Craig Parshall, General Counsel


Internet Freedom at Issue

October 28, 2009

On October 22nd, the FCC formally launched its rule-making process to consider what regulations, if any, should be adopted to insure an “Open Internet.” Noting that the broadband Internet access service providers (ISP’s) are not “government actors,” the FCC’s notice of proposed rules indicated that the First Amendment does not “directly” apply to ISP’s. Translation: The FCC is implying that free speech rights of consumers and users of the Internet may be imperiled without some federal oversight. This would suggest that the Commission’s impetus is motivated at least in part by concerns to avoid content-discrimination over the web. The actual rule proposed by the FCC states that, “subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.” But what does “non-discriminatory” mean? The FCC gives only one explanation, namely that different prices among end users or content providers could not be charged by broadband access service providers unless they could be justified by the fact that the “different prices [are] for different services.” But what about discrimination that occurs over the web because a broadband provider is pressured by a secular special interest group to prohibit certain Christian Internet viewpoints? In other words, does the FCC proposal envision a prohibition against viewpoint or content discrimination over the web regarding otherwise lawful viewpoints or content? The FCC’s 89-page notice contains only one sentence on that subject, where it indicates that an ISP “singling out” for discrimination certain viewpoints or content over the web would not be deemed to be a “reasonable” form of “network management,” and therefore could presumably be grounds for FCC interdiction. Alternatively, there is also the question of whether a federal agency should be exercising this kind of power over such an all-encompassing public communications platform? Here at NRB we are watching this proceeding very closely, particularly in view of the complex and profound questions raised by this inquiry that will likely impact Christian communicators who use the Internet to deliver Gospel content.

Out of the five Commissioners, Chairman Julius Genachowski and the other two Democrat appointees, Michael Copps and Mignon Clyburn, are supportive of the rule-making proposal. The two Republican appointees, Robert McDowell and Meredith Attwell Baker, are currently skeptical, opining that there is a lack of statutory basis for the action. They have also noted that there is a lack of clear harm occurring presently regarding web access or control that would necessitate federal intervention by the Commission. The FCC has set January 14, 2010, as the deadline for the first Comment period for formal reactions to its proposals.