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,” and the court that overturned the previous open Internet rules chose “A”; the First Amendment demands it. The Federal Communications Commission (FCC) nevertheless chose “B.”
In the 2015 Open Internet Order, the FCC concluded the Internet is the functional equivalent of the public switched telephone network and is subject to the common carrier regulations in Title II of the Communications Act of 1934. If it had admitted 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, it would have been too obvious that its decision to classify broadband Internet service providers (ISPs) as common carriers is unconstitutional. Like all other means of disseminating mass communications, broadband Internet access is a part of the press that the First Amendment protects from common carriage regulation.
Federal Communications Commission Chairman Tom Wheeler testifies before the House Judiciary Committee in
March. (Photo by Chip Somodevilla/Getty Images)
The Supreme Court has upheld only government intrusions on the freedom of the press that were limited in scope and justified by detailed factual findings of scarcity or express agreement. For example, in Red Lion, the Court ruled that a scarcity of available broadcast frequencies was enough to justify a relatively limited intrusion on the editorial discretion of over-the-air broadcasters, and inTurner I, it ruled that a Congressional finding of monopoly market power was enough to justify the imposition of access rights on up to one-third of the capacity of large cable networks.
