WASHINGTON, December 9, 2009 – A cable industry leader made the case Wednesday that proposed government rules to regulate internet access in support of so-called Net neutrality or open internet principles are not only unnecessary but would threaten First Amendment rights.
“Net neutrality rules have the potential to restrict protected speech in myriad ways – and not just the speech of internet service providers,” said Kyle McSlarrow, speaking at a luncheon at the Four Seasons sponsored by the Media Institute.
“In some ways, from the millions of consumers who interact and engage on the Internet, to the facilities that provide those services, to the applications and content providers on the Web, the Internet is all speech. So as the FCC considers regulating in this area, it’s important that the agency carefully examine whether net neutrality rules can be justified under First Amendment standards,” McSlarrow said.
“But urging the government to impose rules that supposedly promote First Amendment values is too often used to justify regulations that instead threaten First Amendment rights,” he said. “By its plain terms and history, the First Amendment is a limitation on government power, not an empowerment of government.”
McSlarrow’s association represents cable operators that serve more than 90 percent of the nation’s cable television households and more than 200 cable program networks. According to NCTA, the cable industry is the nation’s largest broadband provider of high-speed Internet access.
McSlarrow said net neutrality rules “could infringe First Amendment rights because they could prevent providers from delivering their traditional multichannel video programming services or new services that are separate and distinct from their Internet access service.”
The First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
He said almost every net neutrality proposal would seek to control how an ISP affects the delivery of Internet content or applications as it reaches its customers. This raises forced speech issues and is not necessary as ISPs have said they will not block customers from accessing lawful content or applications on the Internet, said the cable official.
“Imposing regulations that prevent providers from using “too much” capacity for speech-related services not even associated with Internet access should cause all sorts of First Amendment and Fifth Amendment Takings alarm bells to go off,” said McSlarrow.
The FCC’s net neutrality rules as proposed “would prohibit ISPs and applications providers from contracting for any enhanced or prioritized delivery of that application or content to the ISPs’ customers,” he continued. The FCC rules could prevent some content providers from offering material in the form they want, which raises the question of whether the First Amendment allows “the government to prohibit a content or applications provider from paying to acquire the means to distribute its content in the form or manner it wishes?” asks McSlarrow.
“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,” said McSlarrow.
Progress & Freedom Foundation Senior Fellow Barbara Esbin also addressed the First Amendment issue in a paper released Wednesday on the Net neutrality debate. “Under traditional First Amendment jurisprudence, the government compelling a speaker to speak or transmit a message that it does not wish to transmit is just as much a free speech infringement as it is to prevent a speaker from transmitting or posting messages it wishes to transmit or post,” she wrote (PDF).
“If I believed that in the future our broadband ISPs will arbitrarily degrade service, that our antitrust and other consumer protection laws will be inadequate to protect consumers, and that our core First Amendment freedoms will be threatened by the lack of network neutrality rules, I might join the “pro” side of the network neutrality debate. But I don’t,” wrote Esbin.
Esbin’s and McSlarrow’s perspective runs counter to many who argue that Net neutrality regulation is key to preserving free speech principles.
“Internet providers like AT&T and Verizon want to permanently eliminate Network Neutrality, the Internet’s First Amendment and the key to Internet freedom,” according to MoveOn.org Civic Action.
The Federal Communications Commission plans to hold a workshop next week on free speech, democratic engagement and the concept of an open internet.
The meeting is one of a number of public workshops the FCC said it plans to hold in December and January as part of the open Internet Notice of Proposed Rulemaking. “These workshops will explore issues raised in the proceeding, including the technical realities of broadband networks and the impact of the Internet’s openness on various interests, including speech, democratic engagement, consumers, innovation, and investment,” reads the FCC notice (DOC).
In the FCC’s NPRM it also addresses the First Amendment issue. “We also seek comment on whether our proposed nondiscrimination rule will promote free speech, civic participation, and democratic engagement. Would discrimination by access providers interfere with those goals?
“Conversely, would our proposed rule impose any burdens on access providers’ speech that would be cognizable for purposes of the First Amendment, and if so, how? Would any burden on access providers’ speech be outweighed by the speech-enabling benefits of an open Internet that provides a non-discriminatory platform for the robust interchange of ideas?” reads the document (PDF).
Rosenworcel Stands Firm on Net Neutrality in Face of Lawmakers Urging Status Quo
The FCC chairwoman responded to a letter by members of Congress resisting calls to back down on net neutrality.
WASHINGTON, January 4, 2022 – Federal Communications Commission Chairwoman Jessica Rosenworcel said in a letter to lawmakers last week that she continues to stand by her view that the restoration of net neutrality principles would be the best move for the internet economy.
Rosenworcel was responding to an April letter by over two dozen members of Congress, who urged the chairwoman to maintain the current “light touch” regulations imposed by the 2017 commission, led by chairman Ajit Pai, who was appointed by then-President Donald Trump. That change rolled back net neutrality rules imposed by the 2015 Obama-era commission, which prevented internet service providers from influencing the content on their networks, including barring carriers from providing certain services for free over their networks – also known as “zero rating.”
In her letter on December 28, Rosenworcel, who was confirmed as commissioner of the agency by the Senate earlier that month, said the net neutrality principles of 2015 were the “strongest foundation” for the internet economy as a whole and is “fundamental” to the “foundation of openness.”
“Those principles drove investment on the edges of the network, which network operators responded to by investing in infrastructure that allows consumers to access the services of their choosing,” Rosenworcel said in the letter.
“I stand ready to work with Congress on this topic, as necessary,” she added. “However, I continue to support net neutrality and believe that the Commission has the authority to adopt net neutrality rules.”
The lawmakers – which include Cathy McMorris Rodgers, R-Washington, and Bob Latta, R-Ohio – used as support the efforts of service providers to maintain a robust network during the pandemic, as well as their willingness to waive late fees and open Wi-Fi hotspots as additional reasons for the commission not to impose further regulations on business. The letter also noted that the Department of Justice’s withdrawal of a lawsuit against a net neutrality law in California led to two providers axing services that relied on zero rating protections.
The lawmakers challenged previous comments made by Rosenworcel, who said that it was unfortunate that California had to fill a void left by the net neutrality rollbacks. But Rosenworcel reiterated those comments. “It is unfortunate that individual states have had to fill the void left behind after the misguided roll back of the Commission’s net neutrality policies,” she said in her letter.
And while the lawmakers said they “agree that harmful practices such as blocking, throttling, and anticompetitive behavior should not be permitted…we can achieve this without heavy-handed overregulation.”
The current make-up of the FCC includes two Democrats and two Republicans. President Joe Biden’s pick for a fifth Democratic commissioner to break the party deadlock, net neutrality advocate Gigi Sohn, is still awaiting a confirmation vote by the Senate.
Senate Committee OK’s Rosenworcel, Questions Sohn on Mapping, Net Neutrality, Broadband Standards
Gigi Sohn explained her positions on issues facing the FCC.
WASHINGTON, December 1, 2021 – As the Senate Commerce, Science and Transportation Committee confirmed Jessica Rosenworcel as commissioner of the Federal Communications Commission, it also questioned Wednesday agency nominee Gigi Sohn on issues including net neutrality, broadband mapping, and speeds.
Rosenworcel is already chairwoman of the FCC by virtue of being named to the position by President Joe Biden. The president picks the chair of the agency from among the commissioners. However, Rosenworcel’s term as commissioner is to expire unless the Senate confirms her appointment to another term.
The committee on Wednesday also approved Alvaro Bedoya, a staunch privacy advocate, as commissioner of the Federal Trade Commission and had rounds at questioning Alan Davidson, who was nominated as head of the National Telecommunications and Information Administration, which will oversee $42.5 billion in broadband funds from the recently signed Infrastructure Investment and Jobs Act.
On mapping, Sohn called for a “crowdsourcing” effort amongst states to improve the quality of broadband mapping, as the agency has started to do. “A lot of states have maps already and they are quite accurate,” she said. Though she could not commit to a timeline, Sohn said that there could be no “good policy without good maps” and that if she were confirmed, she would dedicate herself to improve the FCC’s broadband maps.
Sohn also voiced her support for municipal broadband. “I have supported municipal broadband for a very long time,” she said, adding she supports open access models that allow service providers to share the same network. Sohn pointed to Utah as an example, where the model has been implemented successfully. She stated that the model has led to “enormous competition” for service providers.
When pressed as to whether the FCC should be able to preempt states and dictate how they implement their broadband policy, Sohn said she would like the FCC to have a better relationship with states. “If I am confirmed, one of the things I would ask the chairwoman [to use me as] a liaison to the states, because I’ve really formed very good relationships with them,” she said. “In the past, we have not [reached out] to the states and made them partners. We have been more adversarial.”
Net neutrality, broadband standards and Big Tech
Sohn also came out in support of net neutrality. “What I am concerned about now, with the repeal in 2017 of the net neutrality rules and the reclassification of broadband, is that we have no touch,” she said. “[Net neutrality] is really much broader than [preventing] blocking and throttling. It is about whether or not bandwidth – which we all agree is an essential service – should have government oversight, and right now, it does not.”
Legislators also questioned Sohn on her perspectives regarding broadband standards. Sen. Mike Lee, R-Utah, asked Sohn what standard – whether it was 100 Mbps download with 20 Mbps upload, or 100 Mbps symmetrical service – would bridge the digital divide. Sohn stated that it would take more than just the deployment of infrastructure to bridge the digital divide.
“I have urged that Congress adopt a permanent broadband subsidy like the Affordable Connectivity Program – which is more money but is not permanent,” Sohn said. “You still always have the adoption problem as well, where people do not have the digital literacy, sometimes not even [actual] literacy, to be able to use the internet.”
Insofar that capacity and internet speeds are concerned, Sohn emphasized that the Infrastructure Investment Jobs Act “does prefer scalable networks to meet the needs of tomorrow.”
“What we do not want, I would think – or I would not want – is to come back in five or ten years and say, ‘Oh, my goodness! We spent all this money, and we still have slow networks, and we still have areas that are not served,” she said. “The ability to have technologies that can grow over time.” Sohn stopped short of explicitly listing specific scalable technologies.
On Big Tech, Sen. Ted Cruz, R-Texas, described “a confluence of liberals advocating for censoring anyone with whom they disagree,” and a situation where “big tech [is] eagerly taking up the mantle to censor those with whom they disagree.” Cruz asked Sohn how she could guarantee she would not “use the power of government to silence.”
Sohn said that she would “make that commitment” to not act in such a way and added that she would “take any allegations of bias extremely seriously.” She said that she will continue to work with the Office of Government Ethics to dissuade any concerns people may have about her biases.
A date for a vote on Sohn and Davidson’s nominations has not yet been scheduled.
Biden Signs Executive Order on Net Neutrality, Broadband Pricing Policy and Big Tech Merger Scrutiny
Executive order would kickoff new antitrust and net neutrality regulations.
July 9, 2021—President Joe Biden on Friday announced his intent to sign an executive order addressing an array of 72 initiatives, including net neutrality, and generally taking aim at big telecom and tech companies to address competition in the economy.
The White House released a fact sheet on the goals and the actions to be taken to achieve them.
The order would, among other things, task the Federal Communications Commission with reinstituting pre-Trump administration net neutrality rules.
Net neutrality refers to the concept that broadband providers must not block or throttle the content that consumers seek to access on the internet, or provide preferential access to content by business partners.
Under former President Barack Obama, the FCC in February 2015 enacted net neutrality rules promoting what his administration called “the open, fair, and free internet as we know it today.”
Broadband pricing policy
Biden’s order also tackled broadband policy and the digital divide more broadly.
It pointed to the 200 million Americans that live in regions with only one or two internet service providers and stated that this contributes to inflated internet service prices up to five times higher than in areas with more than two ISPs.
The order also condemned relationships between landlords and broadband providers that block new providers from expanding or improving broadband infrastructure to unserved and underserved areas, and it urged the FCC to enact rules to ban such deals and relationships.
To improve price transparency, Biden also urged the FCC to implement a “Broadband Nutrition Label” and require that all broadband providers report their service plans and rates to the FCC for evaluation.
Additionally, the plan directed the FCC to address unreasonably high, early termination fees enacted by broadband providers. The Biden administration argues that these fees are often in place only to discourage consumers from switching to what may be a superior internet service.
Big tech a target, too
In addition to broadband policy, the order would also take aim at data collection and mergers by big tech companies. The factsheet specifically mentioned that the order would tackle “kill acquisitions” designed to stifle perceived competitive threats to tech companies and pointed out that federal regulatory bodies have not done enough to prevent these mergers.
The administration would adopt a policy to greater scrutinize potential mergers, according to the White House fact sheet.
Additionally, the administration also condemned data collection policies by big tech companies, pointing to business models completely dependent on harvesting of sensitive consumer data. To address this, he tasked the Federal Trade Commission to draft new rules on consumer surveillance and data collection.
Net neutrality advocate at the FCC
FCC Acting Chairwoman Jessica Rosenworcel has been a longtime advocate for strong net neutrality laws. Though her critics have argued that there have been precious few examples of companies throttling their consumers internet speed, Rosenworcel has supported initiatives that would classify internet service providers as “common carriers,” and would forbid them from interfering in a user’s internet speed or the content they view.
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