Speech isn’t free when ISPs can set prices based on content

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FedEx doesn’t charge based on what a document says. Neither should Comcast or AT&T.

California Public Utilities Commissioner Catherine Sandoval has arguedand voted – in favor of regulating broadband infrastructure companies as common carriers, in much the same way as telephone companies, but with a “light touch”. She made her case in testimony at a congressional hearing in Sacramento in September, and later polished it and submitted it to the FCC for consideration in its network neutrality deliberations.

In doing so, Sandoval focused on the risks of allowing ISPs to make whatever deals they want – or ignore the deals they don’t – and then leaving it up to content and service companies to fight out any objections on a case by case basis at the FCC.

One of the risks she highlighted – far and away the biggest one, IMHO – is giving ISPs what amounts to a government-enforced license to regulate the content of speech…

The FCC’s proposal converts ISPs from a conduit for speech into an arbiter who gets to decide who has the fastest, cheapest, best path to reach Internet audiences. The FCC’s proposal does not limit ISPs to choosing who gets the best speeds and terms by who pays the highest price. It empowers ISPs to consider the messenger, message, method of delivering that message (peer-to-peer protocol, ftp protocol or other program or method), competitive effects on the ISP, and any other factor, as long as the FCC subsequently determined it was “commercially reasonable”…

Content-based regulations are “presumptively invalid under the First Amendment.”…“[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

Treating broadband infrastructure – like other telecoms infrastructure – as a common carrier would instead, Sandoval argues, create a transparent and consistent set of rules everyone would play by, regardless of size or political disposition.