First amendment common sense

Harvard Law Review

Volumn 127, Issue 8, 2014, Pages 2343-2391

  Crawford, Susan ^a  

^a YESHIVA UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 84902985408     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (267)

1. 740 F.3d 623 (D.C. Cir. 2014).
2. Joint Brief for Verizon and MetroPCS at 42-49, Verizon, 740 F.3d 623 (No. 11-1355).
3. Id. at 44 ("The Order's broad 'prophylactic rules' infringe broadband providers' protected speech rights. They strip providers of control over which speech they transmit and how they transmit it, and they compel the carriage of others' speech." (italics omitted)). I participated in an amicus brief challenging the First Amendment assertions made by Verizon. See Brief of Amici Curiae Reed Hundt, Tyrone Brown, Michael Copps, Nicholas Johnson, Susan Crawford, and the National Association of Telecommunications Officers and Advisors in Support of Appellee, Veri- zon, 740 F.3d 623 (No. 11-1355) [hereinafter Brief of Amici Curiae Reed Hundt et al. in Support of Appellee].
4. See Joint Brief for Verizon and Metro PCS, supra note 2, at 43;
5. Press Release, Verizon, Verizon Reiterates Its Commitment to the Open Internet (Jan. 14, 2014), archived at http://perma.cc/KY2B-WQDK.
6. Comments of the National Cable & Telecommunications Ass'n at 32, Framework for Broadband Internet Service, GN Docket No. 10-127 (Fed. Commc'ns Comm'n July 15, 2010); see also Comments of the National Cable & Telecommunications Ass'n at 53, Preserving the Open Internet Broadband Industry Practices, GN Docket No. 09-191 (Fed. Commc'ns Comm'n Jan. 14, 2010) [hereinafter Jan. 14, 2010 Comments of the National Cable & Telecommunications Ass'n] ("[B]ecause the Commission is singling out particular speech businesses for specific regulation... it bears a high burden of justification.").
7. Paul Barbagallo, Verizon First Amendment Challenge of Net Neutrality Tests Century of Regulation, BLOOMBERG BNA (Jan. 24, 2013), http://www.bna.com/verizon-first-amendment-n17179872014, archived at http://perma.cc/4HW5-RC7S ("FCC Open Internet rules are really 'compelled access' mandates, similar to the Florida right-of-reply statute overturned in Tornillo." (quoting Randolph May, President of Free State Foundation)). The Free State Foundation, Tech- Freedom, the Competitive Enterprise Institute, and the Cato Institute jointly filed an amicus brief in Verizon outlining the claim that the Order "compels speech by forcing Internet service provid- ers to post, send, and allow access to nearly all types of content, even if a broadband provider pre- fers not to transmit such content." Brief Amici Curiae of TechFreedom, the Competitive Enter- prise Institute, the Free State Foundation, and the Cato Institute in Support of Appellant at 11, Verizon, 740 F.3d 623 (No. 11-1355).
8. Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.).
9. As I explain later in this Article, the cable companies (in particular, Comcast and Time Warner Cable) dominate the wired market for high-capacity, high-speed Internet access in Ameri- ca through a series of local monopoly providers. Verizon and AT&T focus their efforts on the wireless market, where their profits are greater than they are in the wired marketplace for Inter- net access. "Providers," in this sentence, refers collectively to Comcast, Time Warner Cable, Veri- zon, and AT&T. The Internet access services of all of these entities are covered by the Open In- ternet Rule. Although Verizon is the nominal litigant in the D.C. Circuit case examined here, its arguments have been echoed by the cable industry, and I have no reason to believe that AT&T disagrees with Verizon's claims. Indeed, in January 2014, AT&T launched a controversial new Sponsored Data plan, requiring content providers to pay to avoid usage of their applications counting against the caps imposed by AT&T on subscribers, raising the economic issues discussed in this Article. See Press Release, AT&T, AT&T Introduces Sponsored Data for Mobile Data Subscribers and Businesses (Jan. 6, 2014), archived at http://perma.cc/U42X-CJ6W.
10. 547 U.S. 47 (2006). At issue in FAIR was the constitutionality of the Solomon Amendment,
11. U.S.C. § 983 (2012), which required the Secretary of Defense to withhold funding from institu- tions of higher learning if they refused to provide military recruiters with the same access to stu- dents and campus facilities as other prospective employers. Id. § 983(b). The Supreme Court unanimously held that the requirements of the Amendment did not amount to compelled speech. FAIR, 547 U.S. at 65, 70.
12. 512 U.S. 622 (1994) (upholding the must-carry requirements in the Cable Television Con- sumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (codified as amended in scattered sections of 47 U.S.C.), (1992 Cable Act), which obligated cable companies to carry the signals of certain local broadcast stations). In Turner I, the Supreme Court applied heightened First Amendment scrutiny to the must-carry provisions of the 1992 Cable Act. 512
13. U.S. at 641. Turner Broadcasting System, Inc. had argued that the must-carry provisions amounted to compelled speech. Id. at 646.
14. Verizon, 730 F.3d at 634.
15. Pub. L. No. 104-104, 110 Stat. 56 (codified as amended in scattered sections of 47 U.S.C.).
16. See Joe Flint, Reps. Walden and Upton Pushing for New Communications Act, L.A. TIMES (Dec. 3, 2013), http://articles.latimes.com/2013/dec/03/entertainment/la-et-ct-reps-walden-and-upton-pushing-for-new-communications-act-20131203, archived at http://perma.cc/M4KC-MEL5.
17. Joint Brief for Verizon and MetroPCS, supra note 2, at 14 (quoting Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1340-41 (D.C. Cir. 2002)).
18. See generally Tamara R. Piety, BRANDISHING THE FIRST AMENDMENT (2012).
19. Preserving the Open Internet, 76 Fed. Reg. 59,192 (Sept. 23, 2011).
20. Id. at 59,205. The rules required providers of both fixed and mobile Internet access to pub- licly disclose information about the nature of the services they provide, id. at 59,203; obliged fixed (but not mobile) providers not to "unreasonably discriminate" in transmitting traffic, id. at 59,205, and stated that "it is unlikely" that any "pay for priority" arrangements, id. at 59,207, (a "commercial arrangement between a broadband provider and a third party to directly or indirectly favor some traffic over other traffic," id. at 59,206) "would satisfy the 'no unreasonable discrimination' standard," id. at 59,207; and included "no blocking" provisions for both fixed and mobile provid- ers, id. at 59,205 ("Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful Web sites, or block applications that compete with their voice or video telephony services" Id. at 59,192.). For fixed providers, the rules stated that charging "edge providers... for delivering traffic to or carry- ing traffic from the broadband provider's end-user customers" would violate the no-blocking rule to the extent the content or application provider could avoid being blocked only by paying. Id. at 59,205. Verizon's lawsuit challenged the FCC's legal authority to adopt all of these rules.
21. Joint Brief for Verizon and MetroPCS, supra note 2, at 12. 19 Jan. 14, 2010 Comments of the National Cable & Telecommunications Ass'n
22. supra note 5, at 64.
23. Verizon and the other providers (and the FCC) routinely use the term "broadband." I will use the term "high-speed Internet access." This is not just a semantic quibble; the providers' goal is to have the discretion to offer a managed service that uses the Internet Protocol but is not the same as nondiscriminatory Internet access. To accept the use of the term "broadband" is to decide the question asked by this Article: should general-purpose U.S. network providers be considered to be the same as newspaper editors or pay television providers, choosing and editing the digital communications viewed by Americans?
24. Susan P. Crawford, Transporting Communications, 89 B.U. L. REV. 871, 891 (2009).
25. United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 226 (D.D.C. 1982).
26. I describe this history in detail in Crawford, supra note 21.
27. The Act includes a general mandate to provide service under prices, terms, and conditions that are not "unjust or unreasonable." 47 U.S.C. §§ 201(b), 202(a) (2006).
28. See 47 C.F.R. § 68 (1998).
29. 47 U.S.C. § 251(c)(2) (2006).
30. Barbara Esbin, Internet over Cable: Defining the Future in Terms of the Past 18 & n.88 (Fed. Commc'ns Comm'n Office of Plans and Policy, Working Paper No. 30, 1998).
31. AT&T Corp. v. City of Portland, 216 F.3d 871, 878 (9th Cir. 2000) (defining cable operators providing high-speed Internet access as "telecommunications" providers under the Telecommunications Act of 1996). The Ninth Circuit was reacting to rules imposed by localities requiring providers to permit "open access" to ISPs - basic transport to which the ISPs could connect - as a condition of holding a municipal cable franchise.
32. Id. at 874-75.
33. See infra Part II, pp. 2365-78.
34. See United States v. Sw. Cable Co., 392 U.S. 157, 165-68, 178 (1968).
35. Pub. L. No. 98-549, 98 Stat. 2779 (codified as amended in scattered sections of 47 U.S.C.).
36. See Thomas W. Hazlett, Duopolistic Competition in Cable Television: Implications for Public Policy, 7 YALE J. ON REG. 65, 89 (1990).
37. See Time Warner Entm't Co. v. FCC, 56 F.3d 151, 179 (D.C. Cir. 1995) (opinion of Ran- dolph, J.).
38. Pub. L. No. 102-385, 106 Stat. 1460 (codified as amended in scattered sections of 47 U.S.C.). The statutory framework for cable regulation was first established by the 1984 Cable Act. See Cable Communications Policy Act of 1984 § 2, 98 Stat. at 2780 (adding Title VI to the Communications Act of 1934, 48 Stat. 1064 (codified as amended at scattered sections of 47 U.S.C.)). Title VI was further amended by the 1992 Cable Act. See, e.g., Cable Television Consumer Protection and Competition Act of 1992 § 4, 106 Stat. at 1471.
39. See Time Warner, 56 F.3d at 179 (opinion of Randolph, J.).
40. In April 1995, the National Science Foundation (NSF) policy dictating that the National Science Foundation Network backbone not be used for purposes "not in support of Research and Education," Esbin, supra note 27, at 9 (internal quotation marks omitted), was terminated with the end of NSF funding. See id. at 10. The money recovered was redistributed to regional net- works to buy connectivity from private nationwide Internet backbones. Id. This event, together with the Netscape IPO on August 9, 1995, is commonly understood to mark the advent of the commercial Internet in the United States.
41. Adam Lashinsky, Remembering Netscape: The Birth of the Web, CNN MONEY (July 25, 2005), http://money.cnn.com/magazines/fortune/fortune_archive/2005/07/25/8266639/, archived at http://perma.cc/HC7K-Z6C5.
42. See Susan P. Crawford, CAPTIVE AUDIENCE 49 (2013).
43. See generally Telecommunications Act of 1996, tit. II, 110 Stat. at 107-14 (codified as amended in scattered sections of 47 U.S.C.).
44. See Deployment of Wireline Servs. Offering Advanced Telecomms. Capability, 13 FCC Rcd. 24,011, 24,016-17 (1998) (discussing the classification of DSL services under the Telecommunications Act of 1996).
45. In 1999, the then-Chairman of the FCC, William E. Kennard, came out strongly against the regulation of high-speed Internet access, saying that regulation might stunt investment, research, and development. William E. Kennard, Chairman, Fed. Commc'ns Comm'n, The Road Not Taken: Building a Broadband Future for America, Remarks Before the National Cable Television Association (June 15, 1999), archived at http://perma.cc/L4S2-T57M.
46. AT&T Corp. v. City of Portland, 216 F.3d 871, 876-77 (9th Cir. 2000).
47. Inquiry Concerning High-Speed Access to Internet over Cable & Other Facilities, 17 FCC Rcd. 4798, 4802, 4819 (2002).
48. Id. at 4819.
49. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 979 (2005).
50. See id. at 1005-20 (Scalia, J., dissenting).
51. Id. at 1002-03 (majority opinion).
52. See Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 20 FCC Rcd. 14,853, 14,899-900 (2005);
53. Press Release, Fed. Commc'ns Comm'n, FCC Eliminates Mandated Sharing Requirement on Incumbents' Wireline Broadband Internet Access Services (Aug. 5, 2005), archived at http://perma.cc/D2WV-FH6W.
54. See Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 20 FCC Rcd. at 14,879-80, 14,887.
55. INDUS. ANALYSIS AND TECH. DIV., FED. COMMC'NS COMM'N, INTERNET ACCESS SERVICES: STATUS AS OF DECEMBER 31, 2012, at 4 n.5 (2013), archived at http://perma.cc /J3SY-W33N [hereinafter INTERNET ACCESS SERVICES AS OF DEC. 2012] ("The Commission [has] benchmarked broadband as a transmission service that enables an end user actually to download Internet content at 4 Mbps and to upload Internet content at 1 Mbps over the service provider's network.").
56. See Craig Moffett, Nicholas Del Deo & Amelia Chan, BERNSTEINRESEARCH, U.S. TELECOM, CABLE & SATELLITE 1 (2013).
57. CRAWFORD SP, supra note 38, at 46.
58. See infra pp. 2356-57.
59. MOFFETTNATHANSON RESEARCH, TAKEAWAYS FROM THE MOFFETTNATHANSON BROADBAND POLICY SUMMIT 5 (2013).
60. See CRAWFORD SP, supra note 38, at 157.
61. Beginning in August 2005, the FCC classified high-speed Internet access as an "information service" covered by its assertion of ancillary authority under Title I of the Telecommunications Act of 1996.
62. Appropriate Framework for Broadband Access to the Internet over Wireline Facili- ties, 20 FCC Rcd. 14,853, 14,862-65 (2005);
63. Appropriate Regulatory Treatment for Broadband Access to the Internet over Wireless Networks, 22 FCC Rcd. 5901, 5909-11 (2007);
64. see also In- quiry Concerning High-Speed Access to the Internet over Cable & Other Facilities, 17 FCC Rcd. 4798, 4822-23 (2002). Also in August 2005, the FCC adopted a policy statement (but not a formal binding rule) regarding high-speed Internet access service.
65. Appropriate Framework for Broad- band Access to the Internet over Wireline Facilities, 20 FCC Rcd. 14986 (2005);
66. Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like - Should Federal Agencies Use Them to Bind the Public?, 41 DUKE L.J. 1311, 1314 & n.7 (1992) (explain- ing that "policy statements" do not have force of law absent notice and comment process man- dated by Congress in the APA). The FCC then ordered Comcast to cease activities that "r[an] afoul of" its policy statement. Formal Complaint of Free Press & Pub. Knowledge Against Com- cast Corp. for Secretly Degrading Peer-to-Peer Applications, 23 FCC Rcd. 13,028, 13,050 (2008). The D.C. Circuit vacated the order because the FCC had failed to demonstrate that it had "ancil- lary" authority under Title I of the Telecommunications Act of 1996 to adopt it. Comcast Corp. v. FCC, 600 F.3d 642, 644 (D.C. Cir. 2010). The FCC then launched a proceeding aimed at reclassi- fying high-speed Internet access as a "telecommunications service" subject to Title II of the Tele- communications Act of 1996. Framework for Broadband Internet Service, 25 FCC Rcd. 7866, 7866-67 (2010). Following the lobbying frenzy that ensued, the FCC adopted the Order chal- lenged by Verizon under, again, an assertion of ancillary authority under Title I of the Telecom- munications Act of 1996. Preserving the Open Internet, 25 FCC Rcd. 17,905 (2010), 76 Fed. Reg. 59,192 (Sept. 23, 2011) (the Order). On September 9, 2013, the D.C. Circuit heard argument in Verizon, Verizon's challenge to the Order.
67. From 1997 to 1999, the major cable operators executed a series of subscriber swaps and buyouts aimed at "clustering" (regionally concentrating) their operations. Somewhere between 40 and 50% of subscribers changed hands, with the result that by 2000 about 60% of cable subscrib- ers were located in regional clusters controlled by a single operator.
68. Brian J.M. Quinn, Asset Spe- cificity and Transaction Structures: A Case Study of @Home Corporation, 15 HARV. NEGOT. L. REV. 77, 109 & n.112 (2010). Today, Comcast subscribers are "clustered in the mid-Atlantic, Chi- cago, Denver, and Northern California," while Time Warner Cable's subscribers are "clustered in... New York State (including New York City), the Carolinas, Ohio, Southern California (includ- ing Los Angeles), and Texas."
69. Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 28 FCC Rcd. 10496, 10540 (2013) (the FCC redacts specifics of this clustering). Where a cable operator has clustered its operations, it dominates the pay tele- vision market (and, thus, the market for bundled cable modem and pay television services). For example, as of mid-2010, Comcast maintained at least a 40% share in 13 of the 20 largest multi- channel video programming distributor markets in the United States, ranging from as low as 43% in Houston to as high as 62% in Chicago and 67% in Philadelphia. See Applications of Comcast Corp., Gen. Elec. Co. & NBC Universal, Inc. for Consent to Assign Licenses & Transfer Control of Licensees, 26 FCC Rcd. 4238, 4285 & n.275 (2011). Comcast, with about 22 million subscrib- ers, and Time Warner Cable, with about 12 million, collectively control the pay television market in 20 of the nation's 25 largest metro areas. See
70. Andrew Hart, Comcast to Buy Time Warner Ca- ble, HUFFINGTON POST (Feb. 13, 2014, 7:46 AM), http://www.huffingtonpost.com/2014/02/13/comcast-time-warner_n_4778175.html, archived at http://perma.cc/3M74-AT6C
71. Henry Mance, Time Warner Cable Deal Extends Comcast's Geographic Reach, FIN. TIMES (Feb. 13, 2014), http://www.ft.com/cms/s/0/6f747f4a-94a1-11e3-9146-00144feab7de.html, archived at http://perma.cc/T7FX-Z2KN.
72. Cable accounts for most net additions in high-speed Internet access subscriptions, as sub- scribers flee DSL. In the third quarter of 2013, 84% of the net high-speed Internet access addi- tions for the quarter came from leading cable companies. Press Release, Leichtman Research Grp., About 520,000 Add Broadband in the Third Quarter of 2013 (Nov. 19, 2013), archived at http://perma.cc/M3MK-UZNC.
73. For all of 2012, 88% of net additions went to the cable industry. Cable Leads Growth in US Broadband Market in 2012, TELECOMPAPER (Mar. 19, 2013, 5:05 PM), http://www.telecompaper.com/news/cable-leads-growth-in-us-broadband-market-in-2012--932159, archived at http://perma.cc/9YAK-H297.
74. See Moffett C, Del Deo N & Chan A, supra note 51, at 1-2 (noting that between 78% and 82% of the country has only one provider (cable) that can provide download speeds greater than
75. 25 Mbps). About 9% of the United States is unserved by any fixed connection. See
76. MOFFETTRESEARCH LLC, CABLE & SATELLITE BROADCASTING: THE NEXT TEN YEARS 42 (2013). In 42% of the country, cable, which is capable of being upgraded to 3 gigabytes per second (Gbps), has no competition other than legacy DSL services (1-10 Mbps) that are at least 100 times slower than cable. Id. In 35% of the country, cable has no competition other than fiber-to-the-node services (FTTN), id., whose last portion is made up of copper wires; with tech- nical squeezes ("pair bonding" and "vectoring"), these connections may be able to reach just 45 Mbps downloads that will then be shared between data and television. With a choice between FTTN and cable at 1-3 Gbps, consumers choose cable about 60% of the time. See id. In just 14% of America, cable companies face real competition from telco fiber to the home (FTTH) sold by Verizon. See
77. MOFFETTNATHANSON RESEARCH, supra note 54, at 5. In short, cable has a monopoly in the 42% of the country covered by legacy DSL and has a large advantage in the 35% covered by FTTN. See id. at 4-5;
78. see also FED. COMMC'NS COMM'N, CONNECTING AMERICA: THE NATIONAL BROADBAND PLAN 33-52 (2010), archived at http://perma.cc/Q8MB-9XGW. The FCC's latest numbers state that 83.8% of fixed connections of at least 10 Mbps download are cable connections; 14.8% are FTTH. INTERNET ACCESS SERVICES AS OF DEC. 2012, supra note 50, at 28.
79. See MOFFETTNATHANSON RESEARCH, supra note 54, at 5.
80. I explain the physics of this in Susan P. Crawford, The Looming Cable Monopoly, YALE L. & POL'Y REV. INTER ALIA (June 1, 2010, 2:30 PM), http://ylpr.yale.edu/inter_alia/looming-cable-monopoly. Craig Moffett, an industry analyst, asserts that cable capacity is 150,000 times that of wireless capacity; both depend on spectrum, but cable has many more frequencies inside its wires and those transmissions are not threatened by interference.
81. MOFFETTNATHANSON RE- SEARCH, supra note 54, at 7. We have just about exhausted the capacity of wireless transmis- sions to carry data; we have not yet approached the limits of fiber optic systems, which can carry infinitely more data than a wireless transmission. See id. at 6-7. Satellite systems continue to be burdened by the fact that they are 22,500 miles away from Earth. Id. at 23. Latency is a signifi- cant issue for satellite access, as is expense, and satellite connections often top out at 12 Mbps download speeds. Id. at 23-24.
82. MOFFETTNATHANSON RESEARCH, supra note 54, at 6.
83. Id. at 22.
84. As of December 2012, nearly 60% of mobile connections in the United States "were slower than 3 Mbps in the downstream direction" (meaning data flowing to, rather than from, a user's device). INTERNET ACCESS SERVICES AS OF DEC. 2012, supra note 50, at 7.
85. John B. Horrigan, TECHNET, BROADBAND ADOPTION IN 2012, at 4 (2012), archived at http://perma.cc/RAC3-A5W6.
86. As of the end of the first quarter of 2013, Verizon's share was 37.2%, AT&T's was 27.9%, and the two combined to total 65.1% of the smartphone market. Robert Nazarian, T-Mobile Los- es Market Share While Verizon and AT&T Continue to Dominate, TALK ANDROID (Apr. 30, 2013, 9:00 AM), http://www.talkandroid.com/159929-t-mobile-loses-market-share-while-verizon-and-att-continue-to-dominate/, archived at http://perma.cc/W5EN-B79M.
87. Press Release, Verizon, Verizon Reports Strong Revenue and Customer Growth for Verizon Wireless and FiOS Services in 4Q 2012 (Jan. 22, 2013), archived at http://perma.cc/UEX4-FZ6L.
88. Nazarian R, supra note 70;
89. Grading the Top 10 U.S. Carriers in the Fourth Quarter of 2012, FIERCEWIRELESS (Mar. 15, 2013), http://www.fiercewireless.com/special-reports/grading-top-10-us-carriers-fourth-quarter-2012, archived at http://perma.cc/4XJ2-YPCB.
90. See Tero Kuittinen, Are AT&T and Verizon Finally Going Too Far?, FORBES (Aug. 24, 2012, 2:07 PM), http://www.forbes.com/sites/terokuittinen/2012/08/24/are-att-and-verizon-finally-going-too-far/, archived at http://perma.cc/RMN9-6KJH.
91. See Verizon Wireless with XFINITY Triple Play from Comcast, COMCAST, http://www.comcast.com/verizon-wireless.html (last visited May 10, 2014), archived at http://perma.cc/TG48-P826;
92. Karl Bode, Cox, Time Warner Cable Expand Verizon Wireless Partnership, DSLREPORTS (Oct. 23, 2012, 7:55 AM), http://www.dslreports.com/shownews/Cox-Time-Warner-Cable-Expand-Verizon-Wireless-Partnership-121744?nocomment=1, archived at http:// perma.cc/P6TX-4XA4.
93. In August 2012, the FCC approved Verizon Wireless's purchase of spectrum from several cable companies. As part of the spectrum transfer, Verizon Wireless entered into commercial agreements with the respective cable companies that, among other things, permitted the cross- selling of services. See Applications of Cellco P'ship d/b/a Verizon Wireless & SpectrumCo LLC & Cox TMI, LLC for Consent to Assign AWS-1 Licenses, 27 FCC Rcd. 10,698, 10,700, 10,750-53 (2012).
94. See Press Release, supra note 58.
95. MOFFETTNATHANSON RESEARCH, supra note 54, at 4.
96. How Fast Should My Internet Connection Be to Watch Netflix?, NETFLIX, https://support.netflix.com/en/node/306#gsc.tab=0 (last visited May 10, 2014).
97. See FED. COMMC'NS COMM'N, INTERNET ACCESS SERVICES: STATUS AS OF JUNE 30, 2012, at 30 tbl.10 (2013), archived at http://perma.cc/S3KN-3UW6 [hereinafter INTERNET ACCESS SERVICES AS OF JUNE 2012].
98. Id. at 27.
99. Author's own calculations, calculated using AT&T, INVESTOR BRIEFING: STRONG GROWTH IN WIRELESS & U-VERSE DRIVES REVENUE AND ADJUSTED EARNINGS PER SHARE GROWTH IN AT&T'S FOURTH-QUARTER RESULTS 8-10 (2013) [hereinafter AT&T'S FOURTH-QUARTER RESULTS]; Press Release, supra note 71.
100. Author's own calculations, calculated using AT&T, AT&T FINANCIAL & OPERATIONAL RESULTS (2014), archived at http://perma.cc/EYB4-PVPR;
101. AT&T'S FOURTH-QUARTER RE- SULTS, supra note 83;
102. VERIZON COMMC'NS, INVESTOR QUARTERLY FOURTH QUARTER 14 (2013), archived at http://perma.cc/Q4SK-LHSZ. As of 2012, about a third of U.S. households subscribing to fixed high-speed Internet access took DSL; almost 60% of subscribing households had signed up for cable. INTERNET ACCESS SERVICES AS OF JUNE 2012, supra note 79, at 30 tbl.11.
103. Author's own calculations, calculated using Press Release, Leichtman Research Group, 2.7 Million Added Broadband from Top Cable and Telephone Companies in 2012 (Mar. 19, 2013), archived at http://perma.cc/F9B6-MT74.
104. See Joel Hruska, DOCSIS 3.0, Possible 100 Mbps Speeds Coming to Some Comcast Users in 2008, ARS TECHNICA (Nov. 30, 2007, 7:19 AM), http://arstechnica.com/gadgets/2007/11/docsis-3-0-possible-100mbps-speeds-coming-to-some-comcast-users-in-2008/, archived at http://perma.cc/467X-BBSB. DOCSIS 3.0 is a cable modem protocol that can provide speeds of 160 Mbps down and 120 Mbps up by combining multiple channels to stream data. See id.;
105. Iljitsch van Beijnum, Meet DOCSIS, Part 2: The Jump from 2.0 to 3.0, ARS TECHNICA (May 16, 2011, 2:00 PM), http://arstechnica.com/business/2011/05/meet-docsis-part-2-the-jump-from-20-to-30/, archived at http://perma.cc/B2GL-HVXQ.
106. Interestingly, Verizon sells asymmetric service - slower uploads than downloads - and a relatively slow speed of download, even though there is likely no cost component to selling a different service.
107. See Roger Cheng, Verizon to End Rollout of FiOS, WALL ST. J. (Mar. 30, 2010, 12:01 AM), http://online.wsj.com/news/articles/SB10001424052702303410404575151773432729614, archived at http://perma.cc/X8PT-M3PQ.
108. See Susan P. Crawford, The Communications Crisis in America, 5 HARV. L. & POL'Y REV. 245, 248 (2011). FiOS will exist in the Washington metro area, and in some parts of California, Florida, Massachusetts, New Jersey, New York, Pennsylvania, Rhode Island, Texas, and Virginia.
109. FiOS Coverage Areas & Availability, VERIZON, http://fios.verizon.com/fios-coverage.html (last visited May 10, 2014), archived at http://perma.cc/VV9Q-S2TS.
110. See Industry Data, NAT'L CABLE & TELECOMM. ASS'N, https://www.ncta.com/industry-data (last visited May 10, 2014), archived at http://perma.cc/LY5F-FRHZ.
111. MOFFETTNATHANSON RESEARCH, supra note 54.
112. MOFFETTNATHANSON RESEARCH, CHARTER Q3 2013 EARNINGS 1 (2013).
113. See Susan Crawford, Was That a Book Review?, 127 HARV. L. REV. F. 137, 139 (2014);
114. Karl Bode, AT&T Says 24 Mbps U-Verse Now Available Everywhere, DSL REPORTS (Mar. 29, 2010), http://www.dslreports.com/shownews/ATT-Says-24-Mbps-UVerse-Now-Available-Everywhere-107613, archived at http://perma.cc/XA55-RDYE. With a substantial investment in pair-bonding and vectoring, some of these FTTN connections may get up to 45 Mbps. But these connections will be highly distance sensitive and will still need to be shared between TV and data.
115. See Crawford SP, supra, at 139-40.
116. See Jon Brodkin, Why Comcast and Other Cable ISPs Aren't Selling You Gigabit Internet, (Dec. 1, 2013, 8:00 PM), http://arstechnica.com/information-technology/2013/12/why-comcast-and-other-cable-isps-arent-selling-you-gigabit-internet/, archived at http://perma.cc/BDH9-37P4.
117. See, e.g., MOFFETT C, DEL DEO N & CHAN A, supra note 51.
118. FED. COMMUNC'NS COMM'N, EIGHTH BROADBAND PROGRESS REPORT 60 n.351 (2012), archived at http://perma.cc/HXA6-FDHF;
119. John b. Horrigan, KNIGHT FOUND., ADOPTION OF INFORMATION & COMMUNICATIONS TECHNOLOGIES IN THE UNITED STATES: NARROWING GAPS, NEW CHALLENGES 10 (2013).
120. PEW RESEARCH CTR., HOME BROADBAND 2013, at 3 (2013), archived at http://perma.cc/D2Q5-XVDG.
121. See Laura Sydell, Class Trumps Race When It Comes to Internet Access, NPR (Jan. 7, 2014, 4:29 AM), http://www.npr.org/blogs/codeswitch/2014/01/07/260409016/class-trumps-race-when-it-comes-to-internet-access, archived at http://perma.cc/47US-JD8V.
122. See PEW RESEARCH CTR., supra note 98, at 5.
123. See LEMAY-YATES ASSOCS., INC., THE COST OF INCREMENTAL INTERNET TRANSIT BANDWIDTH IN THE LOCAL ACCESS CLOUD 30 (2011).
124. BERNSTEIN RESEARCH, U.S. TELECOMMUNICATIONS AND U.S. CABLE & SATELLITE: NATURE VERSUS NURTURE 44 (2012).
125. See INTERNET ACCESS SERVICES AS OF DEC. 2012, supra note 50, at 4 n.5.
126. Google Fiber will serve just 0.5% of Americans. MOFFETTRESEARCH LLC, supra note 59, at 12.
127. For a discussion of these issues, see Susan Crawford, Op-Ed, An Internet for Everybody, N.Y. TIMES, Apr. 11, 2010, at WK12.
128. Joint Brief for Verizon and MetroPCS, supra note 2, at 43.
129. Id. at 17.
130. Id. at 42 (quoting City of L.A. v. Preferred Commc'ns, Inc., 476 U.S. 488, 494 (1986)) (internal quotation marks omitted).
131. Id. at 43.
132. Id. (internal quotation marks omitted).
133. Id. at 43-44 (citations omitted).
134. Id. at 44.
135. Id. (quoting Preserving the Open Internet, 76 Fed. Reg. 59,192, 59,214 (Sept. 23, 2011)).
136. Id. at 44 (quoting Preserving the Open Internet, 76 Fed. Reg. at 59,193) (internal quotation marks omitted).
137. See id. at 44-45.
138. Id. at 45 n.13 (citing Turner I, 512 U.S. 622, 659 (1994)).
139. Id. at 45 (citing United States v. O'Brien, 391 U.S. 367, 377 (1968)).
140. Turner Broad. Sys., Inc. v. FCC (Turner II), 520 U.S. 180, 189 (1997) (citing O'Brien, 391 U.S. at 377); accord Cablevision Sys. Corp. v. FCC, 570 F.3d 83, 97 (2d Cir. 2009).
141. 418 U.S. 241 (1974).
142. Given the difficulty the FCC has in overseeing this industry, it may make sense as a first step for mayors in the United States to build a neutral ("dark," unlit) fiber infrastructure that would be controlled by each city but would not serve customers directly. With this wholesale fa- cility in place, new competitive FTTH providers could provide an array of competing services to homes and businesses. This model has been employed with great success in Stockholm. See gen- erally
143. Benoît Felten, DIFFRACTION ANALYSIS, STOCKHOLM'S STOKAB: A BLUEPRINT FOR UBIQUITOUS FIBER CONNECTIVITY? (2012), archived at http://perma.cc/9NNY-LNB2. Over time, federal policy would need to change in response to the actions of mayors.
144. Munn v. Illinois, 94 U.S. 113, 130 (1877) (internal quotation marks omitted).
145. "Public utility" refers to an industry that provides a homogenous commodity, such as elec- trical power or water, over a distribution network that it owns and operates. See
146. Thomas B. Nachbar, The Public Network, 17 COMMLAW CONSPECTUS 67, 108 (2008) ("[P]ublic utilities... are integrated firms that provide both a commodity and the network over which it is car- ried"). Although they may be privately owned, public utilities are regulated by the government in order to achieve uniformity in the quality and price of the commodity they offer, and to ensure the continued maintenance and expansion of their distribution network. Id. at 73-74. Public utilities are often franchised by the government, insulating them from competition in exchange for consent to regulation. Id. (noting that the franchise includes a duty to serve all who apply, may include a duty to expand service, and often is accompanied with the grant of a monopoly). "Common carrier" refers to publicly accessible entities charged with transporting people, goods, or communications from one point to another for a fee. Common carriers historically faced liability for losses and were required to make their services available to all similarly situated cus- tomers on equal terms. See
147. Barbara A. Cherry, How Elevation of Corporate Free Speech Rights Affects Legality of Network Neutrality, 63 FED. COMM. L.J. 591, 619 (2011);
148. Crawford S, supra note 21, at 878. The Telecommunications Act of 1996's definition of "common carrier" is circular. See 47 U.S.C. § 153(11) (2006 & Supp. V 2011) (defining a "common carrier" as "any person engaged as a common carrier for hire"). The Commission has interpreted this term to exclude providers of "information services," defined as "the offering of a capability for generating, acquiring, storing, transforming, processing... or making available information via telecommunications," id. § 153(24). See Appropriate Regulatory Treatment for Broadband Access to the Internet over Wireless Networks, 22 FCC Rcd. 5901, 5919 (2007). The more commonsense approach to this classification issue would be to say that high-speed Internet access providers that also sell pay television packages are selling both common carriage services and cable television; one entity can provide several different types of services.
149. Cherry BA, supra note 129, at 620.
150. Joseph D. Kearney & Thomas W. Merrill, The Great Transformation of Regulated Industries Law, 98 COLUM. L. REV. 1323, 1331 (1998).
151. See Edward A. Adler, Business Jurisprudence, 28 HARV. L. REV. 135, 154 (1914)
152. ("'[C]ommon... meant in this connection, 'open to public service.'");
153. Joseph H. Beale, Jr., The Carrier's Liability: Its History, 11 HARV. L. REV. 158, 163 (1897) ("From the earliest times certain tradesmen and artificers were treated in an exceptional way, on the ground that they were en- gaged in a 'common' or public occupation; and for a similar reason public officials were subjected to the same exceptional treatment. Such persons were innkeepers, victuallers, taverners, smiths, farriers, tailors, carriers, ferrymen, sheriffs, and gaolers." (footnotes omitted)).
154. Beale JH, supra note 132, at 163.
155. See Adler EA, supra note 132, at 157-60 ("In ordinary trades there ceased to be any need for a distinction between the common and the private exercise of a trade In the case of the carrier's trade, however, there were peculiar internal characteristics which brought it constantly before the courts." Id. at 157-58.).
156. 94 U.S. 113 (1877).
157. Id. at 126 ("[A person] may make a ferry for his own use or the use of his family, but not for the common use of all the king's subjects passing that way; because it doth in consequence tend to a common charge, and is become a thing of public interest and use, and every man for his passage pays a toll, which is a common charge, and every ferry ought to be under a public regulation, viz., that it give attendance at due times, keep a boat in due order, and take but reasonable toll; for if he fail in these he is finable." (quoting Matthew Hale, De Jure Maris, in 1 A COLLECTION OF TRACTS RELATIVE TO THE LAW OF ENGLAND 5, 6 (Francis Hargrave ed., 1787))); see also Budd v. New York, 143 U.S. 517, 545 (1892) (upholding regulation of grain elevators as "being incident to the business of transportation and to that of a common carrier, and thus of a quasi- public character").
158. Common carriers, like railroads, ferries, and taxi services, were regulable, as were grain ele- vators, cold-storage units, and stockyards. See German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 427 (1914) (Lamar, J., dissenting) ("The fact that rate-statutes, enacted and sustained since the adoption of constitutional government in this country, all had some reference to transportation or distribution, is a practical illustration of the accepted meaning of 'public use' when that phrase was first employed in American constitutions, and when turnpikes and carriers, wharfingers and ferrymen had rates, tolls and fares fixed by law."); State Pub. Utils. Comm'n v. Monarch Refriger- ating Co., 108 N.E. 716, 720 (Ill. 1915) (cold storage); Ratcliff v. Wichita Union Stockyards Co., 86 P. 150, 153 (Kan. 1906) (stockyards).
159. See, e.g., Tyson & Brother-United Theatre Ticket Offices, Inc. v. Banton, 273 U.S. 418 (1927); German Alliance, 233 U.S. 389.
160. 291 U.S. 502 (1934).
161. Id. at 533 ("'Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large.' Thus understood, 'affected with a public interest' is the equivalent of 'subject to the exercise of the police power'; and it is plain that nothing more was intended by the expression." (citation omitted) (quoting Munn, 94 U.S. at 126)).
162. See Tyson, 273 U.S. at 430 ("The authority to regulate the conduct of a business... exists only where the business or the property involved has become 'affected with a public interest. Certain properties and kinds of business it obviously includes, like common carriers, tele- graph and telephone companies, ferries, wharfage, etc."); Chesapeake & Potomac Tel. Co. v. Balt. & Ohio Tel. Co., 7 A. 809, 811 (Md. 1887) ("The telegraph and telephone are important instru- ments of commerce, and their service, as such, has become indispensable to the commercial and business public. They are public vehicles of intelligence, and they who own or control them can no more refuse to perform impartially the functions that they have assumed to discharge than a railway company, as a common carrier, can rightfully refuse to perform its duty to the public."); see also Budd, 143 U.S. at 541-43 (citing numerous cases where regulation of telephone and tele- graph services was upheld as within the boundaries of common carrier regulations); Ellis v. Am. Tel. Co., 95 Mass. 226, 231-32 (1866) (upholding a law imposing nondiscrimination and price con- trols on a telegraph service as merely "assimilat[ing] the duties and obligations... which the law attaches to that of common carriers," id. at 232); State ex rel. Webster v. Neb. Tel. Co., 22 N.W. 237, 239 (Neb. 1885) ("That the telephone, by the necessities of commerce and public use, has be- come a public servant, a factor in the commerce of the nation, and of a great portion of the civi- lized world, cannot be questioned It has assumed the responsibilities of a common carrier of news. It has and must be held to have taken its place by the side of the telegraph as such common carrier.").
163. Nachbar TB, supra note 129, at 96-100 ("Not only does the market power theory face historical problems, but it also faces jurisprudential ones. The early history of common carrier regulation is devoid of any mention of monopoly, nor is market power an element of modern common carrier regulation of many industries." Id. at 97 (footnote omitted)); cf. Brief of Amici Curiae Reed Hundt et al. in Support of Appellee, supra note 3, at 27 n.8 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 257 (1964)) ("While mature threats to competition can be important reasons for impositing antidiscrimination or equal access obligations, they are not constitutionallyrequired prerequisites." (internal quotation marks omitted)).
164. Nachbar TB, supra note 129, at 102-09 ("Nondiscriminatory access appears to be the rule for physical networks even in the absence of economic forces that typically characterize networks." Id. at 102.).
165. Id. at 113.
166. High Speed Internet Service by XFINITY Internet from Comcast, COMCAST, http://www.comcast.com/internet-service.html (last visited May 10, 2014), archived at http://perma.cc/Y3J8-RVZS.
167. FiOS Internet, VERIZON, http://fios.verizon.com/fios-internet.html (last visited May 10, 2014), archived at http://perma.cc/4L7A-47FC.
168. 525 F.2d 630 (D.C. Cir. 1976) (upholding FCC designation of a group of private mobile ser- vice providers as common carriers not subject to the traditional rate and service provisions of the Communications Act of 1934). So-called "private carriage" services are those for which terms are individually negotiated.
169. 533 F.2d 601 (D.C. Cir. 1976).
170. 525 F.2d at 642.
171. Id. at 641-42 (quoting Semon v. Royal Indem. Co., 279 F.2d 737, 739 (5th Cir. 1960)) ("Since given private and common carriers may therefore be indistinguishable in terms of the clientele actually served, it is difficult to envision a sensible line between them which does not turn on the manner and terms by which they approach and deal with their customers. The common law re- quirement of holding oneself out to serve the public indiscriminately draws such a logical and sensible line between the two types of carriers." Id. at 642. "It is not necessary that a carrier be required to serve all indiscriminately; it is enough that its practice is, in fact, to do so." Id. at 641.); see also Sw. Bell Tel. Co. v. FCC, 19 F.3d 1475, 1481 (D.C. Cir. 1994) ("[T]he indiscriminate offering of service on generally applicable terms... is the traditional mark of common carrier service."). The FCC has itself used the NARUC test. See, e.g., NORLIGHT Request for Declaratory Ruling, 2 FCC Rcd. 5167, 5168 (1987) (ruling that offering was private carriage because it involved a relatively stable clientele, was tailored to the special requirements of each customer, and was provided under negotiated contract terms).
172. NARUC I, 525 F.2d at 644 (emphasis added); see also id. ("[W]e reject those parts of the Or- ders which imply an unfettered discretion in the Commission to confer or not confer common car- rier status on a given entity, depending upon the regulatory goals it seeks to achieve A partic- ular system is a common carrier by virtue of its functions " (emphasis added)). The FCC's 1998 Universal Service Report is to the same effect: "Congress[] direct[ed] that the classification of a provider should not depend on the type of facilities used Its classification depends rather on the nature of the service being offered to customers." Federal-State Joint Board on Universal Service, 13 FCC Rcd. 11,501, 11,530 (1998) (footnote omitted). The Commission also noted that "[a] telecommunications service is a telecommunications service regardless of whether it is pro- vided using wireline, wireless, cable, satellite, or some other infrastructure." Id. The nature of the service in turn "depends on the functional nature of the end-user offering." Id. at 11,543.
173. The Commission had wanted to classify those services as "reasonably ancillary to the effec- tive performance of the Commission's various responsibilities for the regulation of television broadcasting" under its Title I ancillary jurisdiction. NARUC II, 533 F.2d at 611 (quoting United States v. Sw. Cable Co., 392 U.S. 157, 178 (1968)) (internal quotation mark omitted).
174. Id. at 608 (quoting Washington ex rel. Stimson Lumber Co. v. Kuykendall, 275 U.S. 207, 211 (1927)).
175. Id. at 616-17. And such two-way cable services, at that point in history, were regulated at the state level. Id. at 616.
176. Id. at 609 (quoting Amendment of Parts 2, 91, and 919 of the Commission's Rules Insofar as They Relate to the Industrial Radiolocation Service, 5 F.C.C.2d 197, 202 (1966)).
177. See id. at 608-09. The court was quite firm on this point: "any two-way use of cable in which the customer explicitly or implicitly determines the transmission or content of the return message, satisfies this second prerequisite to common carrier status." Id. at 610 (footnote omit- ted). This "indifferent carriage" test of NARUC II came from a 1966 report and order issued by the Commission, which interpreted the Communications Act of 1934 to apply common carrier regulations to industries that served as common carriers "in the ordinary sense of the term." Amendment of Parts 2, 91, and 99 of the Commission's Rules Insofar as They Relate to the Indus- trial Radiolocation Service, 5 F.C.C.2d at 202. Thus, while the NARUC test was devised by the D.C. Circuit, it was crafted in a way that reflected both the common law history of common car- riage, discussed extensively in NARUC I, and the FCC's own understanding of how that designa- tion applied in the communications context. See NARUC II, 533 F.2d at 609-11. The FCC has also found that the eligible public is not limited to end users but may include services offered to other carriers or service providers. See, e.g., Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the Communications Act of 1934, as Amended, 11 FCC Rcd. 21,905, 22,032-33 (1996).
178. NARUC II, 533 F.2d at 610. Because the congruence between the FCC's desire to preempt state authority over this common carriage service and its clear statutory power over broadcast was slight or nonexistent, the court found that its claim that its authority in the NARUC II context was "reasonably ancillary to broadcasting" was unsustainable. Id. at 617.
179. See U.S. Telecom Ass'n v. FCC, 295 F.3d 1326, 1329 (D.C. Cir. 2002) ("[C]ommon carrier status turns on: (1) whether the carrier 'holds himself out to serve indifferently all potential users'; and (2) whether the carrier allows 'customers to transmit intelligence of their own design and choosing.'" (quoting Fed.-State Joint Bd. on Universal Serv., 14 FCC Rcd. 3040, 3050 (1999))). The "transmission" element of the NARUC test often takes on less importance than the "holding out" prong. See Iowa Telecomms. Servs., Inc. v. Iowa Utils. Bd., 563 F.3d 743, 746-47 (8th Cir. 2009).
180. Deference would be inappropriate under either Chevron Step One or Step Two. Under Step One, "[t]he judiciary... must reject administrative constructions which are contrary to clear con- gressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984) (citations omitted). Under Step Two, the FCC's classification is manifestly contrary to the statute and, therefore, cannot survive scrutiny. See id. at 843-44. At the least, the FCC's classification is not supported by reasoned decisionmaking and, therefore, is arbitrary and capricious. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); accord Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 1005 (2005) (Scalia, J., dissenting) ("[T]he Commission has attempted to establish a whole new regime of non-regulation... through an implausible reading of the statute"). The analysis of disputed agency action under Chev- ron Step Two and arbitrary and capricious review is often "the same, because under Chevron step two, [the court] ask[s] whether an agency interpretation is 'arbitrary or capricious in substance.'" Judulang v. Holder, 132 S. Ct. 476, 483 n.7 (2011) (quoting Mayo Found. for Med. Educ. & Re- search v. United States, 131 S. Ct. 704, 711 (2011)) (internal quotation marks omitted). In recent years, the FCC has ignored the NARUC II test, focusing instead on market power considerations when deciding whether a particular category of service should be "common carriage." See Policy and Rules Concerning Rates for Competitive Common Carrier Services and Facilities Auth- orizations Therefor, 84 F.C.C.2d 445, 534 (1981) ("[T]he holding out test developed from cases dealing with the tort liability standard for transportation common carriers. These liability stand- ards were never applied to communications companies."); Richard S. Whitt, Evolving Broadband Policy: Taking Adaptive Stances to Foster Optimal Internet Platforms, 17 COMMLAW CON- SPECTUS 417, 477 (2009) (describing evolution of FCC view of NARUC II test). In this instance, the market power of the carriers provides merely an additional reason to classify them as common carriers. Their function in society is sufficient for this classification to be appropriate, and the statutory language being construed by the Commission - the definition of "telecommunications services" - is decisive.
181. See Joint Brief for Verizon and MetroPCS, supra note 2, at 43 ("Just as a newspaper is en- titled to decide which content to publish and where, broadband providers may feature some con- tent over others."); see also Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241 (1974). 162 See Joint Brief for Verizon and MetroPCS, supra note 2, at 43 & n.12 (citing Turner I, 512 U.S. 622, 628-29 (1994)). Turner I is cited routinely by the providers for two propositions: First, "cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment." Turner I, 512 U.S. at 636. And second, absent a finding of market power, the government may not infringe on the cable operators' editorial discretion. See id. at 661.
182. 47 U.S.C. § 230(c)(1) (2006).
183. Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 386 (1973) (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)).
184. See, e.g., Recording Indus. Ass'n of Am., Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1237 (D.C. Cir. 2003) (overturning subpoena seeking personal information of Verizon customers where Verizon was "acting as a mere conduit for the transmission of information sent by others"); Doe v. GTE Corp., 347 F.3d 655, 656, 659, 661-62 (7th Cir. 2003) (affirming dismissal of case against "subsidiaries of Verizon," id. at 656, for hosting website that featured illegally recorded videos, explaining that the company, "like a delivery service or phone company, is an intermediary and [not]... liable for the sponsor's deeds," id. at 659); Brief for Appellant at 3, Recording In- dustry Ass'n, 351 F.3d 1229 (Nos. 03-7015, 03-7053) (arguing that "[t]he [Digital Millennium Copy- right Act]... makes clear that Internet service providers, such as Verizon, enjoy the same im- munities that have traditionally applied to other entities that provide pure 'transmission' or 'conduit' functions"). Other cases are in accord. See Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 132 (2d Cir. 2008) (holding that cable system operator did not "make[]" unauthorized copies of copyrighted broadcasts its equipment recorded at subscribers' direction); In re Charter Commc'ns, Inc., Subpoena Enforcement Matter, 393 F.3d 771, 777 (8th Cir. 2005) (quashing sub- poena on cable Internet access provider because it was "acting as a conduit"). In an amicus brief filed in National Cable & Telecommunications Association v. Gulf Power Co., 534 U.S. 327 (2002), Verizon explained that the statutory definitions of "cable service," see 47 U.S.C. §§ 522(6), 153(7) (2000), "plainly cannot encompass" broadband Internet access, Brief for the United States Tele- com Association and Verizon Communications as Amici Curiae in Support of Reversal at 19, Na- tional Cable & Telecommunications Ass'n, 534 U.S. 327 (Nos. 00-832, 00-843), which Verizon de- scribed as a "transport service," id. at 18, and a "'transparent conduit' for content... selected by an end user and []originated by a third party," id. at 22.
185. Google and Verizon Joint Submission on the Open Internet at 2, GN Docket No. 09-191 (Fed. Commc'ns Comm'n Jan. 14, 2010); see also Brief of Amici Curiae Reed Hundt et al. in Support of Appellee, supra note 3, at 11. 167 Reno v. ACLU, 521 U.S. 844, 870 (1997) (quoting ACLU v. Reno, 929 F. Supp. 824, 842 (E.D. Pa. 1996)) (internal quotation mark omitted).
186. 521 U.S. 844.
187. 512 U.S. 622, 629 (1994). The relevant language in Turner I comes from a case in which a city had rejected a competing cable distributor's application for a municipal franchise, at a time when that behavior was still legal. See Preferred Commc'ns, Inc. v. City of Los Angeles, 754 F.2d 1396 (9th Cir. 1985), aff'd sub nom. City of Los Angeles v. Preferred Commc'ns, Inc., 476 U.S. 488 (1986). The Supreme Court later agreed that "[t]he business of cable television, like that of news- papers and magazines, is to provide its subscribers with a mixture of news, information and enter- tainment. As do newspapers, cable television companies use a portion of their available space to reprint (or retransmit) the communications of others, while at the same time providing some orig- inal content." Preferred Communications, 476 U.S. at 494 (quoting statements of respondents) (internal quotation marks omitted). The Ninth Circuit had previously decided that the city's in- terest in protecting public land from additional infrastructure was not enough "to counterbalance the risk that diversity in editorial judgments will be limited by the City's determination to choose the cable providers that it will permit to use the medium," Preferred Communications, 754 F.2d at 1406-07, and the Supreme Court then upheld the competing cable operator's claim that his opera- tions would increase that diversity, see Preferred Communications, 476 U.S. at 494 ("Thus, through original programming or by exercising editorial discretion over which stations or pro- grams to include in its repertoire, respondent seeks to communicate messages on a wide variety of topics and in a wide variety of formats."). Here, in the context of high-speed Internet access - providing access to something that is as "diverse as human thought" - there can be no argument that Verizon's selective discrimination will increase communications diversity, much less convey a substantive message. For this reason, once Verizon starts selecting programming for special treatment (something it has declared it would like to do), it may be, in effect, choosing its First Amendment status for itself. See
188. infra section III.B, pp. 2388-91.
189. Verizon also cited Comcast Cablevision of Broward County, Inc. v. Broward County, 124 F. Supp. 2d 685 (S.D. Fla. 2000), a strange case from the very early days of the commercial Internet brought by cable companies that wanted to choose their own ISPs out of thousands of existing ISPs, a choice that was restricted by a county ordinance, id. at 686-87. See Joint Brief for Veri- zon and MetroPCS, supra note 2, at 44. The Broward court understood the operators' argument to be about the choice of an "Internet information channel," 124 F. Supp. 2d at 694 (emphasis added), and gave credit to the operators' claims that the choice was based on content because they "consider[ed] some Internet providers unacceptable because of offensive or hateful programming," id. at 691. The court agreed with the operators that if the ordinance required them to connect to any ISP that asked, the result might be "offensive" "Internet information services" programming crossing the operators' systems. Id. at 697. The court also credited the idea that choosing an ISP required the operators "to forego other programming because of the physical limitations of their system." Id. at 691. In the end, the court decided that the cable operators were not selling trans- missions but instead offering "a collection of content," id. at 693, that Internet access was just one of several channels the operator would sell, and that the operators had made a choice of Internet access channel based on avoiding "offensive or hateful programming," id. at 691. The court ac- cordingly found a county ordinance requiring cable operators to allow subscribers to choose their own Internet access providers to be an unconstitutional content-based regulation of speech. Id. at 698. Broward has no application today. None of the large marketers of high-speed Internet ac- cess today says that it is providing "less offensive" Internet access. Indeed, none of them claims it is doing anything other than selling a particular speed of access at a particular price. And no con- sumer views Internet access as one of many channels. It is its own separate category.
190. As the Commission has noted, "services composing a single bundle at the point of sale - for instance, local telephone service packaged with voice mail - can retain distinct identities as sepa- rate offerings for classification purposes." Framework for Broadband Internet Service, 25 FCC Rcd. 7866, 7891 n.158 (2010) (citing, among other things, Federal-State Joint Board on Universal Service, 13 FCC Rcd. 11,501, 11,530 (1998) ("It is plain, for example, that an incumbent local ex- change carrier cannot escape Title II regulation of its residential local exchange service simply by packaging that service with voice mail.")). Similarly, that Comcast and other network access pro- viders bundle their Internet access services with other services at the point of sale (television, home security, email boxes, storage) would not change the classification of their high-speed Inter- net access offering.
191. NARUC II, 533 F.2d 601, 608 (D.C. Cir. 1976); see also Chesapeake & Potomac Tel. Co. of Va. v. United States, 42 F.3d 181, 196 (4th Cir. 1994), vacated sub nom. United States v. Chesapeake & Potomac Tel. Co. of Va., 516 U.S. 415 (1996) (per curiam) (holding that telephone companies "are not members of 'the press'" when transmitting telephone calls, but had speech rights in providing video programming).
192. Joint Brief for Verizon and MetroPCS, supra note 2, at 45 (quoting United States v. O'Brien, 391 U.S. 367, 377 (1968)).
193. Id. at 42 (quoting Preferred Communications, 476 U.S. at 494) (internal quotation marks omitted).
194. Oral Argument at 28:53-28:54, Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) (Nos. 11-1355, 11-1356), available at http://www.c-span.org/video/?314904-1/verizon-v-federal-communications-commission-oral-argument.
195. As Michael Fries, Liberty Global's chief executive officer, puts it: So our goal is not to maximize customers per se, that's not what we're in business to do. We're in business to generate optimal returns to shareholders, and that means driving the most profitable growth we can out of the marketplace [by making more money from the same number of people], and driving revenue and operating cash flow improvements quarter after quarter. Online Recording: Telephone Conference on Q2 2013 Earnings, held by Liberty Global plc, at 26:05-26:24 (Aug. 2, 2013), available at http://edge.media-server.com/m/p/ydtkuop6/lan/en. 176 Oral Argument at 28:49-30:16, Verizon, 740 F.3d 623.
196. Id. at 25:50-26:12.
197. Ronald Grover & Liana B. Baker, CBS Win Squeezes Time Warner Cable's Margins: Ana- lysts, YAHOO! NEWS (Sept. 3, 2013, 10:44 AM), http://news.yahoo.com/cbs-win-squeezes-time-warner-cables-marginsanalysts-041149610finance.html, archived at h ttp://perma.cc/Q88Y-R45J. CBS had sought "retransmission consent" payments from Time Warner Cable for rights to online distribution of CBS content through Time Warner Cable's TV Everywhere product, and withheld its content from Time Warner Cable's pay television product until the distributor con- ceded. Cynthia Littleton & Todd Spangler, CBS, Time Warner Cable Reach Deal to End Black- out, VARIETY (Sept. 2, 2013, 2:14 PM), http://variety.com/2013/tv/news/cbs-time-warner-cable -reach-deal-to-end-blackout-1200596315, archived at http://perma.cc/XVS4-GB3P. According to Fusion Research, "[t]he dispute ended in a fee increase per subscriber from around $0.56 per month [for CBS programming] to around $2.00, signaling a percentage change of around 250% If we assume the fee increase on this [3.2 million] subscriber base, it would result in Time Warner increasing its payment to CBS by around $55.29 million per year." Fusion Re- search, Time Warner Cable: Doing It the Microsoft/Comcast Way, SEEKING ALPHA (Sept. 13, 2013, 3:19 AM), http://seekingalpha.com/article/1692412-time-warner-cable-doing-it-the-microsoft -comcast-way, archived at http://perma.cc/XX8Q-VC3P.
198. As of June 30, 2013, Liberty Global had 24.5 million customers in 47 million homes across fourteen markets (including twelve contiguous countries in Europe). Online Recording, supra note 175, at 2:23-2:32.
199. Online Recording: Annual Meeting of Shareholders, held by Liberty Media Corporation, at 25:37-26:15 (June 4, 2013), available at http://www.shareholder.com/visitors/event/build2/mediapresentation.cfm?companyid=ABEA-4CW8ZW&mediaid=59488.
200. The providers are already squeezing interconnecting networks, charging them more to con- nect. See Jon Brodkin, Why YouTube Buffers: The Secret Deals That Make - And Break - On- line Video, ARSTECHNICA (July 28, 2013, 9:00 PM), http://arstechnica.com/information-technology/2013/07/why-youtube-buffers-the-secret-deals-that-make-and-break-online-video/, archived at perma.cc/7S72-YM9E.
201. Oral Argument at 1:03:41-1:04:26, Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) (Nos. 11-1355, 11-1356), available at http://www.c-span.org/video/?314904-1/verizon-v-federal-communications-commission-oral-argument.
202. Id. at 1:04:50-1:05:02.
203. Id. at 1:06:46-1:07:10.
204. Id. at 1:07:10-1:07:16. At this point in the argument, Judge Silberman appeared to be con- vinced by Verizon's suggestion that there would have to be a showing of "bottleneck monopoly control" by distributors of high-speed Internet access in order for the FCC (or Congress) to require common carriage-like treatment of their facilities. Joint Brief for Verizon and MetroPCS, supra note 2, at 46 (quoting Turner I, 512 U.S. 622, 661 (1994)) (internal quotation marks omitted). As discussed supra, market power is not an essential element of common carriage treatment. It is the nature of the service, not the power of the operator, that dictates its categorization as a common carrier.
205. See Verizon, 740 F.3d at 634, 655-59.
206. 10 U.S.C. § 983 (2012).
207. See FAIR, 547 U.S. 47, 51-53 (2006). 190 See id. at 62.
208. See id. at 60.
209. Id. FAIR's focus on conduct has been criticized. See Dale Carpenter, Unanimously Wrong, 2006 CATO SUP. CT. REV. 217, 243 ("No prior majority opinion on the subject has suggested that in deciding whether conduct is expressive we should look only at the conduct itself, rather than at both the conduct and the context in which it occurs."). But whether the focus is on conduct alone or conduct plus context, the key point is that there must be meaningful expression.
210. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 502 (1981) ("[T]he government has legitimate interests in controlling the noncommunicative aspects of the medium, but the First and Fourteenth Amendments foreclose a similar interest in controlling the communicative aspects." (citation omitted)); Home Box Office, Inc. v. FCC, 567 F.2d 9, 47 (D.C. Cir. 1977), cert. denied sub nom. FCC v. Home Box Office, Inc., 434 U.S. 829 (1977) (noting that the First Amendment does not preclude government regulation of noncommunicative aspects of speech).
211. 319 U.S. 624 (1943).
212. 430 U.S. 705 (1977); see FAIR, 547 U.S. at 61.
213. See Joint Brief for Verizon and MetroPCS, supra note 2, at 42-43 (citing Turner I, 512 U.S. 622, 636 (1994)).
214. Id. at 42 (first alteration in original) (quoting Turner I, 512 U.S. at 636).
215. See id. at 42-45, 43 n.12.
216. Cf. Nat'l Ass'n of Mfrs. v. NLRB, 717 F.3d 947, 958 (D.C. Cir. 2013) (intimating that in the absence of compulsory government-devised messages, a compelled-speech violation can only oc- cur where "the complaining speaker's own message was affected by the speech it was forced to accommodate" (quoting FAIR, 547 U.S. at 63) (internal quotation marks omitted)). Tornillo in- volved a challenge to a Florida right-of-reply statute, which afforded any candidate for public office who was "assailed regarding his personal character or official record by any newspaper" the right to have the newspaper print the candidate's reply statement. Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 244 (1974). The disposition of Tornillo turned on the Court's recognition that the statute ignored the reality that the imposition on the newspaper consumed "space that could be devoted to other material the newspaper may have preferred to print." Id. at 256; see also id. at 256-57. Verizon's claim of "compelled speech" is also far less substantial than the one upheld in National Association of Manufacturers v. NLRB, 717 F.3d 947. Unlike the regulation National Association of Manufacturers invalidated, which required employers to convey to em- ployees a particular, government-formulated message with which they disagreed (and pressured employers who might otherwise maintain silence on the subject of union organization to express their objections), see id. at 950, 958, the FCC's noninterference requirements raise no specter of government-enforced orthodoxy.
217. Indeed, Verizon's claim that it is being forced to subsidize speech with which it may not agree is uncomfortably similar to claims made by racially discriminating businesses during the civil rights movement and should be summarily dismissed if made again before a court today as those claims were then. See, e.g., Runyon v. McCrary, 427 U.S. 160, 175-76 (1976) ("[I]t may be assumed that parents have a First Amendment right to send their children to educational institu- tions that promote the belief that racial segregation is desirable, and that the children have an equal right to attend such institutions. But it does not follow that the practice of excluding racial minorities from such institutions is also protected by the same principle." Id. at 176.); Bell v. Maryland, 378 U.S. 226, 245-46 (1964) ("The corporation that owns this restaurant did not refuse service to these Negroes because 'it' did not like Negroes. The reason 'it' refused service was because 'it' thought 'it' could make more money by running a segregated restaurant." Id. at 245.); cf. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 243-44, 261 (1964) (dismiss- ing hotel's Thirteenth Amendment challenge to federal antidiscrimination law).
218. See Reno v. ACLU, 521 U.S. 844, 870 (1997) ("[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the Internet]."). 203 See Joint Brief for Verizon and MetroPCS, supra note 2, at 42-44.
219. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 572-73 (1995).
220. See Pac. Gas. & Elec. Co. v. Pub. Utils. Comm'n of Cal., 475 U.S. 1, 13 (1986).
221. See Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 256-57 (1974).
222. See Turner I, 512 U.S. 622, 636-37 (1994).
223. Turner I's support for discretion over channels as a basis for First Amendment protection for pay television operators does not - at the moment - apply to Verizon's function as a high- speed Internet access provider. Verizon has said that all broadband providers now allow all con- tent to flow in an undifferentiated manner. Joint Brief for Verizon and MetroPCS, supra note 2, at 43; see also id. at 51 ("[B]roadband providers today generally provide subscribers access to all lawful [Internet] content and have strong economic incentives to continue to do so." (citation omit- ted)). As section III.B describes, the providers' ability to say that they are "just like" a pay televi- sion operator will increase with the passage of time and continued deregulatory treatment.
224. infra pp. 2388-91.
225. FAIR, 547 U.S. 47, 66 (2006).
226. Texas v. Johnson, 491 U.S. 397, 404 (1989) (first alteration in original) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)) (internal quotation mark omitted); cf. Nat'l Ass'n of Mfrs. v. NLRB, 717 F.3d 947, 957-59 (D.C. Cir. 2013) (striking down as compelled speech NLRB requirement that employers post notification of collective bargaining rights where government had "selected the message and ordered its citizens to convey that message," id. at 957). See generally Stuart Minor Benjamin, Transmitting, Editing, and Communicating: Determining What "The Freedom of Speech"
227. Encompasses, 60 DUKE L.J. 1673 (2011).
228. Google and Verizon Joint Submission on the Open Internet, supra note 166, at 2, 7.
229. See, e.g., Formal Complaint of Free Press & Pub. Knowledge Against Comcast Corp. for Secretly Degrading Peer-to-Peer Applications, 23 FCC Rcd. 13,028, 13,031 n.23, 13,031-32 (2008) (noting that Comcast had denied trying to degrade service purposefully and had instead accom- plished its aim by "injecting forged RST packets," id. at 13,031 n.23, that instructed both ends of a connection to hang up on one another); id. at 13,065 (statement of Chairman Kevin J. Martin) ("Comcast was delaying subscribers' downloads and blocking their uploads Even worse, Comcast was hiding that fact by making effected [sic] users think there was a problem with their Internet connection or the application.").
230. See Oral Argument at 1:03:40-10:04:26, Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) (Nos. 11-1355, 11-1356), available at http://www.c-spanvideo.org/program/Veriz.
231. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 62 (2006) (quot- ing Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 501-04 (1949) (holding that the state may enjoin conduct with an expressive component where that conduct is designed to violate a neutral state antitrust law)) (internal quotation marks omitted). FAIR picked up on this point, noting that a ban on race-based hiring may require employers to remove "White Applicants Only" signs. Id. (internal quotation marks omitted). Similarly, "an ordinance against outdoor fires" might legiti- mately forbid "burning a flag," as opposed to "an ordinance against dishonoring the flag." R.A.V. v. City of St. Paul, 505 U.S. 377, 385 (1992).
232. FAIR, 547 U.S. at 62. The Second Circuit recently reached a similar conclusion in the con- text of program carriage (a regime set up under the 1992 Cable Act requiring distributors of video not to discriminate against programmers based on their ownership affiliations). See Time Warner Cable Inc. v. FCC, 729 F.3d 137, 142-43, 158-59 (2d Cir. 2013). In that case, cable television op- erators claimed that strict scrutiny applied because the Commission examined content in deciding whether the program carriage regime was triggered by a particular programmer's complaint. See id. at 158. The Second Circuit rejected the content-based argument in its entirety, pointing out that the program carriage regime neither was triggered by any particular message nor mandated that the cable companies support views they opposed. See id. at 158-59.
233. 447 U.S. 74 (1980); see id. at 87-88 (upholding a state-law prohibition against excluding peaceful expressive activity from shopping centers because "[t]he views expressed by members of the public in passing out pamphlets or seeking signatures for a petition... will not likely be identified with those of the [shopping center's] owner," id. at 87).
234. See FAIR, 547 U.S. at 65.
235. See Joint Brief for Verizon and MetroPCS, supra note 2, at 44 (suggesting that the regula- tion's negative impact on Verizon's ability to engage in differential pricing or treatment strategies directly flows from the alleged infringement of Verizon's "speech rights").
236. FAIR, 547 U.S. at 66.
237. Although this issue was not raised in FAIR, Verizon claimed that strict scrutiny of any common carriage-like regime is required because high-speed Internet access providers have been singled out for regulation while search portals and app-store operators have been excluded. Joint Brief for Verizon and MetroPCS, supra note 2, at 46-48. The recent Second Circuit opinion in the context of cable-distributor program carriage rules found that speaker-based distinctions can be appropriate where they are not "based on the content of programming each group offers." Time Warner Cable Inc. v. FCC, 729 F.3d 137, 159 (2d Cir. 2013) (quoting Turner I, 512 U.S. 622, 658-59 (1994)) (internal quotation marks omitted). That court noted that the application of strict scru- tiny to speaker-based laws in Citizens United v. FEC, 558 U.S. 310 (2010), occurred in the context of political speech and declined to extend the application of strict scrutiny to all speaker-based preferences. Time Warner Cable, 729 F.3d at 159-60. Here, moreover, the difference between communications infrastructure and application is salient: the distinction between the sidewalk and the conversation makes differential regulatory treatment appropriate. Justice Breyer's dis- sent in Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011), makes clear the vacuity of speaker- based arguments in the context of regulated industries. See id. at 2678 (Breyer, J., dissenting) ("Nor, in the context of a regulatory program, is it unusual for particular rules to be 'speaker- based,' affecting only a class of entities, namely, the regulated firms.").
238. Joint Brief for Verizon and MetroPCS, supra note 2, at 45 (quoting United States v. O'Brien, 391 U.S. 367, 377 (1968)).
239. Id. (quoting Turner I, 512 U.S. at 662) (internal quotation marks omitted).
240. FAIR, 547 U.S. at 67 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)) (internal quotation marks omitted).
241. Pub. L. No. 73-416, 48 Stat. 1064 (codified as amended in scattered sections of 47 U.S.C.).
242. Id. § 151. Access to the Internet substantially affects interstate commerce. See generally United States v. Morrison, 529 U.S. 598, 609 (2000).
243. For example, the Telecommunications Act of 1996 lists four categories a service should satisfy to be eligible for disbursements from the Universal Service Fund, which was established by Congress in 1996 to ensure equitable public access to "essential" communications facilities (such that costs nationwide are reasonably comparable to urban areas). See 47 U.S.C. § 254. The requirements for such services include: the extent to which such telecommunications services: (A) are essential to education, public health, or public safety; (B) have, through the operation of market choices by customers, been subscribed to by a substantial majority of residential customers; (C) are being deployed in public telecommunications networks by telecommunications carriers; and (D) are consistent with the public interest, convenience, and necessity. Id. § 254(c)(1). High-speed Internet access clearly fits (A), (B), and (D), and the FCC has had to carry out interpretive gymnastics in order to ensure that this service is supported notwithstanding its regulatory classification of high-speed Internet access service as an unregulated "information" service rather than a regulated "telecommunications" service. See Connect America Fund, 26 FCC Rcd. 4554, 4580-81 (2011). "'Telecommunications service' does not include information ser- vices, cable services, or 'wireless' cable services, but does include the transmission, without change in the form or content, of such services." S. REP. NO. 104-23, at 18 (1995) (emphasis add- ed). Also: "As defined under the 1934 Act (as amended by this bill), 'telecommunications services' includes the transport of information or cable services, but not the offering of those services. This means that information or cable services are not included in the definition of universal service; what is included is that level of telecommunications services that the FCC determines should be provided at an affordable rate to allow all Americans access to information, cable, and advanced telecommunications services that are an increasing part of daily life in modern America." Id. At 27 (first emphasis added). See generally id. at 1-124.
244. Cf. Joe Nocera, Op-Ed., Merge Is What Airlines Do, N.Y. TIMES, Aug. 17, 2013, at A19 ("Hey, wait a minute. Wasn't airline deregulation supposed to bring lower prices and increased competition?"). Although a finding of monopoly status is not necessary for regulation in this area to be appropriate, the fixed and high upfront cost of constructing a high-speed Internet access service and the steeply declining cost curves for that business signal that these are natural mo- nopolies, like railroads and aviation. See
245. CRAWFORD S, supra note 38, at 14-17.
246. Indeed, within recent years, "Congress has passed three significant pieces of legislation that reflect its strong interest in ubiquitous deployment of high speed broadband communications networks" Framework for Broadband Internet Service, 25 FCC Rcd. 7866, 7877 (2010) (cit- ing the Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-246, 122 Stat. 1651 (2008) (codified as amended in scattered sections of 7 and 16 U.S.C.), which directed the FCC Chairman to submit to Congress "a comprehensive rural broadband strategy," Food, Conservation, and En- ergy Act of 2008 § 6112, 122 Stat. at 1966; the 2008 Broadband Data Improvement Act, Pub. L. No. 110-385, 122 Stat. 4096 (2008) (codified at scattered sections of 15 and 47 U.S.C.); and the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115 (2009) (codi- fied as amended in scattered sections of the U.S. Code), which, among other things, appropriated up to $7.2 billion to evaluate, develop, and expand access to and use of high-speed Internet access services, see id. div. A, 123 Stat. at 118-19, 128, and required the FCC to develop a National Broadband Plan to ensure that every American has "access to broadband capability and... establish benchmarks for meeting that goal," 47 U.S.C. § 1305(k)(2)).
247. Cf. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2663-64 (2011) ("Formal legislative findings accompanying [Vermont's Prescription Confidentiality Law] confirm that the law's express pur- pose and practical effect are to diminish the effectiveness of marketing by manufacturers of brand-name drugs Given the legislature's expressed statement of purpose, it is apparent that [the law] imposes burdens that are based on the content of speech and that are aimed at a particular viewpoint." (emphasis added)).
248. See id. at 2673 (Breyer, J., dissenting) (arguing that the test should be "whether... regulatory provisions work harm to First Amendment interests that is disproportionate to their furtherance of legitimate regulatory objectives").
249. Preserving the Open Internet, 25 FCC Rcd. 17,905, 17,909 (2010).
250. Brief for Appellee/Respondents at 3, Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) (No. 11-1355).
251. See Preserving the Open Internet, 25 FCC Rcd. at 17,927 ("[E]rosion of Internet openness threatens to harm innovation, investment in the core and at the edge of the network, and competition in many sectors, with a disproportionate effect on small, entering, and non-commercial edge providers that drive much of the innovation on the Internet.").
252. It is likely that unequal Internet access, which itself is closely correlated with socioeconomic status, is exacerbating existing inequalities in American society. See, e.g., Anton Troianovski, The Web-Deprived Study at McDonald's, WALL ST. J., Jan. 29, 2013, at A1 (noting that demographic gaps in home access to fixed Internet connection is a key challenge for educators).
253. Cf. Sorrell, 131 S. Ct. at 2670-71 (expressing concern that the Vermont legislature sought to achieve its policy objectives indirectly through the impermissible means of restricting certain speech).
254. See Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 470 (1997) ("The First Amendment has never been construed to require heightened scrutiny of any financial burden that has the incidental effect of constraining the size of a firm's advertising budget. The fact that an economic regulation may indirectly lead to a reduction in a handler's individual advertising budget does not itself amount to a restriction on speech."). In fact, recognizing economic harm as a First Amendment injury would lead to perverse consequences. Cf. Associated Press v. United States, 326 U.S. 1, 20 (1945) ("It would be strange indeed... if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom.").
255. United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938) ("[R]egulatory legislation af- fecting ordinary commercial transactions is not to be pronounced unconstitutional [if]... it rests upon some rational basis within the knowledge and experience of the legislators.").
256. City of Arlington v. FCC, 133 S. Ct. 1863, 1868-73 (2013) (holding that the FCC was entitled to Chevron deference even in its interpretation of a statutory ambiguity that concerns the scope of its authority to issue rules). Interestingly, the City of Arlington v. FCC, 133 S. Ct. 1863, Court used as an example of statutory ambiguity the question whether an Internet service provider is a "common carrier." Id. at 1869.
257. See supra note 162.
258. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 589 (1980) (Rehn- quist, J., dissenting) (citation omitted). Communications carriers have not tried this flavor of constitutionalization in the past; no one said unbundling under section 251 raised any plausible compelled-speech concern following enactment of the Telecommunications Act of 1996. See 47 U.S.C. § 251(c)(3) (2006).
259. Such a backward-looking approach would be particularly dangerous for new competitive Internet applications seeking to avoid paying tribute to discriminatory network-access providers. 243 Joint Brief for Verizon and MetroPCS, supra note 2, at 42.
260. Almendarez-Torres v. United States, 523 U.S. 224, 239 (1998).
261. See Reno v. Flores, 507 U.S. 292, 314 n.9 (1993) ("Statutes should be interpreted to avoid serious constitutional doubts, not to eliminate all possible contentions that the statute might be unconstitutional." (citation omitted)).
262. See Rust v. Sullivan, 500 U.S. 173 (1991) (giving Chevron deference to HHS regulations in light of statutory ambiguity and refusing to apply the constitutional avoidance canon).
263. 545 U.S. 967 (2005); see id. at 983.
264. See R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1208 (D.C. Cir. 2012) (striking down on First Amendment grounds, by a 2-1 vote, nine graphic warnings proposed by the FDA for cig- arette packaging and advertising); Recent Case, 126 HARV. L. REV. 818, 819 (2013) (citing Re- quired Warnings for Cigarette Packages and Advertisements, 75 Fed. Reg. 69,524, 69,531 (2010)). See generally
265. R. George Wright, Are There First Amendment "Vacuums?": The Case of the Free Speech Challenge to Tobacco Package Labeling Requirements, 76 ALB. L. REV. 613 (2013).
266. See Isabelle Bibet-Kalinyak, A Critical Analysis of Sorrell v. IMS Health, Inc.: Pandora's Box at Best, 67 FOOD & DRUG L.J. 191, 191-92 (2012);
267. Andrew J. Wolf, Note, Detailing Commercial Speech: What Pharmaceutical Marketing Reveals About Bans on Commercial Speech, 21 WM. & MARY BILL RTS. J. 1291, 1297-99 (2013).