Some commenters contend that open Internet rules violate the First Amendment and amount to an unconstitutional taking under the Fifth Amendment. We examine these constitutional arguments below, and find them unfounded.
1.First Amendment
Several broadband providers argue that open Internet rules are inconsistent with the free speech guarantee of the First Amendment.101 These commenters generally contend that because broadband providers distribute their own and third-party content to customers, they are speakers entitled to First Amendment protections.102 Therefore, they argue, rules that prevent broadband providers from favoring the transmission of some content over other content violate their free speech rights. Other commenters contend that none of the proposed rules implicate the First Amendment, because providing broadband service is conduct that is not correctly understood as speech.103
In arguing that broadband service is protected by the First Amendment, AT&T compares its provision of broadband service to the operation of a cable television system, and points out that the Supreme Court has determined that cable programmers and cable operators engage in speech protected by the First Amendment.104 The analogy is inapt. When the Supreme Court held in Turner I that cable operators were protected by the First Amendment, the critical factor that made cable operators “speakers” was their production of programming and their exercise of “editorial discretion over which programs and stations to include” (and thus which to exclude).105
Unlike cable television operators, broadband providers typically are best described not as “speakers,” but rather as conduits for speech. The broadband Internet access service at issue here does not involve an exercise of editorial discretion that is comparable to cable companies’ choice of which stations or programs to include in their service. In this proceeding broadband providers have not, for instance, shown that they market their services as benefiting from an editorial presence.106 To the contrary, Internet end users expect that they can obtain access to all or substantially all content that is available on the Internet, without the editorial intervention of their broadband provider.107
Consistent with that understanding, broadband providers maintain that they qualify for statutory immunity from liability for copyright violations or the distribution of offensive material precisely because they lack control over what end users transmit and receive.108 In addition, when defending themselves against subpoenas in litigation involving alleged copyright violations, broadband providers typically take the position that they are simply conduits of information provided by others.109
To be sure, broadband providers engage in network management practices designed to protect their Internet services against spam and malicious content, but that practice bears little resemblance to an editor’s choosing which programs, among a range of programs, to carry.110 Furthermore, this Order does not limit broadband providers’ ability to modify their own webpages, or transmit any lawful message that they wish, just like any other speaker. Broadband providers are also free under this Order to offer a wide range of “edited” services. If, for example, a broadband provider wanted to offer a service limited to “family friendly” materials to end users who desire only such content, it could do so under the rules we promulgate today.111
AT&T and NCTA argue that open Internet rules interfere with the speech rights of content and application providers to the extent they are prevented from paying broadband providers for higher quality service.112 Purchasing a higher quality of termination service for one’s own Internet traffic, though, is not speech—just as providing the underlying transmission service is not. Telephone common carriers, for instance, transmit users’ speech for hire, but no court has ever suggested that regulation of common carriage arrangements triggers First Amendment scrutiny.113
Even if open Internet rules did implicate expressive activity, they would not violate the First Amendment. Because the rules are based on the characteristics of broadband Internet access service, independent of content or viewpoint, they would be subject to intermediate First Amendment scrutiny.114 The regulations in this Order are triggered by a broadband provider offering broadband Internet access, not by the message of any provider. Indeed, the point of open Internet rules is to protect traffic regardless of its content. Verizon’s argument that such regulation is presumptively suspect because it makes speaker-based distinctions115 likewise lacks merit: Our action is based on the transmission service provided by broadband providers rather than on what providers have to say. In any event, speaker-based distinctions are permissible so long as they are “‘justified by some special characteristic of’ the particular medium being regulated”116—here the ability of broadband providers to favor or disfavor Internet traffic to the detriment of innovation, investment, competition, public discourse, and end users.
Under intermediate scrutiny, a content-neutral regulation will be sustained if “it furthers an important or substantial government interest . . . unrelated to the suppression of free expression,” and if “the means chosen” to achieve that interest “do not burden substantially more speech than is necessary.”117 The government interests underlying this Order—preserving an open Internet to encourage competition and remove impediments to infrastructure investment while enabling consumer choice, end-user control, free expression, and the freedom to innovate without permission—ensure the public’s access to a multiplicity of information sources and maximize the Internet’s potential to further the public interest. As a result, these interests satisfy the intermediate-scrutiny standard.118 Indeed, the interest in keeping the Internet open to a wide range of information sources is an important free speech interest in its own right. As Turner I affirmed, “assuring that the public has access to a multiplicity of information sources is a governmental purpose of the highest order, for it promotes values central to the First Amendment.”119 This Order protects the speech interests of all Internet speakers.
Time Warner and Verizon contend that the government lacks important or substantial interests because the harms from prohibited practices supposedly are speculative.120 This ignores actual instances of harmful practices by broadband providers, as discussed in Part II.B. In any event, the Commission is not required to stay its hand until substantial harms already have occurred. On the contrary, the Commission’s predictive judgments as to the development of a problem and likely injury to the public interest are entitled to great deference.121
In sum, the rules we adopt are narrowly tailored to advance the important government interests at stake. The rules apply only to that portion of the end user’s link to the Internet over which the end user’s broadband provider has control. They forbid only those actions that could unfairly impede the public’s use of this important resource. Broadband providers are left with ample opportunities to transmit their own content, to maintain their own websites, and to engage in reasonable network management. In addition, they can offer edited services to their end users. The rules are narrowly tailored because they address the problem at hand, and go no farther.122
2.Fifth Amendment Takings
Contrary to the claims of some broadband providers,123 open Internet rules pose no issue under the Fifth Amendment’s Takings Clause. Our rules do not compel new services or limit broadband providers’ flexibility in setting prices for their broadband Internet access services, but simply require transparency and prevent broadband providers—when they voluntarily carry Internet traffic—from blocking or unreasonably discriminating in their treatment of that traffic. Moreover, this Order involves setting policies for communications networks, an activity that has been one of this Commission’s central duties since it was established in 1934.
Absent compelled permanent physical occupations of property,124 takings analysis involves “essentially ad hoc, factual inquiries” regarding such factors as the degree of interference with “investment-backed expectations,” the “economic impact of the regulation” and “the character of the government action.”125 In this regard, takings law makes clear that property owners cannot, as a general matter, expect that existing legal requirements regarding their property will remain entirely unchanged.126 As discussed in Part II, the history of broadband Internet access services offers no basis for reasonable reliance on a policy regime in which providers are free to conceal or discriminate without limit, and the rules we adopt today should not impose substantial new costs on broadband providers.127 Accordingly, our Order does not raise constitutional concerns under regulatory takings analysis.
