Big Telecom Claims Oversight & Accountability Violates Its First Amendment Rights

from the do-not-pass-go,-do-not-collect-$200 dept

The Ajit Pai FCC's attacks on net neutrality have received ample attention. Less talked about is the fact that the attack on net neutrality was just one part of a much broader effort to eliminate what was already pretty tepid oversight of one of the least liked and least competitive tech sectors in America.

The Pai FCC's Orwellian-named "Restoring Internet Freedom" order not only killed net neutrality rules, it dramatically rolled back FCC authority over big ISPs like Comcast, shoveling any remaining authority to an FTC ISP lobbyists know full well lacks the authority or attention span for telecom oversight. In addition to that, the FCC (again at big telecom's behest) has set about trying to claim states can't protect consumers either. With neither competition nor state or federal oversight keeping natural monopolies in line, it shouldn't take a degree in genetics to ferret out the potential pitfalls.

One of the key arguments underpinning most of the telecom sector's lobbying shenanigans of late involves one central claim: that state or federal efforts to hold giant ISPs accountable somehow violates Comcast and other ISPs' First Amendment rights. You'll recall ISPs tried to claim that net neutrality somehow violated ISPs' free speech rights, despite the fact that as simple conduits they don't engage in "editorial" decisions, making the argument rather silly.

The courts didn't agree with broadband providers then, but in his dissenting opinion during those earlier court battles new Supreme Court Justice Brett Kavanaugh did. Susan Crawford over at Wired offers up a solid piece explaining why, with Kavanaugh now positioned in the highest court of the land, ISPs are very eager to start pushing this argument more forcefully in the months and years to come:

"The addition of Justice Brett Kavanaugh to the Supreme Court roster gives the industry a significant boost. In a 2017 DC Circuit dissenting opinion, Justice Kavanaugh made it clear that he supports giving internet access providers "speaker" privileges, saying that "the First Amendment bars the Government from restricting the editorial discretion of Internet service providers."

She goes on to explain how the perils of embracing this argument opens the door to a future where little to nothing constricts Comcast's worst impulses:

"Treating the transmission of data as "speech" will make it virtually impossible for the government to say anything at all about internet access. If the government tries to regulate someday, you can be confident that the industry will make a lot of noise in the form of lawsuits focused on cable's First Amendment rights to carry out its "editorial discretion," in hopes that Justice Kavanaugh will get a chance to lock in the industry's status as a member of the press. The "speech" of a handful of giant companies will be privileged over the ability of all Americans—including all other American businesses—to communicate."

Again, the lower courts so far haven't much agreed with ISP arguments on this front. The claim was shot down during several court rulings and appeals during the net neutrality fight, and shot down again recently when Charter tried to wiggle out of allegations of racially-motivated treatment of a minority-owned broadcast channel Charter booted from its cable lineup. Charter (aka Spectrum) has also flirted with the argument unsuccessfully in its ongoing battle with New York State over years of poor service and violated merger obligations.

Again, ISPs are simply conduits to information, not acting as editors, making the whole thing a rather stupid argument. But it's a stupid argument being made in an era when stupidity is decidedly en vogue; and ISPs' very much hope to use it as a blunt weapon should any of these fights stumble their way to the Supreme Court over the next few years.

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Filed Under: 1st amendment, ajit pai, broadband, fcc, net neutrality, oversight, regulations

Companies: at&t, comcast, verizon