Communications policy pirouettes

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More than a decade has elapsed since Congress passed the Telecommunications Act of 1996. It is time to engage in a radical rethinking of communications law and policy.

Two of 2006's hottest communications policy topics -- so-called Net neutrality and the AT&T-BellSouth merger -- nicely illustrate my main point: Much communications policy thinking continues to rest on foundations that run against the grain of our constitutional culture.

I do not argue here that particular laws or policies violate current constitutional jurisprudence. Rather, I contend that in today's competitive, fast-changing digital communications environment, radically different from the staid, generally monopolistic analog era in which the counter-constitutional culture was born, heightened respect for values derived from the Constitution would be a good starting point for reforming communications policy.

First consider Net neutrality. Proposed neutrality mandates would prohibit broadband Internet service providers ("ISPs") such as Verizon or Comcast from taking any action to "block, impair, or degrade" the ability of subscribers to reach any Web site or from "discriminating" against the content or applications of unaffiliated entities. A popular formulation prohibits broadband ISPs from preventing subscribers from "sending" or "posting" any content.

"Net neutrality" has a pleasing ring. But government mandates requiring broadband ISPs to make available their networks for carrying or posting content they might prefer not to carry or post implicates ISPs' free speech rights. Under traditional First Amendment jurisprudence, it is as much a free speech infringement to compel a speaker to convey messages against the speaker's wishes as it is to prevent a speaker from conveying messages.

Those still wedded to analog era paradigms do not grasp the notion that government-imposed "neutrality" mandates might violate the First Amendment. They cling to traditional 20th century broadcast and common-carrier regulatory paradigms. Under the broadcast model, on the theory that broadcasters use the electromagnetic spectrum, a claimed scarce public resource, it is deemed permissible to curtail broadcasters' free speech rights in ways the First Amendment does not tolerate for nonbroadcast media.

Thus, the Supreme Court sanctioned the FCC's notorious Fairness Doctrine which required broadcasters to cover controversial issues in a balanced (read: neutral) way.

Under the common carrier model, on the theory telephone companies operate in a monopolistic environment, their rates and terms of service are controlled by the FCC. As long as carriers are allowed to earn a "reasonable" return on their investment, such government control is considered constitutionally permissible. But the Fifth Amendment's prohibition against the "taking" of private property for public use without just compensation is an outer boundary against confiscatory regulation.

Today's digital broadband ISPs are neither broadcasters nor common carriers under the Communications Act's classification scheme. They are private businesses that have invested billions of dollars building high-speed communications networks. The FCC has classified broadband ISPs as unregulated "information service providers" and repeatedly determined they operate in a competitive environment.

Under these circumstances, efforts to impose neutrality mandates akin to broadcast-like speech restrictions and common carrier-like nondiscrimination mandates become constitutionally suspect.