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Are New Net Neutrality Rules Unconstitutional?

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October 05, 2009

Are New Net Neutrality Rules Unconstitutional?

By Gary Kim, Contributing Editor

Financial analysts at Fitch Ratings make an interesting point in their general analysis of new "network neutrality" rules proposed by the Federal Communications Commission. In promulgating new rules that amount to regulation of the Internet, or at least access to it, the FCC (News - Alert) might be exceeding its constitutional authority and legal powers.

"There is some question whether the FCC has the legal authority to enact these mandates," Fitch analysts said.
There are several possible objections, some of them more narrowly procedural, some of larger import, and the objections do not hinge on whether the new rules are a good thing or not. The objections are simply that, to a greater or lesser degree, the promulgation of the rules in fact violates the United States Constitution. It is not clear whether Fitch analysts think the rules might be unconstitutional on narrow grounds, such as Congress not specifically authorizing the FCC to take these actions, or on broader grounds, such as violations of ISP First Amendment rights.
The American Legislative Exchange Council has questioned the constitutionality of the proposed FCC net neutrality changes on the grounds that Congress has not given the FCC statutory authority to meticulously regulate traffic on information services like the Internet," said Seth Cooper, ALEC's Telecommunications & Information Technology Task Force director.
Beyond that narrow interpretation, ALES also argues the regulations are "likely unconstitutional" under the First Amendment because they control and mandate speech travelling through a modern medium.”
"I'm troubled to learn that the FCC is embarking on an exercise that would probably result in rules that are unconstitutional and almost certainly beyond the FCC's statutory jurisdiction," Ken Ferree, president of the Progress and Freedom Foundation, wrote in an e-mail. "Aside from the legal issues it raises though, I find myself at a loss to understand why the administration wants to start meddling with a sector of the economy that, despite a challenging macro-economic environment, is performing pretty well by any rational standard. It's almost as if they are trying to turn a story of success into one of failure."
"Net neutrality (News - Alert) mandates likely would violate Internet Service Provider First Amendment free speech rights,” Randolph May, a writer for The National Law Journal and president of the Potomac, Md.-based Free State Foundation, said.
"Policymakers and activists groups are ramping up the FCC's regulatory machine for a massive assault on cyber liberty," said Adam Thierer and Berin Szoka, Progress & Freedom Foundation senior fellows. "This assault rests on the supposed superiority of common carriage regulation and 'public interest' mandates over not just free markets and property rights, but over general individual liberties and freedom of speech in particular."
Among the more-substantive constitutional issues is whether ISPs like Comcast (News - Alert) and Verizon possess free speech rights just like newspapers, magazines, movie and CD producers or the man preaching on a soapbox, May said.
Under traditional First Amendment jurisprudence, it is just as much a free speech infringement to compel a speaker to convey messages that the speaker does not wish to convey as it is to prevent a speaker from conveying messages it wishes to convey, May said.
The proposed neutrality non-discrimination mandates are eerily reminiscent of the Federal Communications Commission's fairness doctrine, which it jettisoned two decades ago in light of the new media proliferating even then, May said.
In effect, what the net neutrality proposals really seek to do, without saying so directly, is to reverse the Supreme Court's 2005 decision in National Cable & Telecommunications Assoc. v. Brand X Internet Services by turning ISPs into common carriers, he said.
Ken Ferree, president of the Progress and Freedom Foundation, said he is "troubled to learn that the FCC is embarking on an exercise that would probably result in rules that are unconstitutional and almost certainly beyond the FCC's statutory jurisdiction."
Arguments about common carrier regulation and "freedom of the press" always strike regular people as arcane. Generally speaking, regulation in the United States has often been a contest between common carrier and media regulatory models. The print media model has involved the most freedom, common carrier regulation the least, with radio and television someplace in between.
So among the key issues with any "Internet regulation" is whether greater or lesser degrees of freedom are possible, and if, so, how to balance the rights of various parts of the ecosystem. It might be arcane, but constitutional issues of greater or lesser significance might be involved in the net neutrality debate.
Narrowly procedural issues are less important than the broader issues, including the decades-old effort to maintain stricter common carrier regulation of voice services, but freedom for information services.

Gary Kim (News - Alert) is a contributing editor for TMCnet. To read more of Gary’s articles, please visit his columnist page.

Edited by Amy Tierney

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