FCC Likely To Lose Net Neutrality Challenge on First Amendment Grounds, Campbell Says
The FCC is likely to lose an appeal of its net neutrality rules on First Amendment grounds because the rules are a violation of the rights of ISPs to function as a free press, argued Fred Campbell, executive director of…
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the Center for Boundless Innovation in Technology, in a new paper. “If the FCC had admitted the Internet offers communications capabilities that are functionally equivalent to the printing press, mail carriage, newspaper publishing, over-the-air broadcasting, and cable television combined, it would have been too obvious that classifying broadband Internet service providers as common carriers is unconstitutional,” said Campbell, former chief of the FCC Wireless Bureau. “Like all other means of disseminating mass communications, broadband Internet access is a part of the ‘press’ that the First Amendment protects from common carriage regulation.” The FCC argued in the order that ISPs aren't entitled to freedom of expression, “but its declaration does not meet the straight face test,” Campbell said. To uphold the order, an appeals court would have to hold that “there is no constitutional right to access mass media communications,” Campbell said. “That would make the [FCC declaratory ruling] Second Internet Order a landmark First Amendment case that would be almost certain to garner Supreme Court review. Given the strong preference of lower courts for following Supreme Court precedent when deciding constitutional issues, the FCC is very likely to lose on First Amendment grounds in an initial appeal of the Second Internet Order.”