McSlarrow: Network Neutrality Rules Could Threaten Openness, Content & Applications

Wants FCC to think about whether net neutrality rules can be justified under First Amendment

"Internet service providers do not threaten free speech." That was National Cable & Telecommunications Association President Kyle McSlarrow's message to a Media Institute lunch crowd in Washington Wednesday, according to a copy of his prepared remarks.

"[W]hen all the dire warnings of the net neutrality proponents are stripped away, there really are no signs of actual harm," he said, but countered there could be real harms from network neutrality rules that forced speech. Weighing in on what he conceded was the "seemingly endless" debate over network neutrality, he took aim at what he called "the strongest and loudest voices for net neutrality rules [who] often cloak their agenda as advancing the First Amendment or, just as frequently, First Amendment 'values.'”

The FCC is currently considering expanding and codifying its existing open Internet guidelines, and McSlarrow wants it to think hard about whether those rules can be justified under First Amendment standards. "What is fascinating, and frankly disturbing, however, is how often in recent years that First Amendment principles have been turned upside down in an attempt to advance agendas that themselves threaten true First Amendment rights," he said. 

He said network neutrality rules could actually restrict speech in a number of ways.

He pointed to a previous FCC's finding of improper network management by Comcast and its decision to impose "strict scrutiny" on ISPs as "standing the First Amendment on its head."

"Given the importance of a strict scrutiny standard in court decisions that seek to defend every American’s right to freedom of expression against government restraint, " said McSlarrow, "that 'strict scrutiny' is 'kind of  creepy.'"  In fact, McSlarrow's word choice of "creepy," and "cloak" and "lurking" reinforced his message that network neturality did not further the openness and transparency that FCC Chairman Julius Genachowski and the Obama administration have been pushing.

McSlarrow gave a shout-out to this FCC for appearing to propose in its planned rulemaking to "move away from that to a different kind of analysis." He also praised the chairman for the way he was conducting the network neutrality rulemaking process, but that did not stop him from taking aim at some possible outcomes.

McSlarrow argued that virtually all network neutraliy proposals represent some kind of forced speech--controlling how an ISP delivers content or applications to its customers. The rules could also infringe on the First Amendment by preventing providers from delivering traditional multichannel video programming separate from Internet service.

He says the FCC proposal strongly implies there needs to be "some kind of guaranteed amount of bandwidth capacity for services the government deems important." That could mean less bandwidth for services cable operators want to provide, a point McSlarrow has made often in arguing against the must-carry rules as a violation of both speech and property rights.

"But in this case," says McSlarrow, "the FCC is not engaged in the allocation of the public airwaves. The bandwidth we’re talking about is capacity on private transmission facilities constructed by ISPs. Imposing regulations that prevent providers from using “too much” capacity for speech-related services not even associated with Internet access should cause all sorts of First Amendment and Fifth Amendment Takings alarm bells to go off." 

McSlarrow says that network neutrality rules would affect content and application suppliers as well, since prohibiting them from contracting for faster speeds by mandating equality of service could make it too costly to provide the faster speed to anyone and effectively prevent them from offering services like 3-D gaming for instance, that some consumers may want.

"To tell a new entrant or an existing content provider that it cannot enter into arrangements with an ISP for unique prioritization or quality of service enhancements that might enable it to enter the marketplace and have its voice heard along with those of established competitors interferes with that provider’s speech rights in a way that should
immediately invite First Amendment scrutiny," he said.

"[W]e must also consider that a rule seeking to impose equality of treatment on today’s terms can have the effect of freezing in place today’s dominant players to the detriment of tomorrow’s start-ups."

McSlarrow said that network neutrality remains a solution in search of a problem.

"Yes, there’ve been a couple of isolated incidents that keep being held up as examples of what needs to be prevented, but nothing that suggests any threat to the openness of the Internet," said McSlarrow. "Meanwhile, the 'openness of the Internet' – and the First Amendment 'values' in a robust marketplace of Internet speech – have done nothing but flourish and expand beyond anyone’s wildest imagination. That is what happens when speech is left free to thrive in the marketplace of ideas – the very point of First Amendment rights."

In response to a question following the speech, McSlarrow said he thought it was possible for the FCC to craft a nondiscrimination principle that did not trample on First Amendment rights.

While he said he would not negate against himself in public, "he said there was a continuum," but that the starting point was that he did not think the rules were necessary. "It matters a lot how you define discrimination and what the presumptions are. It matters a lot how you define reasonable network management, and exceptions to all of the above might be."

He said NCTA wanted to take a constructive approach. "This is a rulemaking process that we will be part of."

Asked what the implications to the network neutrality debate were for services like TV Everywhere and ESPN 360, he said that the idea that "an Internet video ecosystem" would somehow "magically appear" for free delivering the same kind of video content being delivered by cable today was "a fantasy. It's not going to happen."

He said the there will need to be a sustainable economic model for that content. He pointed out that YouTube has not figured out yet how to make money.

He also said that the industry was in the very early stages of figuring out Internet video content delivery. "We'll figure it out, but the idea that we need to freeze it in place and say, 'aha, here it is,' and set up a superstructure in place" was like going to Google a few months after launch and trying to freeze that model.