FAN 51.4 (First Amendment News) FCC Ruling: Broadband Internet Providers Have no First Amendment Rights re Access Services

On March 12, 2015, the Federal Communications Commission issued a 400-page ruling entitled “Report and Order on Remand, Declaratory Ruling, and Order.”

UnknownBy the Commission: Chairman Tom Wheeler and Commissioners Mignon Clyburn and Jessica Rosenworcel issuing separate statements; Commissioners Ajit Pai and Michael O’Rielly dissenting and issuing separate statements.

Here are a few First Amendment related excerpts from the FCC ruling and order:

  1. Benefit to Public: “Informed by the views of nearly 4 million commenters, our staff-led roundtables, numerous ex parte presentations, meetings with individual Commissioners and staff, and more, our decision today—once and for all—puts into place strong, sustainable rules, grounded in multiple sources of our legal authority, to ensure that Americans reap the economic, social, and civic benefits of an open Internet today and into the future.”
  2. Mere Transmission: “When engaged in broadband Internet access services, broadband providers are not speakers, but rather serve as conduits for the speech of others. The manner in which broadband providers operate their networks does not rise to the level of speech protected by the First Amendment. As telecommunications services, broadband Internet access services, by definition, involve transmission of network users’ speech without change in form or content, so open Internet rules do not implicate providers’ free speech rights. And even if broadband providers were considered speakers with respect to these services, the rules we adopt today are tailored to an important government interest—protecting and promoting the open Internet and the virtuous cycle of broadband deployment—so as to ensure they would survive intermediate scrutiny.”
  3. No Speaker Status: “Claiming free speech protections under the First Amendment necessarily involves demonstrating status as a speaker—absent speech, such rights do not attach.”
  4. Limited to Access Services: “[T]he free speech interests we advance today do not inhere in broadband providers with respect to their provision of broadband Internet access services.”
  5. Cable Distinguished: “[B]broadband is not subject to the same limited carriage decisions that characterize cable systems—the Internet was designed as a decentralized ‘network of networks’ which is capable of delivering an unlimited variety of content, as chosen by the end user.”
  6. Content Neutral“Even if open Internet rules were construed to implicate broadband providers’ rights as speakers, our rules would not violate the First Amendment because they would be considered content-neutral regulations which easily satisfy intermediate scrutiny. In determining whether a regulation is content-based or content-neutral, the ‘principal inquiry . . . is whether the government adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.'”
  7. Narrowly Tailored: “[T]he rules here are sufficiently tailored to accomplish these government interests. The effect on speech imposed by these rules is minimal.
  8. Citizens United Distinguished: “Our rules governing the practices of broadband providers differ markedly from the statutory restrictions on political speech at issue in Citizens United. Our rules do not impact core political speech, where the ‘First Amendment has its fullest and most urgent application.’ By contrast, the open Internet rules apply only to the provision of broadband services in a commercial context, so reliance on the strict scrutiny standards applied in Citizens United is inapt.”
  9. Compelled Disclosure: “The disclosure requirements adopted as a part of our transparency rule also fall well within the confines of the First Amendment. . . . The Supreme Court has made plain in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio that the government has broad discretion in requiring the disclosure of information to prevent consumer deception and ensure complete information in the marketplace.”

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