Déjà Vu all over again? The Return of Network Neutrality

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Chayila Kleist:  Hello, and welcome to this FedSoc Forum Webinar call. Today, April 25, 2024, we're delighted to host a discussion titled "Déjà Vu All Over Again? The Return of Network Neutrality." My name is Chayila Kleist, and I'm an Associate Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's program, as The Federalist Society takes no position on particular legal or public policy issues. 

 

      Now, in the interest of time, we'll keep our introductions of our guests today brief. But if you'd like to know more about any of our speakers, you can access their impressive full bios at FedSoc.org. Today, we're fortunate to have with us as our moderator Gus Hurwitz, who is the director of law and economics programs at the International Center for Law & Economics, ICLE, and a senior fellow and academic director at the Center for Technology, Innovation and Competition, CTIC, at the University of Pennsylvania Carey Law School.

 

      He was previously a full professor and founding director of the Governance & Technology Center at the University of Nebraska. Prior to that, he was the inaugural research fellow at CTIC and a visiting assistant professor at George Mason University Law School. From 2007 to 2010 he was a trial attorney with the U.S. DOJ's Antitrust Division, working in the Telecommunications and Media Enforcement Section. I'll leave it to him to introduce our panel.

 

      One last note, and then I'll get off your screens. If you have questions throughout the program, please submit them via the Q&A feature found at the bottom of your Zoom screens so they'll be accessible when we get to that portion of today's webinar. With that, thank you all for joining us today. Professor Hurwitz, the floor is yours.

 

Justin Hurwitz:  Thank you so much, Chayila. And it is great to be here. I am joined today by Marco A. Peraza and Professor Raymond Ku. I will give a brief introduction to each of them in a moment. Déjà vu all over again? Net neutrality is back. Literally, about 30 or 40 minutes ago the Federal Communications Commission voted 3-2 on the latest iteration of the net neutrality orders. 

 

I am going to attempt to do the impossible in a couple of minutes and provide a brief level-setting history of the last 25 or so years of net neutrality, just so that we have a baseline for discussion as we turn to the substantive matters that Professor Ku and Marco will be discussing. Raymond, I'm just going to call you Raymond, unless you object. That will be easier.

 

Professor Raymond Ku:  Absolutely.

 

Justin Hurwitz:  So, by way of introduction, Marco Peraza is currently an attorney-advisor for consumer protection to FTC Federal Trade Commissioner Andrew Ferguson. And that is particularly notable because, until recently, he was a legal advisor on wireline competition and cybersecurity matters for FCC, Federal Communications Commissioner Nathan Simington. As of today, while he's at the Federal Trade Commission, he has lost authority over broadband issues, which have now been transferred to the Federal Communications Commission.

 

      Prior to his time at the FCC, he clerked for Judge Michael B. Brennan on the Seventh Circuit Court of Appeals, and he previously worked as a software engineer at Microsoft, where he focused on operating system security and data protection. He is originally from Miami, Florida, and received his law degree from the University of Pennsylvania, good school, and an AB in Computer Science from Dartmouth College. 

 

      Also joining us, Professor Raymond Ku is the John Homer Kapp Professor of Law at Case Western Reserve University School of Law. He has also served as the co-director of Case's Center for Law, Technology & the Arts. His areas of expertise include constitutional law, cyber law, privacy, copyright, and also the First Amendment, which will come in useful in our discussion today.

 

He received his JD from NYU School of Law, where he was a Leonard Boudin First Amendment Fellow in the Arthur Garfield Hays Civil Liberties Program. He also clerked, in his case, for the Honorable Timothy Lewis of the Court of Appeals for the Third Circuit. He practiced constitutional, intellectual property, and antitrust law with Gibson, Dunn & Crutcher, and First Amendment and media law with Levine Pierson Sullivan, both in Washington D.C.

 

Okay, I'm going to start a clock so that I do not take too long briefly summarizing what the heck net neutrality is, so that we know what we are discussing today. The term "net neutrality" is generally dated to, or attributed to, Columbia University's Professor Tim Wu, who, in a 2003 paper, coined the term, expressing concern that ISPs — which, at the time, were primarily telephone and cable companies — might see new internet-based services as competing with their primary services, telephone and video. And, therefore, these ISPs might hamper those services running over their networks, in order to protect their own services. 

 

Now, this basic concern that telecommunications or communications providers might take advantage of their control over the networks in order to gain competitive advantage over complementary services running over those networks wasn't new. In fact, the Federal Communications Commission had spent decades, from the 1950s to the 1980s, fighting with AT&T and its regulated monopoly in order to prevent AT&T from using its control of the telephone network in order to gain competitive advantage, especially in the nascent computer industry. 

 

These proceedings were, in fact, called the "computer inquiries." And they led to an important distinction. The FCC coined two terms: "telecommunications services," which referred to the traditional telephone services that AT&T provided, and "information services," which are complementary services offered that run over those telecommunications services. When Congress updated the Communications Act in 1996 with the Telecommunications Act, it incorporated these two types of services, information services and telecommunications services, into Title I of the Communications Act, information services; and Title II for telecommunications services.

 

And, importantly, telecommunications services are traditionally regulated services. Information services are largely unregulated. So, an important distinction there between Title I and Title II. Now, the Telecommunications Act was primarily written 1993 to 1995, enacted in 1996. And, for various reasons, it really didn't say much at all about the internet, other than Section 230, which, fingers crossed, we will not talk about today in the least. However, by the late 1990s there was increasing discussion about how or whether the FCC should regulate internet service providers. 

 

We had early DSL providers over the telephone network and cable internet providers. And we started to see questions of, "Hey, where do these services fit in, under the Communications Act?" The FCC first addressed this question in a 1998 report issued under FCC Chair Bill Kennard, which argued that "Classifying internet access services as telecommunications services could have significant consequences for the global development of the internet. We recognize the unique qualities of the internet, and do not presume that legacy regulatory frameworks are appropriately applied to it."

 

So, while not expressly classifying internet access services as Title I or Title II, the FCC said, "We don't think that they should be regulated under Title II." And thus began the central debate in net neutrality, whether these services are Title I, largely unregulated services, or Title II, pervasively regulated with, perhaps, some forbearance telecommunication services.

 

Now, I'm going to share my screen, because the next 25 years we cannot talk about in much depth. I'm going to skip past this first slide. I'll come back to that. This is a brief overview of the last 25 years. And I am not going to read through this. Instead, I am just going to use some highlighting. In yellow here, we have the primary regulatory classification efforts or orders that FCC has issued. 

 

So, we have the 1998 report. We have a 2002 classification of cable internet services; 2005, the FCC issues the internet policy statement; 2010, they issue the first Open Internet Order; 2015, the second Open Internet Order, 2017, the Restoring Internet Freedom Order, and today, the latest order that was adopted. What do these do? In green, we have the rough rules that each of these applied. And, by and large, all of these rules have some sort of transparency requirement. ISPs need to disclose to their users how they are controlling, limiting, what the services that they're offering to the users are, so that users can make informed decisions.

 

The three primary rules that most of these orders have had, where they do offer more pervasive regulation, are "no blocking" and some form of "no discrimination" rule.  So, no blocking means that you can't block lawful content.  No discrimination generally means you can't slow down disfavored content or offer paid prioritization to preferred content on just a per-pay basis. So, you can see we've got a lot of different moving parts. And if you look at 2017, with the Restoring Internet Freedom Act, this was a lighter touch, only a transparency rule. 

 

And the FCC, at that point, said, "We will rely on the Federal Trade Commission and the Department of Justice's Antitrust and Consumer Protection Authority to protect consumers, not the FCC's communications regulation authority. Deep breath. This is the most important slide, the back and forth. In 1998, the FCC says, "We're not going to use Title II." In 2000, the Ninth Circuit Court of Appeals said, "We think that Title II is the right way to regulate cable internet service." In 2002, the FCC disagreed and said, "No. We're going to use Title 1 for cable internet service."

 

For the administrative law scholars, you might recognize this as what led to the Brand X opinion at the Supreme Court. So, after that, this was a Title I service. In 2015, the FCC reclassified it as a Title II service; 2017, the FCC re-reclassified it back to a Title I service. And, today, the FCC has re-re-reclassified it back again to a Title II service.  We can also look to the politics of changing presidential administrations, especially over the last twelve years, to see that this reclassification has changed back and forth with changing presidential administrations.

 

Okay, I'm not going to say any more about that history. Raymond and Marco, I expect you can touch more on that. I will finish just by briefly queuing up some of the key fractures for debate here. The biggest one, as I've highlighted, is this question between Title I light touch information service — a largely unregulated classification — and Title II, more pervasively regulated common carrier regulation. 

 

Another question with Title II — and if you happened to watch or go back and read Commissioner Carr's remarks from today's open meeting — Title II, because it is so pervasive a form of regulation, the FCC has used extensive forbearance in order to tailor Title II, saying "We're not going to apply significant portions of this regime." Can we trust the FCC to honor that forbearance? Or, if the FCC, in two years, decides they want to change their mind, can they un-forebear?  How can the FCC tie its hands on these issues?

 

Do we want to rely on ex-ante regulation, such as the FCC issuing rules, or ex-post regulation such as antitrust authority?  Are national security concerns and public safety concerns important in our consideration of net neutrality?  In the order issued today the, perhaps, biggest difference between it and previous orders is that it sounds, substantially, in national security and public safety concerns, which did not play nearly so significant a role in previous iterations.

 

We also have, for those playing administrative law bingo at home, the major questions doctrine in the background here. If you look to the 2015 order, when it was reviewed by the D.C. Circuit Court of Appeals, then-Judge Kavanaugh would have rejected the 2015 order on two grounds. First, he said that it violated what he referred to as the major rules doctrine. He is now on the Supreme Court, and the Supreme Court has now adopted the major questions doctrine.

 

So, will the current order survive a major questions doctrine challenge? And, of course, we also have First Amendment issues. Again, Justice Kavanaugh, when he was on the D.C. Circuit Court of Appeals, he would have rejected the 2015 order as violating the First Amendment. We can also sprinkle in a little bit of the Supreme Court's social media cases this term, raising a number of First Amendment issues that could affect how we think about this order as well. 

 

And the last fracture point or last point of concern, the changing interpretations with changing presidential administrations. Is this any way to run a government? Is this consistent with basic principles of rule of law? Okay. That was eleven minutes. I don't think I've ever covered that much history in eleven minutes before. I am going to hand things off to Raymond for 8-10 minutes to share your perspective, both on the rule that was adopted today and, also, your thoughts on the path ahead.

 

Professor Raymond Ku:  All right. Well, thank you. That was a wonderful summary and introduction. I fear you kind of stole a little bit of my thunder with the overall summary, so I'll try to keep mine a little shorter and more directed. Let me start with the administrative regulatory side of it, since many people may come to net neutrality from that perspective. And, as Gus pointed out, one of the most major questions coming out of the back and forth of reclassification really is the role of the FCC as an administrative agency in interpreting the Telecommunications Act, and who to classify either as an information service or a telecommunications service.

 

      And, as you also mentioned, that was one of those that led to the Brand X decision. And, as a constitutional observer, I wanted to emphasize that that decision led to a very, very interesting split between Justice Thomas and then-Justice Scalia on whether or not the broadband information providers or services should be considered either, through deference to the FCC, an information service, or if they otherwise — Chevron failed under those circumstances — and the Supreme Court should treat it as a telecommunication service.

 

      And Justice Scalia argued for the latter. And Justice Thomas argued that Chevron deference was, in fact, appropriate in the Brand X case. In that case, one of my favorite analogies came up, which was how you would view internet service, whether it was a pizza delivery service — which would, then, kind of fit much more into the traditional telecommunications, data transmission service — or if it was something special that was mixed and involved much more than delivery service but creating pizzas in general, which was the position taken by Justice Thomas.

 

      So, as Gus emphasized, the back and forth here has certainly led to a great deal of uncertainty as to whether or not, and, more importantly, why we should be regulating this kind of internet access in general. I came to this subject through the open access debates, which began when cable television, in particular, started to roll out broadband access through cable networks. 

 

And the concern there is very similar in the sense that efforts were made to impose open requirements on cable broadband providers, in order to ensure competition as well as, the argument went, to protect the free speech rights of companies like AOL, who did not provide the underlying telecommunications service but were otherwise providing an internet service on top of that. So, whether or not cable companies could offer their own, or where they were required to allow AOL to compete with theirs, was one of the initial concerns here.

 

At the time, I was a skeptic. I took the position that the cable industry was arguing that broadband deployment, especially the last mile, which was connecting homes to the broader telecommunication infrastructure, might still require that kind of tying arrangement, in order to produce and encourage the kind of investment necessary. Now, Gus knows probably a lot more about how far we've gone with broadband deployment and connection.

 

Many of the participants and viewers may know that we've still struggled over the last 20 years to provide complete coverage to this country for high-speed internet access. So, we've done better about providing internet access, but high-speed access is still unavailable to many in this country. Now, the other aspect I wanted to talk about, very briefly, is the speech side. Because, from the beginning, proponents have argued that when we're regulating internet service providers, they still maintain a free speech right which may limit and/or prevent the FCC from regulating them or classifying them as a telecommunications service.

 

Now, this is a fascinating question, in part because it touches on the history of common carriers and exactly how common carriage, both status as well as potential immunities, arose both from the common law as well as, in the U.S., in the telecommunications context. And, as Gus also pointed out, it involved current Justice Kavanaugh, who took a very, very aggressive position, both that the FCC's reclassification violated what he would describe as the major questions doctrine today, as well as violated the free speech rights of broadband service providers, and rather categorically so.

 

      The idea that broadband service providers, in his view, are always exercising some degree of editorial discretion that would qualify under the First Amendment as speech, would very much prevent a great deal of regulation of internet service providers, in that context. So, I did also want to touch upon what Gus said earlier also, because of this idea of preventing discrimination in these services. It is kind of the kissing cousin of the Texas and Florida social media restrictions.

 

To what extent social media platforms can regulate who can use them or the content they can post are very similar in this context, except one might say the fundamental question is whether or not the service provided by the broadband service provider companies are comparable to the services provided by social media and, also, largely, to what extent should we be able to disaggregate the various services provided by these entities. So, with that, I just wanted to tee it back up to Gus and Marco.

 

Justin Hurwitz:  Okay. And Marco, I will hand it to you to offer your thoughts on some opening comments on where things stand today and perhaps also what the path forward looks like from where you sit.

 

Marco Peraza:  Thank you, Gus. I think what's clear is that the back and forth is embarrassing for the FCC and for the very idea of the discretion that the FCC is exercising, Chevron deference. This continued back and forth has undermined the confidence that companies and consumers need to have in what their rights are. This is the confidence that allows them to plan their affairs and to make investments. Thankfully, Chevron is probably dead soon, this summer, maybe.

 

      And the result of that is that the Supreme Court is very likely to have a final say in the next few years on whether internet service is a Title I or Title II service. I don't think that republicans and industries should assume that the Supreme Court will overturn this order, necessarily. It might. But there are good reasons to think it might not. And I think that we'll have some time to get into that later.

 

      But I think, in terms of what to do going forward, that a conservative-led FCC should be looking at what a conservative approach to common carrier regulation of online communications under Title II would look like, how to lock the FCC into that kind of approach, and also what opportunities Title II regulation — even if it's not the preferred outcome — presents to solve conservative policy issues like combatting censorship. 

 

      One example here: the FCC has its forbearance authority. Maybe it shouldn't be called an authority. It's really a forbearance requirement. The access of the FCC shall forbear from applying aspects of Title II unless certain criteria are met. And here, there's a good case — and we can get into that later — that those criteria are mostly not met. And so, the FCC should be forbearing even more of Title II than it is here.

 

I do want to have one caveat to your legal history, which is that — contrary to what's often just kind of said offhand — "telecommunications service" did not replace the term "common carrier" in the Communications Act. It exists alongside it. Telecommunications carriers are defined to also be common carriers. But this is like a squares and rectangles thing. All telecommunications carriers are common carriers. But not all common carriers have to be telecommunications carriers.

 

And nowhere does the act make the common carrier mutually exclusive with an information service. And so, the first part of Title II — which is the part that was passed in the part that came in 1932 — applies to common carriers, generally, whereas Part II mostly applies to telecommunications carriers, specifically. And so, because of that, there is reason to think that, for example, Title II might apply properly to online services like instant messaging, text messaging, email, and such. 

 

Justin Hurwitz:  Yeah. That's a really interesting point. And just to add, perhaps, some color to that, there has been a longstanding discussion debate — I'm not sure, actually; debate is a weird word for it — whether voiceover IP services are common carrier services like traditional telephone services. And the way that has been handled is the carriers offering voiceover IP services have said to the FCC, "We'll let you treat us like common carriers. Don't classify us. But we will voluntarily submit to all the same requirements, in order to avoid the legal wrangling over that," so, things like instant messaging, voiceover IP services.

 

It's a really fascinating question. And we can come back to some of the questions about what the term "common carriage" means in this context, and why that's an important distinction. I'd like to start, though, with a somewhat different question, which is not to be snarky about this, perhaps, but why does net neutrality matter? Why do people care about this? And I can't help but put this slide up really quickly. 

 

This is a tweet that many people might remember from just after the Restoring Internet Freedom Order was adopted. This re-reclassified broadband internet services as a Title I service. And this is from the official Senate Democrats' twitter account. "If we don't save net neutrality, you'll get the internet one word at a time," arguing that we were ushering in a world of slower internet performance for those who don't pay for higher speeds. 

 

It was going to be a dystopian, "bring us back to the modem era for non-rich people" sort of environment. And I think, by and large, folks don’t think that that's what happened. So, Marco, I'll turn to you first. Raymond, feel free to weigh in as well. Why does net neutrality matter? Does it matter? What are the concerns here?

 

Marco Peraza:  Yeah, you're right. It does seem like we don't need these rules. Free speech, as of now, there seems to be no issue with ISPs trying to restrict free speech. In terms of availability — and I'm going to contradict Professor Raymond Ku here — I would argue that availability is a solved problem in this country. There is Starlink service being offered coast to coast, including in the most remote parts of Alaska that offers close to 120/20 service.

 

And if the FCC would allow them to launch the numbers of satellites that they want to, they would easily exceed that 120/20 service in all of those locations, especially the more rural ones where their service is the best alternative in the first place. Fair competition: there is more high-speed competition than there ever has been, especially because of the emergence of lower-orbit satellite service, which is low latency and competitive for consumer applications with wired service. 

 

There is also no evidence of dysfunction in the internet connection market. And so we really have no reason to think that these traditional justifications for net neutrality are really warranted. Now, this time around, national security has become a major argument for what the commission voted on this morning. The problem with this argument: it really makes no sense, on many levels and, first of all, the federal government already has expansive authority to restrict foreign ownership of firms. CFIUS, Team Telecom, the ICTS, supply chain rule, are just a few examples.

 

These organizations can play with foreign ownership and even unwind contracts consummated years ago at major expense to the parties. Additionally, we've seen time and time again that Congress has been willing to pass legislation targeting national security concerns like infiltration of our communications networks when the executive has asked them to, the most recent example being the TikTok ban, but also the Secure Networks Act, the Secure Equipment Act, and other such laws.

 

Curiously, until the Democrats had five commissioners on the FCC there was no mention of needing Title II for national security reasons. If these were pressing national security issues, then why didn’t they go to Congress and ask for immediate special authority to address those issues directly. I think the reason is obvious. This is a justification kind of made up on the spot. It doesn't hold water. And they've never actually acted as if it does hold water.

 

The internet is faster. It's cheaper. No one has died despite people saying that people would die as a result of Chairman Pai's order. And no startups have had to pay protection money to ISPs to be able to reach their customers without interference. So, yeah. The answer is no.

 

Justin Hurwitz:  Raymond?

 

Professor Raymond Ku:  All right. I'm going to jump in just to create a little disagreement under these circumstances. As I discussed earlier, open access was one of their earlier parts of this debate. And whether or not broadband providers would discriminate against other internet service providers, I was very skeptical of. Now, the justifications that initially prompted net neutrality — for example, discrimination among services, the throttling of potential competing services — over time, I became convinced that these were legitimate concerns.

 

When we saw both consolidation in the telecommunications provisions of internet service, as well as the content side of internet service, I think this became an even greater concern. So, there was evidence that, I believe it was Comcast, was throttling Netflix and other companies. For example, Sprint has throttled Skype. There are all of these connections between the service providers and then what the FCC and others have described as kind of the edge providers, the edge services.

 

And part of that goes to this idea that we treat internet service providers as an amalgamation of any number of different services. And I think that that's an example where the role of the FCC was very important. Because when these services began to roll out, it was unclear what was going to happen. Was this going to be a world in which AT&T provided everyone with a centralized service, what we would think of as cloud computing today? And then homeowners would all have dumb devices? Or would we see innovation and invention create completely different networks and experiences?

 

So, treating this kind of emerging computer network — and that's in that broader sense — was very useful, and I think arguably helped develop or lead to the development of the internet that we know today. Now, again, that was one example where Congress did, in fact, affirm what the FCC did with the Telecommunications Act.

 

But still, the FCC having that initial role, rather than a court determining whether a computer network is both providing the transmission of data or processing data or hosting data, I think is much more appropriate and much more democratic, in the sense that we are having experts and other people, especially the public, being able to comment on these rules, as opposed to litigants and judges that sometimes need to be informed of what the basic technology is, in and of itself. And, here, I wouldn't just go with national security.

 

Because the idea of privacy actually jumped out at me as a more significant concern. Though, as Marco pointed out, these types of concerns could always be dealt with through individual statutes, in that sense. But the reality is we've had this conflict between what were traditional telephone companies that we're used to providing non-discriminatory services protecting the privacy interests of their customers, and then the kind of wild west of internet companies. And now, it's very clear that even your basic broadband service provider is gathering as much information as possible and then marketing that information, kind of in this digital age.

 

And so, anything that bears upon that would be very useful and appropriate in today's society, since we've been at a kind of impasse for some time. The other thing that I do want to emphasize here — I know Gus didn't want to talk about it — is 230. So, this is the statute that provided service providers with immunity, especially immunity when we think of cases involving defamation or copyright infringement, initially, but anything involving speech that could be attributed to the service but was originally posted by somebody else.

 

And I think one of the earlier values of common carriage was the kind of distinction between "I am carrying and transmitting data, so I should be limited in my ability to have or be subject to liability for the speech that I'm carrying or the information I'm carrying," and, as we've seen the internet develop, 230 has kind of been there to give these service providers their cake and have them eat it too, which is they can now curate their networks in great detail with controlling much of the content that's available and still benefit from immunity, as opposed to kind of having to be forced to choose between non-discrimination and the greater freedom to curate content.

 

So, I'm hoping that what's going forward here will help resolve some of these issues, let alone whether we should be -- I think both of you raised the concept of whether we should be adopting a functional approach towards this, thinking of messaging and voiceover IP as distinct services that can be broken out from what networks do. Or should we just treat it all as one giant bundle of services, to the extent that a company could offer messaging services as well as message posting or provide their own advertising? Does that then, essentially, put them all in the category of constitutionally protected speakers?

 

Justin Hurwitz:  So, to tie a couple of things together -- first, actually, I will interject for the audience members. If anyone has questions, you should have the Q&A feature that you can write any questions, type any questions into. And I will integrate those into the discussion as we move forward. So please, if you do have questions, feel free to enter them at any time. Raymond raises a really important point, and one of the most challenging issues with the entire net neutrality, or, more generally, open access, open platforms discussion. 

 

      The role of research and development and innovation, there are two competing stories here which are both true. One of the stories is that open platforms that allow third parties to access those platforms on an open access, equal access basis, they facilitate innovation on the platform. So, if ISPs are required to be open platforms, that might give us new features, new applications, new Facebooks, TikToks, Netflix, America Onlines, instant messaging, all of those things that run on top of the networks.

 

      At the same time, a lot of innovation occurs vertically within the network where you need to have changes made within the network in order to facilitate new features to support new applications. And those cannot be done, necessarily, on an open platform basis, purely. They require integration between the network layer and the application layer, which might violate principles of neutrality or openness. And, importantly, if you want the network providers to make investments to develop those technologies, they need to be able to receive returns on those investments on the back end.

 

      So, you have two competing innovation stories. The first is neutral open access facilitates innovation. The second is vertical integration with the ability to receive returns on your investments creates innovation. And how we balance those different forms of innovation, it's a really complex story. So that's in the background here with the entire net neutrality, open networks discussion. And this also raises -- and this will be my next question. Raymond, you started to discuss this as well.

 

We have a lot of concerns right now about Section 230 and the conduct of platforms. A little bit of stuff about TikTok in the news over the last couple of days, over the last several years, social media platforms' online censorship concerns and the like. We've had all sorts of laws and regulations and lawsuits involving the conduct of platforms. Net neutrality deals with the conduct of the networks over which those platforms operate.

 

We generally, at least legally, think about the networks as distinct from the services and other platforms running on top of the networks. My question, which I'll just ask in a very blunt, direct way is does that make any sense? Should we think of these as separate sorts of things that are subject to separate regulatory regimes? Or should we treat like as like?

 

Professor Raymond Ku:  Well, that's a great question. And, as you point out, it's one that is talked about but does not become the main focus for many of these discussions. And I would say right now that, in many aspects of telecommunications, as well as internet policy, we have seen both models successfully work. The easiest example of what you were describing as kind of the closed community is currently the fight over Apple and the iPhone and Apple's walled garden view of creating its -- and I will call it a digital network. It's not simply a telephone service or an entertainment service, but a network of all their devices and the people that use them.

 

And Apple's argument is "We can create a much more secure system and infrastructure for our clients to communicate. We can guarantee reliability and functionality when we control the entire pie.” And, as you said, many telecommunications providers, on the other hand, have allowed their system to be open and connecting to any number of other sources. And, in the original net neutrality discussion, the FCC's position was this is essentially a very, very productive cycle. I'm forgetting the exact words that they use.

 

Justin Hurwitz:  A virtuous cycle.

 

Professor Raymond Ku:  The virtuous cycle. And I'm a big believer in the virtuous cycle. I do think that openness matters. But I'm also a firm believer that sometimes, in terms of technology, closed systems can be more efficient and much more effective and provide users with a very important choice. And whether we're talking about open access, net neutrality, or, ultimately, what we're seeing in terms of antitrust prosecutions, both here and in the European Union, is that fundamental debate. Should it be open? Should it be closed?

 

And I think that one benefit of the Obama administration's network neutrality policy — and I don't know if that specific provision is carried over into the new one — was that it was essentially giving these service providers choice, which was essentially how are you representing your services. If you're an exclusive service — for example, you're Amazon — you want to build your own infrastructure. You can. You don’t have to allow anyone else onto your network or to use your network.

 

But if you are open to the public and, therefore, treated much more in the lines of a traditional either common carrier or public accommodation, then you would be subject to these limitations. And I do think that the benefit that we've seen over time is that they have, despite examples of throttling, despite some service problems, the most notable one being, I think it was, the Santa Clara fire where Verizon shut down the Fire Department service, whether by policy or accidentally.

 

The openness that came with telephone networks has allowed a great deal of innovation for other companies. So, we're not seeing AOL/Time Warner as the dominant internet service for a large portion of this country, or Comcast's Roadrunner service that then precluded Google or Microsoft adding services on top of that on their own.

 

Justin Hurwitz:  Marco, I'll turn the same question to you. But I want to add in, since you are now at the FTC, the Federal Trade Commission — which is one of the nation's two primary antitrust enforcers — I wonder if you could also offer any thoughts on the role of ex-post antitrust enforcement compared to ex-ante regulation as a way of addressing some of these concerns.

 

Marco Peraza:  Sure. I want to make sure, if I didn't say it earlier, that I'm speaking for myself, not for either my previous or current boss. But, in terms of your original question, I want to take issue with the idea that Section 230 protects these platforms from regulations that demand viewpoint neutrality. Even if you buy that 230 operates as a limitation on federal common carriage law — and, for what it's worth, the courts have said it does not operate as an exception to antitrust law — 230(c)(2), which is the part that provides some immunity for moderation decisions, is not a blank check.

 

It lists the kinds of content that they have immunity for removing. It says that they can't be held liable on account of any action voluntarily taken in good faith to remove content that they or the user consider to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable. Though, yes, there is a catch-all there, that every good lawyer should know that catch-alls don't mean everything under the sun. Under well-established principles of statutory interpretation, they're interpreted as only encompassing things of the same kind as already appeared in the list.

 

In terms of what the correct approach should be, I do want to go back to the previous point I made, which is that some of these services may well be common carriage services. And I thought one really interesting thing to happen this term at the Supreme Court is that it seemed like some of the justices, during the NetChoice oral arguments, were trying to distinguish between those components of the online services that are purely communications — think things like email or instant messaging — or things that begin to look more like the platform's own speech, like what's on your news feed, what's recommended to you, what they put on their front page.

 

And I think there might be a similar principle when it comes to what's a common carriage service under Title II. And it's very possible that things like Gmail, like instant messaging, meet the definition of common carriage, both in the common law, which is incorporated into the FCCs statute, as well as the definition of common carrier in the Telecommunications Act, 47 USC 153. And that definition says that to be a common carrier — I'm going to take out the interstate language, just for simplicity — you have to be engaged as a common carrier for hire in communication by wire or radio.

 

And I think it's very hard to argue that a service like Gmail, or like instant messaging, is not holding itself out to the public as open to all of the criteria of common-law common carriage and that's not engaged in communication for hire by wire or radio. In fact, the Communications Act foresees that there will be common carriers that do not engage, that do not offer their service over their own facilities.

 

And so, 152 actually says that for those common carriers that communicate solely through facilities owned by other carriers, in the way that an email service communicates purely over facilities of actual ISPs, that only Sections 201 to 202 of the Communications Act applies to them. Those include the non-discrimination as well as the original interconnection provisions of the act. And so, if the FCC made these kinds of carriers subject to its jurisdiction under Title II, it could, for example, require that instant messaging services allow interservice messaging. 

 

So, it could require that, for example, IMessage link up to text messages, or to RCS messages, which is the competing service being pushed by Android makers. It could require that they don't engage in viewpoint discrimination. And so, I do think, to some extent, it can make sense to have both. I would say the general approach should be forebear unless there is a real problem. And not just forebear in the formal Communications Act sense, but that we shouldn't be trying to solve problems that don't exist. So, to the extent that problems do exist, as they obviously do with regard to censorship, then that's an area where that should be pursued.

 

Justin Hurwitz:  So, the clock is a harsh mistress. We have about five minutes left. I would like to ask each of you one last question and request that you incorporate any closing thoughts into this. I'll ask the question very briefly. The First Amendment: I could probably leave that as the question. The Supreme Court is hearing several First Amendment cases. Justice Kavanaugh raised First Amendment concerns about the previous orders. How do you think the First Amendment is going to affect the Court's interpretation of today's rule? And, Ray, we can start with you.

 

Professor Raymond Ku:  All right. Well, it's going to play a major role. In all of these regulations, whether we go all the way back to mail carriage, the telegraph or the telephone, and radio as well, there's always been a concern, rightly so, that this involves communication. And communication is a fundamental proponent or portion of speech. And so, these have kind of existed, in some cases, just fortuitously. The idea that AT&T was willing to kind of sacrifice some of these free speech arguments in order to continue its largely monopoly practices is kind of a fortuitous circumstance in history.

 

      And the same thing with telegraph providers deciding in the end that their business models of being closed networks weren't as profitable as opening them up to other users. But we've seen this with the push for newspapers, to have newspapers be open to writers, to cable companies, to whether or not a cable company should hold open a portion of their channels for other providers instead of just picking their providers on their own. And I think the difference between what we're going to see with speech for internet broadband providers versus social media networks is essentially a function of what are they doing.

 

Are they creating networks that are simply interconnections of devices where information is being transmitted? Or are they creating social networks or human networks that require spaces for people or create spaces for people to interact and communicate with one another, but, also, in that sense, feel safe in that environment, to be able to communicate or be free from harassment or false information. And those, while they are clearly speech taught, don't have to be considered necessarily through a speech lens.

 

So, public accommodations law and original common carriage law did not begin with speech. It's the carrying of goods and people, public accommodations while serving people. And we can arguably look at many of these problems from a First Amendment perspective along that line. And, if we're doing so, it wouldn't be the much more strict traditional approach of "any regulation is essentially unconstitutional," unless it satisfies a compelling government interest and strict scrutiny.

 

Ironically — or perhaps I'll throw this out to you — the 303 Creative case, which was the web designer and gay marriage case — may be a very informative kind of precedent here, because that was very much the tension between the majority arguing, "Hey, web design is speech and, therefore, is strictly protected," and the dissent, Justice Sotomayor arguing, "We're not talking about regulating speech. We're talking about regulating a business practice, in terms of who you may serve and how you may serve."

 

Justin Hurwitz:  So, with that, we are at the hour. But, Marco, I want to give you the floor for any last thoughts that you might have.

 

Marco Peraza:  I mostly agree. I'll just say, look, the post office isn't speaking when it carries the letter. You know, part of the traditional test for this kind of stuff is how attributable is what's being said to the alleged person claiming that it's their speech being restricted by being forced to carry it. No one attributes your tweet to Comcast. No one reads the offensive tweet and says, "There's Comcast at it again."

 

Chayila Kleist:  So sorry to have to jump in here. We have hit the top of the hour, and so we'll need to wrap up. To our panel, thank you so much for joining us today. Really appreciate you taking this portion of your days and sharing your valuable time and expertise. Thank you also to our audience for joining and participating. We welcome listener feedback by email at [email protected]. And, as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.