In a recent article in Wired, Susan Crawford, the Harvard law professor who follows tech policy and telecom writes about the long-term strategy of the big ISPs to avoid regulation. She discusses the attempt of ISPs to equate some of their actions to be the equivalent of free speech – thus removing any such ISP actions from regulation.
The big ISPs aren’t the only big corporations adopting this strategy which has been enabled due to the Citizens United v. Federal Election Commission decision in 2010. This landmark Supreme Court decision ruled that the free speech clause of the First Amendment to the Constitution prohibits the government from regulating independent expenditures for communications from corporations – specifically in that case campaign contributions to politicians. Corporations have been emboldened by that ruling to push to widen the definition of First Amendment rights for corporations. While not entirely accurate, the most common interpretation of that case is that corporations now have some of the same First Amendment rights as people, and corporations want to expand that list of rights.
The heart of the big ISP argument is that transmitting speech is protected by the First Amendment. The ISPS want to equate the act of transmitting a voice call or sending any transmission of data as protected speech – the same as speech between two people. Susan Crawford’s article describes the big ISP argument, and to a non-lawyer the big ISP logic is a bit hard to understand. However, what matters is that the big ISPs are hoping to get a favorable hearing of the issue should this ever make it to the Supreme Court – a ruling in their favor would effectively eliminate the possibility of regulated ISP broadband transmissions.
To anybody who is not a constitutional lawyer this seems like a silly argument. It’s clear to most of us that big ISPs can best be classified as utilities. They sell services that we think of as utility products. Depending upon the market, the ISPs differ in the degree of competition, but even where there aren’t telecom monopolies, we understand that the big cable companies and telcos act like oligopoly providers and don’t vigorously compete with each other on price. I think the average person believes that the big ISPs services ought to be regulated to some extent since we are all aware of ways that the big ISPs have abused their customers in the past.
The big ISPs are currently enjoying the least amount of regulation they’ve ever seen. The current FCC effectively walked away from regulating broadband. While there are still telephone and cable TV regulations on the books that derive from acts of Congress, the current FCC is regulating those products in the lightest manner possible.
However, the big ISPs know this could change in a hurry. In 2017 the Supreme Court ruled that the prior FCC had the authority to impose net neutrality rules using Title II regulation. The ISPs understand that as future administrations change, they could get a future FCC that is pro-consumer rather than pro-ISP. They also understand that a future Congress could pass new laws that provide for stricter regulations.
In fact, it’s almost inevitable that the regulatory pendulum will swing the other way – that’s how regulation of all industries has always worked. The government will implement new regulations and the companies that are regulated will challenge those regulations and over time weaken them. When regulation become too lax, the government will restart the cycle with a new round of tougher regulations. The very nature of regulation leads to this cycle of swings between tougher and weaker regulation.
ISPs are their own worst enemy, because like all monopolies they can’t seem to control themselves from going too far in the way they treat customers. Just in recent news we saw the State of Minnesota suing Comcast for lying about hidden fees on cable bills. We just heard about the big wireless carriers selling real-time customer cellphone location data to the highest bidders like bounty hunters, after promising the government they would stop the practice. The big ISPs (and all monopolies) are unable to police themselves because the desire for greater profits always overrides common sense – which is the primary reason that we regulate big corporations.
As a consumer I feel that the current FCC has gone too far towards deregulation, and as someone who understands regulation, I’ve always assumed the pendulum would swing the other way. You have to give the big ISP lawyers credit for thinking out of the box, and they have found a tactic that they hope might remove them from the regulatory cycle. I think anybody that buys services from these big ISPs hopes that they are unsuccessful in this effort.