July 24, 2014
By Craig L. Parshall, Senior Vice President & General Counsel
Last week, in the detailed comment that we filed with the Federal Communications Commission (FCC) on the issue of Internet regulation, this question was raised: What would it profit America to gain the world of digital innovation if, in the process, we end up losing our First Amendment soul?
The FCC is entertaining a plan for Internet governance that places high priority on protecting and encouraging big Internet-based companies like Google, Apple, and Facebook while the Commission has made only occasional reference to how that plan would impact the free expression rights of citizen users of the Web.
To boil this issue down, let's use a simple illustration. In the past, the Internet has been described as a communications and information "superhighway." Imagine that you and I want to travel that information highway, along with countless others. To get on that highway we need to pay a fee to a telecom company like Comcast, or AT&T, or Verizon for Internet service, which is like paying a toll at a toll booth. The FCC calls those "toll booth" companies "Broadband Providers." They are already subject to FCC regulations regarding how they provide telephone service, but now the FCC is grappling with how to regulate them as providers of access to the Internet, and how much they should be regulated.
Once we are on the Internet "highway," we may want to take a number of ramps to visit towns along the way, which are accessed only by this one, single Internet highway. We may want to access the city of Apple, for instance, to use their iPhone and to purchase apps from their App Store. Or, we might want to take the ramp to Google to use their search engine, or to Facebook to set up and utilize our own Facebook page and connect with others who use Facebook too. These media technology companies that are established along the edge of the Internet highway and that produce web-based digital products, services, and applications are called "Edge Providers." Of course we know we have to pay a fee to take the ramp to these Edge Providers and we are fine with that. But suddenly, we see a problem. We notice a sign at the city limits of Facebook, Google, and Apple that reads: "Some Christian ideas, and certain other viewpoints are not welcome here." The fact is, that these three powerful "Edge Providers" have a long history of committing discrimination against certain, otherwise lawful, viewpoints and have censored those viewpoints (often Christian or conservative ones) from their devices, their applications, and their services. NRB's John Milton Project for Free Speech has, for several years, documented this trend.
The FCC appears to be poised to over-regulate the Broadband Providers at the toll booth to the Internet, regulating the way that they do business with the Edge Providers, including limiting the way that the Broadband Providers might provide "fast lane" priority to some Edge Providers while limiting the rest of us to slow lanes of Internet service. At the same time, the FCC, ever ready to stimulate further innovation from the Edge Providers, also seems ready to give them a complete pass from any regulatory limits whatsoever.
Please note that NRB has no appetite for increased federal regulation. But what we have said in last week's filed comment is this: Before the FCC continues on this project, it needs to do a study to ensure, first, that this tampering with the Internet will not create a monopoly consisting of a small handful of even bigger, more powerful media tech companies (Edge Providers), thus stifling, rather than stimulating free enterprise and innovation. Second, the FCC needs to study the policies and practices of big Edge Providers like Facebook, Google, and Apple to see how willing they are to voluntarily protect the free speech, religious freedom, and free press interests of citizens who use their devices and services.
In the end, if we are allowed to travel the Internet highway, but cannot freely and fully use the Edge Providers along the way without being censored, then doesn't that make the Internet a highway to nowhere?