL ELECTION COMMISSION A. The Court's Radical Departure from the History of First Amendment Law 1. Overview 2. The Court's Motivation for Failing to Exercise Judicial Restraint and for Conducting an A historical Analysis 3. Each of the Court's Basic Premises is Wrong 4. Understanding Our First Amendment Tradition Based on Historical Analysis 5. The Court's Failure to Appreciate Special Concerns Raised by Corporations 6. Summary of the Court's Radical Departure from History B. Mirroring the FCC's Radical Departure from the History of Common Carriage 1. Historical Roots of Misunderstanding the Law of Common Carriage for Telecommunications 2. The Real History of the Law of Common Carriage 3. The FCC's Radical Departure from Both the Ancient History of Common Carriage and the Recent Historical Classification of the Telecommunications Component of Information Services 4. Extending or Reversing the FCC's Radical policy Trajectory Under Network Neutrality VI. THE COMBINATORIAL EFFECT OF THE COURT'S AND FCC's DECISIONS VII. NEW FCC RULES REINFORCE THE COMBINATORIAL EFFECT WITH CITIZENS UNITED I. INTRODUCTION

   "Essentiality of access" is a useful organizing principle for examining future communications policies in order to better enable the adoption of appropriate government interventions. It refers to the historical alignment of different access problems--that is, access to some essential service or facility--and the legal principles in the U.S. that evolved to address them. (1) It clarifies that different access problems led to the evolution of distinctive legal principles.

   Applying "essentiality of access" to broadband demonstrates that differing access objectives require reference to distinctive legal principles that affect different types of legal rights--including both economic rights and free speech rights under the First Amendment of the U.S. Constitution--of the access recipients and access providers. Awareness of the differing rights is necessary to address conflicts among them when simultaneously pursuing multiple access objectives, particularly when such conflicts affect constitutional rights of individuals as opposed to corporations.

   Technological convergence is posing conflicts among access recipients and access providers that require increasingly complex evaluation of how to balance the parties' respective legal rights. Such conflicts are shifting the tectonic plates of longstanding bodies of law, altering their interrelationships and creating new sources of friction among legal principles that had historically been viewed as independent of each other.

   For example, free speech concerns were rarely relevant to common carriers. As providers of only transmission facilities, telecommunications carriers generally possessed no First Amendment rights (other than as to tangential operations, such as billing practices). (2) However, mass media, as providers of information content of their choosing over their own facilities, do possess free speech rights. (3) With technological convergence and the elimination of legal entry barriers, the interrelationship of common carriage and free speech principles is becoming more complex. (4) Furthermore, the free speech rights of broadband providers have been elevated by the FCC's classification of broadband Internet access services as information services not subject to common carriage. (5)

   Imposing baseline obligations on broadband Internet access providers may give rise to conflicting economic and free speech rights of access recipients and broadband access providers. Moreover, the nature of these rights varies depending upon whether the access recipient is an end-user customer or a competitor in an ancillary market. Importantly, establishing baseline obligations may give rise to conflicting constitutional claims, pitting the economic and free speech rights of individuals against those of corporate interests. Resolving such conflicts further complicates the FCC's task in its pending rulemaking, Broadband Industry Practices, (6) where it considers what are often referred to as network neutrality principles.

   This Article stresses that, given that policy change is a path dependent process, establishment of baseline obligations for broadband Internet access providers must be based on analyses conducted in appropriate temporal context. Ripping analyses from appropriate historical context leads to misleading discourse, flawed assumptions, mischaracterizations, and misalignment of legal principles and the purposes they were designed or emerged to solve. Grounding analysis in appropriate temporal context, a critical component of my research has been devoted to correcting misconceptions and mischaracterizations of the law of common carriage that unfortunately misinform debates of telecommunications policies related to broadband. (7) These misconceptions and mischaracterizations have been created by factual and analytical errors arising from analyses that either totally ignore or improperly frame temporal dimensions of the evolution of the law of common carriage and public utilities.

   This Article expands upon this prior research to discuss the implications of the U.S. Supreme Court's decision in Citizens United v. Federal Election Commission (8) for the federal government's attempts to define obligations of broadband access providers. In Citizens United v. Federal Election Commission, the Court overruled some of its prior cases to hold that corporations must be treated identically to natural persons with regard to political speech. (9) However, as explained at length in the dissenting opinion by Justice Stevens, the Court's majority opinion contains numerous analytical flaws, including the failure to conduct a proper historical analysis of First Amendment jurisprudence and the Framers' views of corporations, to cite any empirical research to support its assertions, and to address differences between corporations and individuals. (10) Moreover, the Court ignores the need to balance the competing First Amendment interests of corporations and individuals. (11) As a result, the Court's holding is a "radical departure from what had been settled First Amendment law." (12)

   This Article also describes how the Court's radical departure from history under its flawed analysis in Citizens United v. Federal Election Commission mirrors the FCC's flawed analysis in its classification of broadband Internet access service as an information service with no separable telecommunications service component subject to common carriage regulation. The recent decision in Comcast Corp. v. Federal Communications Commission, in which the D.C. Circuit Court of Appeals recently held that the FCC lacks ancillary jurisdiction under Title I of the Communications Act of 1934 to prohibit certain network management practices of Comcast, does present an opportunity to reverse the FCC's radical policy trajectory with regard to the classification of broadband Internet access services. (13) The jurisdictional defect can be cured either by FCC reclassification of broadband Internet access services as telecommunication services under Title II or by Congress through legislation. (14) However, Citizens United v. Federal Election Commission, by elevating the constitutional free speech rights of corporations, diminishes the federal government's ability to protect consumer interests with regard to potential network neutrality principles, as neither the FCC nor Congress can impose obligations suffering from constitutional infirmity. Overall, the combinatorial or interactive effect of Citizens United v. Federal Election Commission and the maintenance of the FCC's current classification of broadband Internet access services is to effectively elevate the free speech rights of corporations to wield their economically derived wealth above both the economic and free speech rights of individuals.

2. UTILIZING "ESSENTIALITY OF ACCESS" AS AN ORGANIZING PRINCIPLE

   My prior research has used "essentiality of access" as an organizing principle for examining future policy objectives in communications in order to better enable adoption of appropriate government interventions. "Essentiality of access" refers to the historical mapping of different problems of access to some essential service or facility to the corresponding legal principles that evolved to address them. Thus, "essentiality of access" is an access problem-to-legal principle typology. The access problems differ depending on

   what services or facilities are deemed to be essential; for whom (access recipient) they are deemed to be essential; the nature of the relationship between the access recipient and the access provider; and what circumstances are impeding the accessibility of the service or facility. (15) The differing access problems are then mapped to the legal principles that developed, both under the common law and in statutes, to address them. This typology is represented in Table 1 below.

   Importantly, this typology reveals that different legal principles affect different types of legal rights--economic rights, welfare-related rights, and free speech rights--of access recipients and access providers. Awareness of these different types of legal rights highlights how differing rights may conflict when pursuing multiple access objectives. As discussed in Essentiality of Access, broadband policy issues, reflecting technological convergence, often simultaneously affect multiple access problems and thereby create potentially new conflicts among economic, welfare-related, and free speech rights. (16) The need for government to balance the interests among these conflicting rights is a complex...