FOR RELEASE: May 4, 2010

Contact: Richard T. Kaplar
The Media Institute
703-243-5700

Arlington, Va., May 4, 2010 – If the Federal Communications Commission succeeds in reclassifying broadband providers as common carriers under Title II of the Communications Act,  it could reduce the level of First Amendment protection for those providers.  And the FCC’s current ability to do that “is quite limited, if not nonexistent.”

That warning was sounded today by noted First Amendment attorney Robert Corn-Revere in a Perspectives issue paper published by The Media Institute.

For the past five years, FCC Internet policy has treated broadband service as an information service, free from common-carrier obligations.  In fact, Corn-Revere notes, the Commission persuaded the Supreme Court in a 2005 case that “information service” was the proper way to classify broadband.

But since the U.S. Court of Appeals for the D.C. Circuit ruled on April 6 that the FCC lacked the authority to regulate broadband networks, proponents of “net neutrality” have tried to skirt that ruling by pushing to reclassify broadband service as common carriage – which does fall under the FCC’s regulatory authority.

That strategy could backfire in the courts, however,  based on recent judicial trends.  Corn-Revere notes that in Citizens United v. FEC, Justice Kennedy’s majority opinion states: “We must decline to draw, and then redraw, constitutional lines based on the particular media or technology used.”

Corn-Revere concludes: “The majority’s core First Amendment findings point to a continuing recognition of full First Amendment rights for new communications technologies.  This trend necessarily would limit any attempt to expand FCC jurisdiction over new media simply by manipulating regulatory classifications.”

Robert Corn-Revere is a partner in the law firm of Davis Wright Tremaine in Washington, D.C., and has successfully defended the First Amendment before the U.S. Supreme Court.  His paper, “Defining Away the First Amendment,” is available online from The Media Institute at www.mediainstitute.org, and will be available in hard copy in the near future.