In the wake of conflicting decisions by federal courts over the First Amendment validity of broadband access requirements, the Federal Communications Commission sought comment on the issue as part of a larger rulemaking proceeding on the regulatory status of cable modem service.

     The approval of the AOL-Time Warner merger by the FCC and Federal Trade Commission in early 2001 came with certain access conditions.  The FTC’s consent order required AOL Time Warner to make available the competing service offered by the second largest ISP, EarthLink, before AOL began offering its own broadband service in Time Warner’s largest cable divisions.  Within 90 days of AOL Time Warner’s service offering, two other non-affiliated ISPs had to be provided. 

     In its smaller cable divisions, AOL Time Warner was required to enter into agreements with at least three non-affiliated ISPs within 90 days after making AOL’s broadband service available.  The consent decree, which also contains provisions prohibiting content discrimination in the provision of interactive services, has an effective term of five years.

     The FCC required AOL Time Warner to allow all customers to choose Internet service from any unaffiliated ISP that has a contract with the merged company to use its cable TV facilities for distributing Internet access service.  The unaffiliated ISP must be allowed to provide “first screen” service to its customers without subscribers first having to access intermediary screens.  Unaffiliated service providers also must be able to have a direct billing relationship with their subscribers. 

     In addition, AOL Time Warner is prohibited from discriminating against those service providers in offering customer technical support, address management, caching services, multicasting capabilities, or other technical functions.  The FCC also barred AOL Time Warner from offering any advanced high-speed instant messaging service that includes one- or two-way streaming video communications using a “names and presence directory” unless it can demonstrate that the offering will not be anticompetitive.  Applications for Consent to the Transfer of Control of Licenses and Section 214 Authorizations by Time Warner Inc. and America Online, Inc., 16 FCC Rcd. 6547 (2001).

     A year after the merger, however, the FCC declared that cable modem service is an interstate “information service” and not a “cable service” or a “telecommunication service.”  A principal implication of the Commission’s declaratory ruling is that open access or interconnection requirements are not necessarily compelled by the Communications Act, and presumably not permitted by state and local authorities.  Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, FCC 02-77 (rel. March 15, 2002).   

     Accordingly, the FCC simultaneously initiated a Notice of Proposed Rulemaking to explore the extent of its authority to regulate cable modem service under its ancillary authority.  It also asked whether classification of the service as an interstate information service necessarily preempted the exercise of local authority, including open access requirements.  The Commission also sought comment on “whether a federally mandated system of multiple ISP access would violate the First Amendment rights of cable operators” and whether such a requirement would constitute a regulatory “taking” of cable operators’ property in violation of the Fifth Amendment.

     While the debate over the constitutional and regulatory implications of open access requirements continued before the Commission, the matter quickly moved to the judicial forum as well.  Less than two weeks after the FCC’s declaratory ruling was issued, a coalition of consumer groups appealed the cable modem classification, claiming that the “FCC’s ruling violated public’s First Amendment rights to engage in uncensored social, artistic and political discourse, as well as to receive information.”  See Brigette Greenberg, “FCC’s ruling on Internet over cable challenged in court,” Communications Daily, March 26, 2002 at 1.  This challenge to the FCC was immediately followed by appeals filed by industry groups, including Verizon and EarthLink.

     The FCC’s decision on the regulatory classification of cable modem service and the resulting appeal is likely to crystallize the ongoing debate over the constitutionality of open access requirements.  Local broadband access requirements in cable television franchises already had prompted litigation over the legality of such requirements.  Although the cases presented various issues of federal communications and antitrust law, regulatory classification of service, federal preemption of local authority, and questions involving the Contract and Commerce clauses, the focus of this chapter is the claim that such requirements violate the First Amendment.

     Two circuit courts invalidated access requirements without addressing the First Amendment or other constitutional issues.  The U.S. Court of Appeals for the Fourth Circuit held that a local requirement was inconsistent with Section 541(b)(3)(D), which prohibits franchising authorities from requiring cable operators to provide telecommunications facilities.  MediaOne Group, Inc. v. County of Henrico, Va., 257 F.3d 356 (4th Cir. 2001).

     The Fourth Circuit affirmed the district court, which had invalidated the access requirements without reaching the First Amendment issue.  MediaOne Group, Inc. v. County of Henrico, 97 F. Supp. 2d 712 (E.D. Va. 2000).  Although the initial complaint included a count based on the First Amendment, it was not part of the motion for summary judgment that resulted in the initial decision. 

     Similarly, the U.S. Court of Appeals for the Ninth Circuit struck down access requirements on statutory grounds in AT&T Corp. v. City of Portland, 216 F.3d 871 (9th Cir. 2000).  There, however, the district court addressed the First Amendment question, and concluded that an access requirement did not implicate the cable operator’s speech interests.  AT&T Corp. v. City of Portland, 43 F. Supp. 2d 1146 (D. Or. 1999).  In reversing this decision, the Ninth Circuit declined to reach the constitutional issue.

     In contrast, the U.S. District Court for the Southern District of Florida confronted the First Amendment questions directly in Comcast Cablevision of Broward County, Inc. v. Broward County, 124 F. Supp. 2d 685 (S.D. Fla. 2000).  Judge Donald M. MiddleBrooks held that the technology of Internet transmission could not be regulated without restricting speech.  “Under the First Amendment,” he wrote, “government should not interfere with the process by which preferences for information evolve.  Not only the message, but also the messenger receives constitutional protection.”  Id. at 693.

     Accordingly, Judge MiddleBrooks applied strict First Amendment scrutiny to the access requirement, finding that “differential treatment is not justified by some special characteristic of the medium being regulated.”  He rejected Broward County’s argument that the open access ordinance regulates “only trade practices and not speech,” concluding that “content and technology are intertwined in ways which make analytical separability difficult [and] perhaps unwise.”  Id. at 692.

     Still other courts have avoided issuing opinions on open access issues, opting to await the FCC’s decision on the regulatory classification of cable modem service.  In GTE.Net, LLC v. Cox Communications, Inc., 185 F. Supp. 2d 1141 (S.D. Cal. 2002), the ISP brought an action against a cable television operator, claiming that the operator’s exclusive agreement for cable modem service violated non-discrimination requirements imposed on common carriers under the Communications Act.  The court decided to defer to the FCC’s resolution of the regulatory classification question under the primary jurisdiction doctrine.