Do ISPs have First Amendment rights? Net neutrality vs. VoIP connectivity

As the US Federal Communications Commission continues to consider regulations that would limit an Internet service provider's ability to restrict customers' access to specific services in the name of traffic management, it is now no longer possible to foresee an outcome to the debate without someone claiming that constitutional rights are being violated somewhere.

"It should not be lost on anyone that the strongest and loudest voices for net neutrality rules often cloak their agenda as advancing the First Amendment or, just as frequently, First Amendment 'values,'" stated National Cable & Telecommunications Association President Kyle McSlarrow, in a speech last week to The Media Institute in Washington. "But urging the government to impose rules that supposedly promote First Amendment values is too often used to justify regulations that instead threaten First Amendment rights. By its plain terms and history, the First Amendment is a limitation on government power, not an empowerment of government. Making these arguments is, ironically, almost proof that First Amendment rights are being implicated."

National Cable and Telecommunications Association (NCTA) President & CEO Kyle McSlarrow, in a speech to The Media Institute in 2005. [Photo credit: The Media Institute]

McSlarrow is referring to arguments from net neutrality advocates in recent months that proposed FCC regulations, limiting ISPs' methods in imposing traffic management techniques, would help ensure customers' First Amendment rights. (Those regulations are likely to come up again during the FCC's open hearing today.) In summary, advocates tend to argue than whenever an ISP (such as Comcast, one of the biggest entities represented by the NCTA) restricts Internet access based on the nature of an application (for instance, BitTorrent), it makes a judgment on the context of the communication that takes place on that service -- thus restricting users' rights to free speech.

The counter-argument is that the proposed regulations (or, more accurately, the current interpretation of them) would unfairly restrain ISPs from being able to offer tiered services -- to give one class of Internet customer a different price than another. That may only seem unfair on the surface, if we're thinking only in terms of Web services. But increasingly, voice traffic (VoIP) is becoming a principal element of the Internet, competing directly against wireless and wireline telephone. Conceivably, regulations restricting ISPs to offering only services and prices based on bandwidth only, rather than category, would force them to price VoIP service as though it were offered on the Web -- which could render VoIP less competitive against traditional telephone.

The showdown between phone and Internet services for communication was brought further to the forefront this week by two major developments, the first of which is the byproduct of news of the next Google Phone.

The Big Google Monkey Wrench

If information published in The Wall Street Journal this week is, as many suspect, intentionally leaked and mostly accurate, then the unlocked nature of the device -- based on the HTC Nexus One chassis -- coupled with Google's increased investment in its Google Voice project, suggests that customers could choose to use the device for VoIP only. That is, they could have a phone and a phone number without subscribing to either a wireline or wireless carrier at all.

US #2 carrier AT&T has already called out Google earlier this fall for attempting to build a telecommunications empire, while bypassing telecom regulations under the guise of an Internet service. The two classes of service are regulated separately under US law.

A Google Voice-endowed, "Chrome-on-Android"-equipped, VoIP-only Nexus One phone could be a competitive option for some consumers, assuming for now that they only travel between airports, Starbucks, and Wi-Fi hot spots.

In a post yesterday to the Technology for Mortals blog, Justin James wrote, "By offering a choice of carriers, Google is basically saying the cell carrier is a 'dumb pipe. The only factors left in your choice of carrier are customer service, price, and coverage. You no longer pick a carrier based on the phones they offer (AT&T and the iPhone benefit from this, Verizon usually suffers for it), you pick a phone that you want and then the carriers compete with each other to get your business based on their ability to be a good 'dumb pipe.'"

But Google itself may be a competitor here too, with the telecom equivalent of the "public option" in the health care bill: It could provide a VoIP-only plan, while also paving the way for other VoIP players such as Vonage to compete as well. The competitiveness of this plan, however, depends on ISPs' ability to price Internet service competitively -- another problem which has AT&T throwing up its hands in confusion.

In 2005, the FCC fined ISPs that blocked VoIP traffic; and FCC Chairman Julius Genachowski still refers to that affair in explaining his belief that Internet pipelines should be kept open. As Genachowski stated earlier this year, "The Internet must continue to allow users to decide what content and applications succeed." But now that there may be some revenue in ISPs discounting high-bandwidth VoIP services, the situation has reversed itself: ISPs may be in a position to want to charge competitively for VoIP service, some of whose profit goes to them.

So now, the NCTA's McSlarrow has tweaked his 2007 argument with a bit of VoIP, saying that if the government prevents an ISP from enabling tiered service for applications such as VoIP, it's restricting communications...and thus endangering free speech.

"Almost every net neutrality proposal would seek to control how an ISP affects the delivery of Internet content or applications as it reaches its customers," stated McSlarrow last week. He went on to call this type of control "forced speech" -- a way for government not only to dictate what applications ISPs must provide for "open" fees, but to specify those applications ISPs can and cannot provide.

"Beyond the forced speech First Amendment implications...net neutrality rules also could infringe First Amendment rights because they could prevent providers from delivering their traditional multichannel video programming services or new services that are separate and distinct from their Internet access service," the head of the NCTA continued. "While the FCC's [Notice of Proposed Rule Making] acknowledges the need to carve out 'managed' or 'specialized' services from the scope of any new rules, it also expresses concerns that 'the growth of managed or specialized services might supplant or otherwise negatively affect the open Internet.' Meaning what? Well, the strong implication is some kind of guaranteed amount of bandwidth capacity for services the government deems important. But in this case, the FCC is not engaged in the allocation of the public airwaves. The bandwidth we're talking about is capacity on private transmission facilities constructed by ISPs. Imposing regulations that prevent providers from using 'too much' capacity for speech-related services not even associated with Internet access should cause all sorts of First Amendment and Fifth Amendment Takings alarm bells to go off."

Next: Your set-top box as a phone...