Response to "Regulatory Implications of Turning Internet Platforms into Common Carriers". (response to Lawrence Spiwak, Federal Communications Law Journal, vol. 76, p. 1, 2023)

• Date: 01 May 2024
• Author: Candeub, Adam

TABLE OF CONTENTS
                I. INTRODUCTION 340
                II. RESPONSE TO SPIWAK'S ARTICLE 340
                 A. NetChoice v. Paxton 340
                 B. H.B. 20 343
                III. CONCLUSION 347
                

I. INTRODUCTION

An article by Lawrence Spiwak in the Federal Communications Law Journal, Regulatory Implications of Turning Internet Platforms into Common Carriers, (1) critiques my article (2) and one by Eugene Volokh, (3) both of which examine the legality of nondiscrimination obligations on social media firms and other communications networks.

II. RESPONSE TO SPIWAK'S ARTICLE

A. NetChoice v. Paxton

The arguments Regulatory Implications forwards have obvious applications to the Supreme Court's decision in NetChoice v. Paxton expected this year. (4) This case will review the constitutionality of H.B. 20, a Texas state law that requires the dominant social media companies to refrain from viewpoint discrimination, applying a common carrier type non-discrimination requirement that telephones, telegraphs, and airlines currently work under. Given the importance of the case, I asked the editors for an opportunity to respond to the critique, and they kindly agreed.

My article, Bargaining for Free Speech: Common Carriage, Network Neutrality, and Section 230 ("Bargaining for Free Speech"), points out that communications law and regulation, in a broad sense, grants certain privileges, particularly toleration of monopoly, in exchange for non-discrimination obligations or liability protections. (5) I contrasted that "deal" with Section 230 of the Communications Act of 1934, which gives Internet platforms, including the dominant social media firms, big carrots but no sticks, relieving the Internet platforms of liability in exchange for no corresponding public benefit, such as non-discrimination obligations. (6) Although written years before its passage, the article shows that Texas's H.B. 20 is very much in the tradition of common carrier communications regulation in imposing non-discrimination obligations.

Rather than respond to this straightforward argument, Regulatory Implications creates a strawman: my article supports public utility regulation for the Internet or social media. The article states that it "assume[s] arguendo [that].... calls for common carrier regulation of Internet platforms are, in fact, calls for public utility regulation similar to FCC regulation of telephone companies, [and asks] then what would such a regulatory regime for Internet platforms look like... the purpose of this paper is to offer a few insights" (7) and claims, that I "sit squarely in the public utility camp for platform regulation." (8)

That's a false assumption and a false claim. Public utility regulation is the economic regulation of utilities, such as electricity, gas, water, and sometimes telephones particularly their consumer pricing, usually assuming that these services are a natural monopoly. (9) It typically involves comprehensive rate and service regulation. In contrast, common carrier antidiscrimination requirements are judge-made rules with their origins in the late Middle Ages. (10) Like their more modern cousins, public accommodation law, these rules simply require businesses to serve all comers without discrimination. (11) Most retail businesses today operate under such mandates.

As the title of my article makes clear, it was talking about common carrier law, which is historically administered by courts. The article never discusses public utility law at all, and any reading otherwise misinterprets my article. Further, it is a common misconception that Title II of the Communications Act of 1934 embraces a comprehensive public utility model; it is at best partial. (12) Regulatory Implications appears to adopt this view in its discussion of Sections 201, 202, and 203 of the Act. But, the Communications Act of 1934 does not; it regulates "common carriers," (13) which courts have interpreted to refer to the historical meaning of the term (14)--so that my discussion of the Act does not necessarily implicate public utility principles at all.

Further, I have never called for a "dedicated regulator" to treat social media as public utilities. Indeed, I have attacked ferociously the administrative state in many of my writings. (15) My article concludes, with the second of two mentions of administrative agencies, stating a "new deal is necessary, starting with, at least, a proper judicial understanding of section 230 and then statutory or regulatory reform, which is within the power of the FCC or FTC. These reforms would include an anti-discrimination requirement that dominant platforms share blocking technologies with users so that individuals, not corporate platforms, set the boundaries of on-line speech." (16) My interest is in simple common carrier-type non-discrimination rules, and I am at best agnostic about whether administrative agencies should take the lead, although elsewhere my preference for court-adjudicated standards is clear.

Rather than require the complex pricing schemes of public utility law, social media non-discrimination laws, like House Bill 20 (H.B. 20), require simple non-discrimination mandates, of the sort which regulate railroads, (17) restaurants, (18) FEDEX, (19) and telegraphs, (20) and which courts have enforced for centuries. And, that's all my article--or, for that matter, supporters of H.B. 20--argue for. My article states "simple de-platforming... can be analyzed under a non-discrimination framework. The question of whether one is discriminatorily terminated from a network is not a deep technical issue. Rather, it is akin to the discrimination question in civil rights and employment law that courts routinely answer." (21)

B. H.B. 20

Armed with this misreading that my article advocates comprehensive public utility regulation of social media, Regulatory Implications suggests non-discrimination of the type H.B. 20 requires is, in fact, invasive public utility rate regulation and then proceeds through a litany of hypotheticals.

First, "[r]ather than regulate internet platforms' economic conduct (e.g., prices), however, the government would regulate the platforms' speech. The problem, of course, is that because neither common carriage nor public utility regulation were ever intended to serve this function, how that regulatory regime would work in practice is unclear." (22)

To the contrary, the history of common carrier law shows how it imposed non-discrimination mandates on businesses carrying speech and messages--even accepting the tendentious assertion that the messages carriers bear are their own expression. For instance, common carrier principles were applied to telegraphs when they refused to carry news stories critical of telegraph companies in the 19th century. (23) And, indeed, judicial rulings hold that requiring carriers to bear others' messages does not convert those messages into carrier expression. Companies that carry others' speech cannot claim it as their own. This is the conclusion that the Fifth Circuit in NetChoice came to, pointing out that the platforms, themselves, have strenuously advocated such a view in Section 230 cases. (24) Even more important, the Supreme Court appeared to side with this view just last term in Taamneh, stating that Internet search platforms' "'recommendation' algorithms are merely part of that infrastructure. All the content on their platforms is filtered through these algorithms, which allegedly sort the content by information and inputs provided by users and found in the content itself. As presented here, the algorithms appear agnostic as to the nature of the content." (25)

Second, my article looks to other examples in communications law in which, in a broad sense, the government granted certain privileges, such as tolerating monopoly, in exchange for non-discrimination obligations or...