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Net Neutrality For The Broadband Goose And The Silicon Valley Gander

WASHINGTON, DC – DECEMBER 14: Federal Communications Commission Chairman Ajit Pai (Photo by Alex Wong/Getty Images)

Opponents of the FCC’s vote to scale back net neutrality rules argue that it enables “powerful companies . . . decide how or when we use the internet,” as Senator Elizabeth Warren put it[1]. However, powerful companies such as Google, Facebook, Apple, and Amazon all opposed the FCC’s scale back. In an op-ed in the Washington Times, FCC Chairman Ajit Pai tried[2] to turn the tables by arguing[3] that “Silicon Valley platforms today pose a far greater threat to a free and open internet than do internet service providers.”

While Pai did not advocate applying net neutrality to edge providers, both Democrats and Republicans have. Soon to be former Senator Al Franken opined[4] that “Facebook, Google, and Amazon – like ISPs – should be ‘neutral’ in their treatment of the flow of lawful information and commerce on their platforms.” Populist conservatives including Steve Bannon and Tucker Carlson support public utility regulations for these platforms Pai’s critics argue that expecting the same regulations from Apple and Optimum is comparing apples to oranges. According[5] to Slate’s April Glaser, “equal access to any one website or platform isn’t the same thing as equal access to the internet writ large.”

Tech Crunch’s Devin Coldewey contends[6] that because edge providers are meant to cater to various consumer preferences, viewpoint discrimination “is a feature, not a bug.” Those who oppose censorship are “free to choose another search engine, quit Facebook and Twitter, or even start their own platforms,” while most Americans cannot easily change their ISPs. But, telling opponents of Facebook or Twitter censorship to start their own platforms is no different than telling net neutrality supporters to start their own broadband companies. Edge providers benefit from ‘network effects.’ Facebook and Twitter’s greatest value is the hundreds of millions of people on the networks.

Similarly, Google’s search results are so accurate because they have data accumulated from the over two trillion[7] yearly searches–and no other search engine can design result algorithms from such a large database. Moreover, Pai did not merely speak about search engines and social media. Android and Apple’s mobile app stores often practice political censorship, as have domain name and website hosting services.

Kicking a website off its domain name or excluding an app from all IPhones restricts content creators far more than any ISP could. Both these restrictions and network effects can work in tandem to prevent effective competition. A user who posts on Gab, a self-described free speech alternative to Twitter, will only reach a small fraction of the audience.

Additionally, the Google Play and Apple App stores banned Gab for not censoring its users. There is ample legal justification to apply anti-censorship restrictions based on net neutrality principles. The Obama era FCC enacted its net neutrality rules for ISPs by classifying them as common carriers.

The Supreme Court has defined[8] this term as a company that “makes a public offering to provide” communications facilities which allow the public to “communicate or transmit intelligence of their own design and choosing.” Dominant social media companies define themselves similarly, albeit with less legal jargon. Twitter’s mission[9] is to “build a platform where all voices can be heard” and “to give everyone the power to create and share ideas and information, instantly, without barriers.” Just as important, there are innovative models for how questions concerning network censorship and discrimination can be adjudicated.

Hal Singer advocates[10]“Net Tribunals,” patterned after those which the 1992 Cable Act established. They resolved carriage disputes between programming networks and cable companies–disputes that presented economic and social questions analogous to the network neutrality debate. Like the Cable Act tribunals, “Net Tribunals[11],” could base their decisions on justifications outside traditional antitrust law to include unreasonable content discrimination or harm to innovation.

Courts also consider market power and whether the service is essential to the public interest when defining common carriers. Edge providers like Google and Amazon have far greater market share percentage than any broadband company. The Supreme Court held[12] earlier this year that “Social media in particular” is the “most important place . . . for the exchange of views today.” Even Glaser acknowledges, “Facebook, Google, and Twitter are all pretty much essential to anyone trying to push a personal brand or issue online.”

The platforms also have statutory protections based on the premise that they are open forums. Section 230[13] of the Communications Decency Act immunizes most major edge providers for legal liability resulting from their users’ violations. Congress justified this privilege because it believed these platforms “offer a forum for a true diversity of political discourse.” Both sides of the net neutrality debate want Congress to address the issue.

Broadband providers opposed the FCC’s common carrier rules because of its economic regulations. However, they will support legislation which prohibits blocking, throttling, or discriminating content based on viewpoint. Congress should demand the same from the dominant edge providers.

I am a law professor at Michigan State University where I direct its IP, Information & Communications Law Program.

This post was co-authored with Mark Epstein, an antitrust and freelance writer based in Washington, D.C.

References

  1. ^ put it (twitter.com)
  2. ^ tried (www.washingtontimes.com)
  3. ^ arguing (www.fcc.gov)
  4. ^ opined (arstechnica.com)
  5. ^ According (www.slate.com)
  6. ^ contends (techcrunch.com)
  7. ^ two trillion (searchengineland.com)
  8. ^ defined (scholar.google.com)
  9. ^ mission (about.twitter.com)
  10. ^ advocates (www.americanbar.org)
  11. ^ “Net Tribunals (www.forbes.com)
  12. ^ held (scholar.google.com)
  13. ^ Section 230 (www.law.cornell.edu)

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