The FCC’s New Theory of the First Amendment

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This article describes the Federal Communications Commission’s new theory of the First Amendment, as articulated in the agency's decision sanctioning Comcast for blocking certain peer-to-peer file sharing traffic, later reversed by the U.S. Court of Appeals for the District of Columbia Circuit. The article proposes a unified theory with which to analyze First Amendment challenges to proposed regulation of discriminatory denials of access to broadcast, cable, or Internet media. It builds on my previous research into the democracy-promoting implications of decentralized, collaborative Internet media as opposed to traditional media's top-down model.

My analysis begins with an account of the fall and rise of FCC regulation of the mass media and the Internet through four distinct eras in the FCC’s conception of its own authority and the constraints imposed upon it by the First Amendment. In the first era, the “statist regulatory period,” the FCC doled out telecommunications licenses to entities favored by the government and vigorously regulated broadcast content. In the second era, the “democracy-promotion period,” the FCC regulated the content of speech in an attempt to engender a more robust democratic culture in the aftermath of World War II. In the third era, the “deregulatory period,” the FCC tolerated blatant discrimination against minority political or ethnic viewpoints, as well as long-term campaigns to reduce competition in media content by merging corporate owners. In the fourth and most recent era, which began in 2005 with renewed citizen activism and congressional attention to bias within the mass media and Internet, the FCC announced new nondiscrimination principles focused on the Internet, but with clear implications for broadcast media.

The FCC handed a stunning victory to advocates of media accountability in 2005 and again in 2008 when it endorsed a different theory of the First Amendment. This new theory moves away from selective deregulation of corporate media (i.e. granting federal or state exclusive rights without any countervailing responsibilities to the public) by prioritizing the right of media consumers to access content and communications platforms on a more equal footing, rather than the right of large corporations to acquire and control ever-larger combinations of media infrastructure. The decision, if upheld, may herald a new era of attention to voters’ First Amendment interests in accessing and benefiting from regulated telecommunications facilities such as broadcast airwaves or cable networks. I attempt to theorize this new vision of the First Amendment using four strands of constitutional and legal theory: formalist attention to constitutional text and precedent, purposivist and originalist emphasis on the principles and contexts underlying constitutional text, economic approaches to efficient or cost-avoiding interpretations of legal language, and egalitarian advocacy of citizen-empowering constitutional narratives.

Except, perhaps, for formalist analysis, which applies ambiguously to FCC regulation of private telecommunications firms, the theories support the FCC’s new emphasis on free speech and access to knowledge. Formalism, whether at the level of text or precedent, provides little clear basis for a theory of the First Amendment that permits the federal government to regulate electronic speech in the interest of large corporations, but without any safeguards for the public interest in accessing scarce rights-of-way, or airwaves. Originalist analysis reveals that the purposes of the First Amendment were to prioritize the penetration of facts and debate relevant to controversial political issues throughout the body of the citizenry, rather than the illusory liberty interests of corporations or combinations of government infrastructure licensees. Economic analysis confirms that permitting federal or state infrastructure licensees to leverage their unique control over strategic communications bottlenecks into ownership of content providers threatens the total output, competitive pricing, and overall quality of content. Not only the theorists of antitrust and telecommunications economics, but also those scholars doing empirical work on the output of news and political content, confirm the materialization of these threats. Finally, substantive political theory underlines the link between media consolidation and deregulation and a resulting crisis in access by citizens and voters to essential information and diverse viewpoints.