In the previous segment of this series, I briefly touched on how government officials may attempt to weigh in on questions of what content the media, and cable systems, can/cannot or should/should not carry – and the harm to the public interest caused by such activity. This same principle transcends traditional technology and carries over into today’s Internet-based communications world.
For instance, network neutrality, as defined by its proponents, may be viewed as “content neutral,” insofar as it is supposedly meant to guarantee all Internet content and application providers nondiscriminatory access to broadband Internet customers. But, in fact, the purpose of the proposed restrictions is hardly neutral with respect to content and speakers.
A flat nondiscrimination rule actually goes well beyond a traditional common carriage requirement, and would force Internet service providers to make their transmission services available to persons wishing to use them on nondiscriminatory rates, terms and conditions. Under such a formulation, Internet service providers would not be allowed to charge content and application providers at all – not for transport, not for enhancements or services in addition to transport, and not for guaranteed quality of service. Nondiscrimination under this rule would mean one-size-fits-all for all application providers, at a fixed, nondiscriminatory price of zero. All regardless of whether consumers actually might prefer different choices and models of access and delivery.
At least some proponents have been clear about the purpose of such a restriction. Among their stated fears: If Internet Service Providers (ISPs) are allowed to provide enhancements and quality of service guarantees to some content and application providers, other content and application providers that were unable or unwilling to pay for such enhancements would be less likely to be viewed on the Internet. It is as if cable program networks without the resources to acquire or produce high-definition programming sought to prevent cable operators from providing other networks with the additional channel capacity required for HD transmissions so that the standard-definition programming would not lose viewership.
Other proponents of the nondiscrimination model are less transparent about their purpose. While “net neutrality” rules are ostensibly aimed at preventing ISPs from interfering with the equal ability of all content and application providers to reach consumers, some proponents seek to use such rules to preserve their ability to achieve – or help others to achieve – enhanced and expedited access to consumers.
Google, for example, historically has been a vigorous proponent of net neutrality, and it’s easy to see why. Google has its own ubiquitous facilities for storing its content at sites near cable facilities across the nation. Therefore, it can already reach broadband customers faster than other content and application providers. Prohibiting cable operators and telephone companies from offering enhanced or guaranteed delivery to other content and application providers would not preserve equality. To the contrary, it would preserve the inequality and head start that Google already enjoys – promoting this very large speaker over others. Don’t get me wrong: it sounds like a good business plan; I just don’t think it is the business of government.
Forcing equal treatment in order to protect certain content providers is not the same thing as “content neutral.” The First Amendment ensures that the media can maximize the value of their services to customers without government restrictions designed to protect and promote particular speakers. The overriding purpose of the First Amendment is not to make the liberty interests of the media superior to anyone else’s right to speak. It is to ensure that the speech that is disseminated by the media – as well as the speech of individuals and other entities – is not shaped, forced or suppressed by the force of law as wielded by legislators and regulators.
Does this mean the government is powerless to protect the public from harms posed by particular actors on the Internet? No. We’ll discuss that in the next and final segment of our series.