The First Amendment and the Internet: the Press Clause Protects the Internet Transmission of Mass Media Content from Common Carrier Regulation

• Publication year: 2021
• Citation: Vol. 94

94 Nebraska L. Rev. 559. The First Amendment and the Internet: The Press Clause Protects the Internet Transmission of Mass Media Content from Common Carrier Regulation

The First Amendment and the Internet: The Press Clause Protects the Internet Transmission of Mass Media Content from Common Carrier Regulation

Fred B. Campbell, Jr.(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 560

II. Communications Regulation and Net Neutrality ....... 562
A. Regulation of Plain Old Telephone Service ......... 563
B. Regulation of Data Processing and Dial-Up Internet Services ........................................... 566
1. Forbearance from Regulating Enhanced and Information Services ........................... 567
2. Regulations Subsidizing the Dial-Up Internet . . 570
a. Common Carrier Resale .................... 570
b. Access Charge Exemptions ................. 571
C. Pre-Common Carrier Regulation of Broadband Services ........................................... 573
1. Competition Begets Net Neutrality Theory ..... 574
2. Initial Broadband Classification Decisions ...... 576
3. Adjudicatory Net Neutrality Decisions ......... 577
4. First Internet Order ............................ 579
D. Reclassification of Broadband as a Common Carrier Service ............................................ 582

III. Dissemination of Mass Media Communications ........ 583
A. Application of the Press Clause to Dissemination. . . 585
B. The Distinction Between Speech and Conduct ...... 588
C. The Distinction Between Mass Media and Common Carrier Communications .......................... 591

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IV. Level of First Amendment Scrutiny ................... 601
A. ISPs Disseminate Print Media ..................... 601
B. The Rules Are Content-Based ..................... 604
1. The Rules Are Content-Based on Their Face . . . 604
2. The Purpose of the Rules Is Content-Based ..... 606
3. The Gatekeeper Theory Is Content-Based ...... 608
C. The Rules Are Speaker-Based ..................... 612
D. Cable Television Precedent Is Inapplicable ......... 614
E. The O'Brien Distinction Between Speech and Conduct Is Inapplicable ........................... 615

V. Application of First Amendment Scrutiny .............. 616
A. Assuring a Diversity of Non-ISP Speech ........... 616
B. The Gatekeeper Theory Is Unsupported by Substantial Evidence .............................. 618
C. The Gatekeeper Theory Is Inconsistent with Established Precedent ............................. 622
1. Telegraphy and Telephony ..................... 622
2. Broadcast and Cable Television ................ 625
3. Mail Carriage ................................. 627
D. Issue Preclusion Does Not Apply ................... 630
E. There Is No Factual Finding of Scarcity ........... 630

I. INTRODUCTION

Is watching Netflix on the broadband Internet more like (A) watching cable television or (B) talking on the telephone? Common sense suggests the answer is "A," the court that overturned the previous net neutrality rules(fn1) chose "A,"(fn2) and the First Amendment demands "A."(fn3) The Federal Communications Commission (FCC) nevertheless chose "B" in its Second Internet Order,(fn4) which declared(fn5) that broadband In-

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ternet access services are "telecommunications services"(fn6) governed by the common carrier regulations in Title II of the Communications Act of 1934.(fn7) It gave no consideration to "A"-whether broadband Internet access is more like a "cable service."(fn8) The FCC did not consider the Internet's mass media capabilities at all.(fn9)

If the FCC had expressly acknowledged that the Internet offers communications capabilities that are functionally equivalent to the printing press, mail carriage, newspaper publishing, over-the-air broadcasting, and cable television combined,(fn10) it would have been obvious that classifying broadband Internet service providers (ISPs) as common carriers is an unconstitutional abridgment of the freedom of the press.(fn11) The FCC's contrary determination that the Internet is equivalent to plain old telephone service gave traditional media access theorists and their net-neutrality heirs the victory they could not achieve at the Supreme Court, which has held that imposing common carriage obligations on mass media violates the First Amendment.(fn12)

This Article concludes their victory will be short-lived. Like all other means of publishing and disseminating mass media communications, broadband Internet access service is a part of the "press" that the First Amendment protects from common carriage regulation,(fn13)

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and like all other press, ISPs have a right to exercise editorial discretion over the content they choose to disseminate.(fn14) The FCC's new net neutrality rules violate that right under any applicable level of First Amendment scrutiny by totally banning ISPs from exercising any degree of editorial discretion.

Part I of this Article briefly summarizes the FCC's historical approach to Internet regulation, the theories that drove the classification of broadband Internet access as a common carrier service, and the net neutrality(fn15) rules the FCC adopted in its Second Internet Order. Part II describes Supreme Court precedent holding that the dissemination of mass communications is entitled to First Amendment protection, explains the constitutional distinction between common carrier and mass media communications, and discusses the implications of denying First Amendment protection to ISPs. Part III explains why a reviewing court should apply strict scrutiny to the FCC's net neutrality rules. Finally, Part IV argues that the Second Internet Order cannot withstand either strict or intermediate scrutiny under the First Amendment.

II. COMMUNICATIONS REGULATION AND NET NEUTRALITY

The Communications Act defines the subjects of its regulation in terms of particular communications services-e.g., "information service"(fn16) (governed by Title I), "telecommunications service"(fn17) (governed by Title II(fn18)), "mobile service"(fn19) (governed by Title III), and "cable service"(fn20) (governed by Title VI(fn21))-not particular communications facilities or their operators. This distinction is express with respect to the definition of "telecommunications service," which applies to the offering of "telecommunications" for a fee "regardless of the facilities used."(fn22) As a result, the same communications facilities can be used to offer multiple communications services that are subject to different

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regulations. For example, Verizon uses its fiber-to-the-home facilities to provide voice, video, and broadband Internet services.(fn23)

The FCC's approach to Internet regulation was initially developed solely by reference to the common-carrier provisions in Title II that govern plain old telephone service (POTS)(fn24) because data processing services once relied on facilities provided by the public switched telephone network.(fn25)

A. Regulation of Plain Old Telephone Service

Because POTS was long thought to be a natural monopoly, telephone service was typically a state-sponsored monopoly(fn26) when the Communications Act of 1934 (1934 Act) was adopted.(fn27) Congress chose to constrain this monopoly through Title II,(fn28) which requires that common carriers provide communications services at reasonable rates(fn29) and without unreasonable discrimination.(fn30) In the monopoly era, the reasonableness of common carrier communications services was determined through the tariff-filing requirement in Section 203(fn31) -the "centerpiece" of the Title II regulatory scheme(fn32) -which mandates that common carriers file their rates with the FCC and charge only their filed rates.(fn33) Much of Title II and the 1934 Act's

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overall procedural and administrative provisions are premised upon this tariff-filing requirement.(fn34)

When the FCC began permitting competitive entry into telephone markets in the 1970s,(fn35) it discovered that tariff filing promotes strategic behavior and inhibits innovation in markets that are subject to competition.(fn36) It found competitive communications carriers had "channeled considerable efforts toward delaying each other's attempts to implement price and service innovation [through strategic objections to tariff filings] rather than attempting primarily to improve upon their own performance in the marketplace."(fn37) The FCC ultimately concluded, "[I]n a competitive market, market forces are generally sufficient to ensure the lawfulness of rate levels, rate structures, and terms and conditions of service set by carriers who lack market power," and "[R]emoving or reducing regulatory requirements also tends to encourage market entry [i.e., deployment] and lower costs."(fn38)

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Because non-dominant carriers are "presumptively unlikely to discriminate unreasonably,"(fn39) the FCC decided to eliminate tariff filing requirements for wireline common carriers that lack market power.(fn40)

In 1993, Congress codified the FCC's detariffing policy for mobile telephony service (traditionally known as "CMRS" in FCC parlance).(fn41) As amended, Section 332 authorizes the FCC to forbear from applying any Title II provision (with the exception of Sections 201, 202, and 208) to CMRS providers if its application is unnecessary to meet the reasonableness requirements in Sections 201 and 202 or to protect...