Public Sidewalks on Private Property: Net Neutrality, Common Carriage, and Free Speech

September 29, 2015
Guest Post

by Matt Wood, Policy Director, Free Press

*This post is part of ACSblog’s symposium on the FCC’s net neutrality rules.

Working for an organization that’s helped lead a decade-plus fight on a single set of policy issues, it’s hard to know where to begin.

I could just start in the present. After all, intervenors and amici supporting the Federal Communications Commission’s rules filed at the DC Circuit just last week. My organization was one of almost two dozen parties joining that intervenors’ brief.

Over the past ten years, Free Press has written extensively on these topics, focusing on issues like communications network nondiscrimination principles, common carriage fundamentals, broadband investment realities, and the proper legal treatment for broadband networks under federal communications law.

That’s too long a history to choose from if I’m going to say anything coherent in a short post. So I’ll make it even harder and start in 1946.

Why so far back? Because of a Supreme Court case called Marsh v. Alabama, a decision about public sidewalks owned by private companies. That case has always reminded me of common carrier communications networks (and law school – but that’s another story).

To be sure, the questions surrounding Net Neutrality pre-date the modern “Open Internet” era at the FCC, in cases much closer to home for the agency. Beginning in the early 1960s, it started wrestling with questions about how to treat computer services offered over phone networks.

It produced a series of seminal decisions in what came to be called its “Computer Inquiries” – drawing a line between “basic” transmission services like telephone and the “enhanced” computer processing capabilities people had started to offer over those telephone networks.

In many ways, these decisions merely applied – to a new and exciting technology, with almost limitless potential – longstanding common carriage principles in the Communications Act of 1934. (Others in this blog symposium, like the incomparable Professor Barbara Cherry, discuss this common carriage lineage in greater depth.)

In short, telephone is a common carrier service – able, as it turns out, to transmit data as well as voice. The phone company providing that service should have little reason to care what content it carries, so long as it’s paid for the carriage. And even if the carrier does happen to care about the contents of its customers’ communications, it should have no power to prevent their delivery, or discriminate unreasonably against the sender or recipient, or interfere with the message.

That’s basically the definition of Net Neutrality, which keeps in place for broadband Internet access networks the same common carriage principles and nondiscrimination protections users had (and still have) on telephone networks.

Some unserious critics of Net Neutrality question the ongoing validity of nondiscrimination provisions in the 1934 Act. Their critique is based on little more than the law’s age, though its structures were updated, streamlined, and pared back by the Telecommunications Act of 1996.  But there’s nothing old-fashioned about the notion that the company carrying your speech shouldn’t tell you what to say or who you talk to. And these protections may apply no matter how competitive the market for such carriage services may be.

Communications carriers are relatively few in number, and in some respects Congress retains special rules for them because of this. It’s hard to switch to a different provider. Our intervenors’ brief begins with this precise point. Barriers to entry are incredibly high, and there are few competitors to the incumbent phone and cable companies who serve most of the country.

But there is also something special and especially important about communications networks and the function they serve, no matter how many choices you have among providers and no matter what you do with your connection.

At the individual user level, think about the smartphone you likely carry everywhere. It can do a lot of things, including connect you to the Internet. The FCC doesn’t and shouldn’t regulate how you use that device, meaning what you say, read, or watch on it. But neither should the carrier who sells you network access dictate what you do with your device or with the broadband capacity it sells you.  Users deserve the same rights we’ve always enjoyed when we were making traditional telephone calls, even if today we’re chatting, texting, messaging, uploading, streaming, or any other -ing one can imagine online.

At the macro level, as Free Press has pointed out time and again, communications common carriage rules are not a thing of the past. Nor are they confined to monopolies. They’ve always applied to wireless voice, even though most people in the U.S. have four or five choices or more when it comes to wireless providers. Can you imagine being told your wireless carrier would no longer complete calls to certain numbers because if you didn’t like it, you could switch to another cellphone provider?

Common carrier rules have always applied to a whole suite of relatively competitive business-grade broadband services too, even though the FCC turned away for a time from treating residential broadband Internet access as a common carrier.  And common carriage provisions, along with more generic nondiscrimination rules, apply in all sorts of competitive industries outside of the telecom realm.

The special role of communications networks doesn’t change, even as technology evolves away from narrowband analog networks to all-digital broadband, and even if you’re lucky enough to have more than one choice when you pick a provider.

The FCC’s February 2015 Open Internet decision is built on these sturdy cornerstones of the law. The agency returned to the sound nondiscrimination framework of the 1934 Act. Congress had retained that framework, but updated it extensively in 1996, with amendments and definitions modeled on the distinction the FCC drew between basic and enhanced services in the Computer Inquiries.

In doing so, the FCC restored the distinction between basic transmission services and the content that flows over transmission networks.  It placed Internet access back under Title II of the Communications Act, and precluded unreasonable discrimination by access service providers with the content sent and received over their telecom networks.

The FCC should and does regulate the access networks that connect us, but not the content we send to each other. Meaning the FCC can and does regulate telephone networks without regulating what we say to each other on our calls.  Thanks to the February 2015 decision, the same principles now apply if we’re sending text and video instead of confining ourselves to voice.

The FCC is not “regulating the Internet,” as some of those cynical critics of Net Neutrality rules would have you believe. As Professor Susan Crawford so aptly put it on the eve of the previous DC Circuit argument on this topic, those opponents conflate the sidewalk with the conversation. That is, they believe (or perhaps pretend) that the wires connecting us to the Internet are the same thing as the conversations that flow over those wires. But the pathway is different from the conversation that occurs on it.

The FCC, thanks to Congress, has some power to keep the sidewalk clear. That’s true even when there’s a private owner of that sidewalk. It’s crucial for our democracy and our economy that conversations happen freely, without undue interference by the owner of the network.

And that’s just what the Marsh opinion made clear nearly 70 years ago. It involved a privately owned “company town” outside of Mobile, Alabama. The corporation that owned the town tried to prevent people from passing out leaflets on the sidewalk, posting warnings that this private parcel was closed to public conversations undertaken without permission. The speaker in that case was not just blocked from passing out literature, she was arrested. Lower courts held she had no rights against the private company that owned the town.

The U.S. Supreme Court thought otherwise.

We do not agree that the corporation’s property interests settle the question. The State urges in effect that the corporation’s right to control the inhabitants…is coextensive with the right of a homeowner to regulate the conduct of his guests. We cannot accept that contention. Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it…. Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.

Indeed, the Court found that whether property held out for public use is itself publicly or privately owned, “the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free.”

There could no better rallying cry for the Open Internet and the FCC decision intended to keep it open.

Now I can’t pretend the Marsh precedent resolves the current case or the constitutional issues raised in it. Marsh was limited to great degree by later precedent on individuals’ rights against private property owners.  (Lloyd v. Tanner from 1972 leaps to mind, suggesting that a private shopping mall is not the same thing as a company town.)

But we need not decide whether Internet access is more like a public square or a shopping mall. We don’t even have to decide if Internet access providers are more like telephone carriers or newspaper editors who can pick and choose which content to carry.

When it sued the FCC over the previous iteration of the Open Internet rules, Verizon preferred to think of itself in that editing role. It claimed that “broadband providers possess ‘editorial discretion’” and that “[j]ust as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others.” Some petitioners suing the FCC this time made this compelled speech argument again, though the big ISPs saw fit to drop it.

The FCC shot this claim down in its own DC Circuit brief this month. We intervenors followed suit. So did an amicus brief from a who’s who of First Amendment and Internet law scholars. All three briefs explain that when a carrier transmits the speech of others, it is acting as a conduit for those speakers’ messages – not engaging in expressive conduct itself. Few people would think the act of completing a phone call as dialed is the telephone company’s “speech” or an act of “editorial discretion” by that carrier. After all, since when did the phone company “edit” our phone conversations, or decide who we can call? The rules preventing such behavior should (and now do) apply to Internet access providers.

Other amici, like ACLU and EFF, suggest there may be some editorial discretion in play when the ISP completes the call, as it were, and transmits users’ speech to and from the Internet. To me, it’s implausible to think this way about completing a transmission on behalf of the carrier’s customers. Whether it’s a phone call, a text, an e-mail, a webpage request, or a video stream the carrier transmits, making that delivery isn’t an editorial function.

But whatever standard we use, the language in Marsh still resonates. It doesn’t matter if the owner of a network devoted to public use is a private company. Individuals, businesses, and our entire society still have a paramount “interest in the functioning of the [Internet] in such manner that the channels of communication remain free.”  And Marsh still resonates despite the later cases limiting it, because – thankfully – we’re not talking about protecting Internet users here from the police power of private ISPs.

So we need not find that individual speakers have First Amendment rights per se against a broadband Internet access provider with a veritable monopoly over this privately owned “public sidewalk.” All we must do is recognize that the conversation deserves protection against undue interference by public officials and private parties alike.

That’s the reason we can and should regulate the “sidewalk,” in Crawford’s parlance. It’s different than the conversation occurring on it, and we need that pathway to remain free if those conversations are to occur.