Cable Lobbyist Says Net Neutrality Violates The First Amendment
from the how? dept
Before we get into the details here, I should state, as a reminder, that I'm not in favor of passing laws mandating net neutrality, as I believe that there is a very strong potential for negative unintended consequences. Yet, I do think that the principle of network neutrality is important, and that it would be a serious mistake for ISPs to look to erode it. Basically, the issue is a lot more nuanced than it is often made out to be. But one thing that is quite clear is that some of the claims on all sides of the debate have gone to ridiculous levels. You may recall, for example, the flat out lie by lobbyist Mike McCurry, saying that Google paid nothing for bandwidth and its push for net neutrality was to keep getting bandwidth for free. That's a complete lie.And now, a whole bunch of you have sent in the story about how a top cable industry lobbyist, Kyle McSlarrow, of the NCTA, is claiming that any net neutrality mandate would violate ISP's First Amendment rights. What he doesn't explain is how. And that's because he can't. He stacks a few different concepts on top of one another to argue that net neutrality could prevent cable companies from "delivering their traditional multichannel video programming services or new services that are separate and distinct from their Internet access service." Except, there's nothing in the suggested FCC mandates that would do that. And even if it did, it's still difficult to see how it would be a First Amendment violation.
There are tons of very good reasons why we might want to avoid mandating net neutrality through law. But arguing that it will be a First Amendment violation isn't one of them... and it makes me wonder why lobbyists fighting against the regulations keep bringing up such bad arguments.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: cable companies, first amendment, net neutrality
Companies: ncta
Reader Comments
Subscribe: RSS
View by: Time | Thread
The real problem is network discrimination. ISPs should not be allowed to discriminate against websites and services.
So for a real world example, if I pay for a 6 Mbps service from Comcast, Comcast should not be allowed to throttle any website lower than what I'm paying for. It simply makes no sense for me to pay for a service and have the ISP throttle it below what I'm paying for.
[ link to this | view in chronology ]
Re:
Unless of course they were selling unused bandwidth to Netflix at a special rate - but that would raise the question of why there was ever any throttling going on in the first place.
[ link to this | view in chronology ]
Re: Re:
ISPs claim that net neutrality laws would stop them from innovating and forming partnerships. They're right.
So Comcast, for example, should be able to form partnerships and offer a high speed access from those partnerships to its users.
They would do that with a multi-tiered approach. Comcast could offer for example a 6 Mbps internet service with a 10 Mbps service for "trusted partners" or some other term.
The ISP would get to innovate and make partnerships, the customer would get the internet he paid for, and no one would be shut out of access to the customer, so websites would still be allowed to innovate and get new readers/subscribers/etc, without paying the ISP for the privilege.
[ link to this | view in chronology ]
Re: Re: Re:
Really, the core of it in terms of throttling (as distinct from the censorship part of the debate) is that you need to get what you pay for, and the terms need to be clear. If they are going to selectively throttle bandwidth, they need to tell you upfront, not just sell you "unlimited 6Mbps service!" and then serve it up to you as they see fit - which seems to be what they are doing to some degree. They got a bit of a chiding for it here in Canada recently, but the end result was very little change, and they are still allowed to throttle (to slay the elusive bandwidth hog!)
[ link to this | view in chronology ]
Re: Re: Re: Re:
Whats funny is that this guy brought up First Amendment violations. So far we have seen throttling, not allowing various applications, and limiting other video providers access to the cable networks last mile. That would be infringing on the freedom of speech and in the case of a news channel infringing on the freedom of the press. So wouldnt they be the ones Violating the First Amendment?
See how easy it is to make a BS argument....
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
[ link to this | view in chronology ]
Re:
Look at it this way. what if the state you live in made a deal with a delivery company that let their trucks speed at 100mph on all highways and roads, but the delivery company's competitors had to follow the posted speed. the company that can speed has entered into a deal that gives it an unfair advantage in the marketplace and negatively effects the free market.
the internet is no longer just a means of entertainment, it is now a necessary part of commerce and any form of discrimination of preference an isp shows negatively impacts commerce.
[ link to this | view in chronology ]
Wait.. .no, this makes sense
The point is even more clear when one considers McSlarrow's actual point, which is that it is an amazing hypocrisy for net neutrality advocates to argue that the reason for it is the First Amendment right of consumers to consume the messages the want. McSlarrow's point was that that is _not_ what the First Amendment provides. It does not say that there will be no censorship, only that there will be no _government_ censorship. Private (cable) company censorship is certainly not implicated by the First Amendment, except that the First Amendment means that the government cannot regulate such censorship. Which is what net neutrality seeks to do.
The real problem with McSlarrow's argument isn't that he is wrong (he isn't,) but that cable companies enjoy a government-mandated monopoly that comes with strings. One of the strings is government control of content. Although this is arguably unconstitutional, I am certain that McSlarrow would not be thrilled with the alternative - complete deregulation.
[ link to this | view in chronology ]
Re: Wait.. .no, this makes sense
What you're forgetting is that cable companies and ISPs all use our right-of-ways. That is, their cables go over our land but they pay us nothing for the privilege. In other words, it is not a free market.
If Comcast truly worked out all the deals necessary to run its cables across my land, my neighbor's land, and everyone else's land, in a free market and paid actual free market prices, I'd agree with you. But once the government gives them a break, and they willingly take that break, suddenly they can no longer rest on being free and independent from the government.
The phone company survives without getting to decide who gets to call whom? Are their first amendment rights being violated?
[ link to this | view in chronology ]
Re: Wait.. .no, this makes sense
Again, undecided - but I certainly understand the uneasiness about letting a handful of private companies control our most important communications tool.
[ link to this | view in chronology ]
Re: Re: Wait.. .no, this makes sense
If there is a need for an ISP unadultered by favoritism and throttling, that need will be met in a truly free market. The problem is not with private control. It is with government sticking its thumb on the scales whenever consumers try to way the benefits of different private controllers. As Ima Fish points out, ISPs as now incarnated exist largely on public largesse. Get rid of that, and competition will increase.
[ link to this | view in chronology ]
Re: Re: Re: Wait.. .no, this makes sense
[ link to this | view in chronology ]
Re: Wait.. .no, this makes sense
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Neutrality laws....
[ link to this | view in chronology ]
Re: Neutrality laws....
Yeah, I could agree with that. Ed Felten made that point years ago, and it still rings true.
[ link to this | view in chronology ]
Re: Neutrality laws....
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Heh. No, one is based on sound legal theory from well known and well-respected legal scholars.
And one is from a lobbyist. And is based on nothing.
I can tell the difference. Can you?
[ link to this | view in chronology ]
Re: Re:
Got it.
[ link to this | view in chronology ]
the first amendment?
m3mnoch.
[ link to this | view in chronology ]
Re: the first amendment?
http://www.celdf.org/GuestEditorials/Corporations1stAmendmentandDoNotCall/tabid/184/Default .aspx
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
http://en.wikipedia.org/wiki/Santa_Clara_County_v._Southern_Pacific_Railroad
And yes, it's a travesty of a decision (not that I think that the companies should have been deprived of due process, but that doesn't mean they should have all privileges of being a person), but somehow still out there. How it didn't contradict the 13th Amendment, I've no idea. After all, isn't the definition of slavery one person owning another?
[ link to this | view in chronology ]
Re: Re:
1st - " ... abridging the freedom of speech ... "
speech - Speech is the vocalized form of human communication.
(both via wikipedia)
A business is not human, therefore the First Amendment is not applicable.
[ link to this | view in chronology ]
All miss the point.
Anyone who connects you to a central switching hub should not be the entity that provides content. In other words, Ford should not manage or maintain the street in front of your house. Or the NJ Turnpike Authority, for that matter. This seems to have been lost c. 1999-2000. I give it another two years before everyone rediscovers David Isen's paper on this topic.
[ link to this | view in chronology ]
Re: All miss the point.
[ link to this | view in chronology ]
is the 'right to charge money' a first amendment right ?
[ link to this | view in chronology ]
As always...
Net neutrality is simple contract law: either provide the subscribed Internet access... or don't--if you (the ISP) don't, then you're violating the contract (and I'm not contracting for some ISP's "filtered" Internet access).
[ link to this | view in chronology ]
Re: censorship
The internet is different. An ISP only owns the physical medium of delivery and any services they add. The rest of the internet should not be under their jurisdiction for any reason, at any level. They should not have a right to say that certain sites, emails, etc are what I should see and others not, or prioritize one thing over another. If they want to make deals on content then that's great, and offer it high bandwidth, that's good. But, I must get what I pay for, unfiltered, uncontrolled.
The 1st amendment rights of businesses should be challenged. Since the whole concept was a literal mistake in the first place.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
We missed the boat ...
Never occurred to me that content providers becoming ISPs could be a problem. Now, those telcos and other backboners who got to also offer retail ISP service, I knew that was a bad idea.
[ link to this | view in chronology ]