The Impact of Next Generation Television on Consumers and the First Amendment
Consumers have access to an ever increasing inventory of video content choices as a result of technological innovations, more readily available broadband, new business plans, inexpensive high capacity storage and the Internet’s ability to serve as a single medium for a variety of previously standalone services delivered via different channels. They increasingly have little tolerance for “appointment television” that limits access to a particular time, channel and device. Access to video content is becoming a matter of using one of several software-configured interfaces capable of delivering live and recorded content anytime, anywhere, to any device and via many different transmission and presentation formats. Technological and marketplace convergence eliminate the viability of judicial and regulatory models that apply varying degrees of First Amendment protection as a function of the medium delivering the content. With the Internet serving as a single conduit for a variety of information, communications and entertainment (“ICE”), ventures can offer a bundle of services that span two or more regulatory classifications, e.g., the ability of wireless handsets to make telephone calls, to receive video programming and to access the Internet. This paper will examine the ongoing migration from channels to software-configured platforms for accessing video content with an eye toward assessing the impact on consumers and the First Amendment. The paper identifies the need for significant amendment of the Communications Act of 1934 to provide a light-handed and limited, but explicit statutory basis for the FCC to resolve predictable disputes between stakeholders and to remedy anticompetitive practices.
Invoking and Avoiding the First Amendment: How Internet Service Providers Leverage Their Status as Both Content Creators and Neutral Conduits
Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values.While professing to support marketplace resource allocation and a regulation-free Internet, the FCC has selectively imposed compulsory duties on ISPs who qualify for classification as largely unregulated information service providers. Such regulation can tilt the competitive playing field, possibly favoring some First Amendment speakers to the detriment of others. Yet the FCC has summarily dismissed any concerns that the Commission’s regulatory regime inhibits First Amendment protected expression.For their part, ISPs have evidenced inconsistency in how seriously they value and exercise their First Amendment speaker rights. Such reticence stems, in part, from the fact that ISPs combine the provision of conduits, using telecommunications transmission capacity, with content. While not operating as regulated common carriers, the traditional classification of conduit-only providers, ISPs can avoid tort and copyright liability when they refrain from operating as speakers and editors of content. In other instances, the same enterprise becomes an aggressive advocate for First Amendment speaker rights when selecting content, packaging it into a easily accessible and user friendly “walled garden,” and employing increasingly sophisticated information processing techniques to filter, prioritize and inspect digital packets. Technological and marketplace convergence creates the ability and incentive for ISPs to operate as publishers, editors, content aggregators, and non-neutral conduit providers. No single First Amendment media model (print, broadcast, cable television and telephone), or legislative definition of service (telecommunications, telecommunications service and information service) cover every ISP activity. Despite the lack of single applicable model and the fact that ISPs provide different services, the FCC continues to apply a single, least regulated classification. The inclination to classify everything that an ISPs does into one category promotes administrative convenience, but ignores the complex nature of ISP services and the potential for to harm individuals, groups and First Amendment values absent government oversight. For example, the information service classification enables ISPs to engage in price and quality of service discrimination that network neutrality advocates worry will distort a free marketplace of ideas.This paper will examine the different First Amendment rights and responsibilities borne by ISPs when they claim to operate solely as conduits and when they combine conduit and content. The paper will show that ISPs face conflicting motivations with light FCC regulation favoring diversification into content management services, like that provided by editors and cable television operators, but with legislatively conferred exemptions from liability available when ISPs avoid managing content. The paper concludes that current media models provide inconsistent and incomplete direction on how to consider ISPs’ joint provision of conduit and content. The paper provides insights on how a hybrid model can address media convergence, and promote First Amendment values while imposing reasonable nondiscrimination responsibilities on ISPs.
Neither Fish Nor Fowl: New Strategies for Selective Regulation of Information Services
This paper will examine whether and how the FCC can support a campaign to deregulate or treat as outside its jurisdiction many next generation network services while at the same time imposing financially burdensome requirements and regulatory duties on some ventures that fit within the information service provider classification. The FCC has erected a regime largely predisposed to treat next generation services as information services free of interconnection, unbundling, tariffing, line sharing and other requirements Title II of the Communications requires the FCC to impose. To support its deregulatory mission the FCC has found ways to subordinate the telecommunications components in a service that blends telecommunications transmission of bits with information services. For example, in reclassifying DSL from a telecommunications service to an information service the FCC combined the need for deregulatory parity with a new finding that the once stand alone telecommunications service characteristic of DSL had become inextricably integrated with information services with the latter predominating. Notwithstanding the urge to deregulate, either on rational or doctrinal grounds, the Commission has had to confront the fact that competition alone will not ensure the achievement of all Congressionally mandated, or FCC identified public interest objectives. Even with actual or prospective competition, the wholesale abdication of regulatory oversight leaves the FCC in a precarious legal position, if and when it needs to reassert regulatory oversight as has occurred on four separate occasions for VoIP services and once for all types of broadband Internet access information services.