The Gatekeeper Theory Is Content-Based

Judicial precedent also indicates the “key insight” of the virtuous circle theory—that ISPs have the ability to act as gatekeepers stand- ing between edge providers and consumers344_{—is neither new nor}

content-neutral. The net neutrality rules based on this “insight” pre-

337. Id. at 44–45. 338. Id. at 72. 339. Id. at 73–75.

340. The effects of the printing press on culture and innovation were recognized as early as the seventeenth century. Id. at 43–45.

341. See Comcast Cablevision of Broward Cnty., Inc. v. Broward Cnty., Fla., 124 F. Supp. 2d 685, 694–95 (S.D. Fla. 2000) (noting that concerns expressed by the anti-Federalists led to the adoption of the Bill of Rights, including the First Amendment).

342. Id.

343. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010). 344. See Second Internet Order, supra note 4, at para. 20.

sume that (1) the operators of mass media communications systems are an intrinsic threat to expression, rather than an enabler of it; (2) the government has authority to establish an enforceable right of ac- cess to private mass media communications systems that eviscerates the editorial discretion of the press; and (3) the government should exercise that authority without regard to the scarcity of the medium (e.g., the availability of competing alternatives) or the free expression interests of ISPs. These presumptions reveal the virtuous circle the- ory as a cleverly repackaged and far more expansive version of the traditional media access arguments the Supreme Court rejected in

Miami Herald Publishing Co. v. Tornillo.345

Tornillo held that a statute requiring newspapers to give political

candidates a right to equal space to respond to criticism of their records violated the Press Clause. The Court rejected arguments sub- mitted by media access proponents in Tornillo that are substantially the same as those cited by the FCC in support of its gatekeeper the- ory.346 _{The Court detailed the contentions of access proponents that}

(1) “economic factors” had made “entry into the marketplace of ideas served by the print media almost impossible,” (2) competing newspa- pers had been “eliminated in most of our large cities,” and (3) most consumers subscribed to or read only their locally available newspa- pers.347 _{Nevertheless, the Court concluded: “However much validity}

may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism” for enforcement, and “if it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment,” including its prohibition on government ef- forts to abridge the freedom of the press.348

Tornillo denied the claim that government restrictions on editorial

discretion in the form of compelled speech are content-neutral so long as the press remains free to publish its own content.

The Florida statute exacts a penalty on the basis of the content of a newspa- per. The first phase of the penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and

345. 418 U.S. 241 (1974).

346. Compare id. at 247–54, with Second Internet Order, supra note 4, at paras. 80–84.

347. Tornillo, 418 U.S. at 247–54. Media access proponents theorize that when the First Amendment was ratified “the press was broadly representative of the peo- ple it was serving” and “[e]ntry into publishing was inexpensive.” Id. at 248. Re- cent scholarship posits that this account is “ahistorical, a postindustrial fantasy of preindustrial print’s efficacy . . . .” TRISH LOUGHRAN, THE REPUBLIC IN PRINT:

PRINT CULTURE IN THE AGE OF U.S. NATION BUILDING, 1770–1870, at xx (2007).

Loughran’s research reveals that, “Even in 1800, most Americans lived beyond the reach of any printed matter that was not produced by their own local printer or privately sent to them through personal connections.” Id. at 21.

materials and in taking up space that could be devoted to other material the newspaper may have preferred to print. It is correct, as appellee contends, that a newspaper is not subject to the finite technological limitations of time that confront a broadcaster but it is not correct to say that, as an economic reality, a newspaper can proceed to infinite expansion of its column space to accommodate the replies that a government agency determines or a statute commands the readers should have available.349

In the Second Internet Order, the FCC attempted to avoid

Tornillo’s rationale by claiming that ISPs do not face the same eco-

nomic limitations as newspapers, because providing an Internet end user with “access to one edge provider does not displace another.”350

This attempt to distinguish Tornillo is inconsistent with the FCC’s most recent factual findings in other proceedings that were aimed spe- cifically at (1) the technological capabilities of ISP networks, (2) con- sumer demand for access to Internet content, and (3) the economics of deploying more capable Internet networks.

One month before it issued the Second Internet Order, the FCC found in its Broadband Progress Report that most ISP networks are currently incapable of providing most consumers with “access to the extensive and ever-expanding [voice, data, graphics, and video] offer- ings available today or on the near horizon.”351 _{Based on its examina-}

tion of the actual household usage of today’s consumers,352 _{the FCC}

found that one edge provider does displace another when an end user does not have “access to actual download speeds of at least 25 Mbps and actual upload speeds of at least 3 Mbps (25 Mbps/3 Mbps),”353

because:

• “Americans increasing rely on broadband to perform multiple functions, and consumers within a household routinely use mul- tiple applications simultaneously;”354 _and

• ISP offerings that do not meet the 25 Mbps/3 Mbps benchmark cannot adequately support the simultaneous use of multiple con- tent services that consumers demand.355

In other words, when one member of a household is using a sub-25 Mbps Internet connection to access the content of a particular content provider, other members of the same household are precluded from simultaneously accessing content offered by other providers.356 _This

349. Id. at 256–57 (citations omitted).

350. See Second Internet Order, supra note 4, at para. 559 n.1698.

351. 2015 Broadband Progress Report & Notice of Inquiry on Immediate Action to Accelerate Deployment, GN Docket No. 14-126, FCC 15-10, para. 20 (Feb. 4, 2015).

352. Id. at para. 29. 353. Id. at para. 3. 354. Id.

355. See id. at para. 47. 356. See id.

factual finding directly implicates the same editorial concerns that drove the Court’s opinion in Tornillo.

Separate FCC findings indicate it is “a matter of economic real- ity”357 _{that the virtuous circle does not create enough demand for all}

ISPs to expand their bandwidth to meet the 25 Mbps/3Mbps bench- mark even when the government provides financial assistance. In its

Connect America proceeding, the FCC determined that it must provide

governmental financial support for the deployment of Internet infra- structure in rural areas because deployment is commercially uneco- nomic,358 _{but it has refused to provide funding for broadband}

infrastructure that is capable of supporting simultaneous access to multiple content streams.359 _{Two months before it issued the Second} Internet Order, the FCC found it would be too costly for the govern-

ment to support the deployment of rural Internet infrastructure at the 25 Mbps/3 Mbps level360 _{that the FCC found consumers demand.}361

The FCC’s findings in its Broadband Progress Report and Connect

America Fund proceeding demonstrate that the economic reality faced

by ISPs is consistent with the economic considerations cited by the Court in Tornillo. Like newspapers, ISPs cannot “proceed to infinite expansion of [their network] space to accommodate the [content] that a government agency determines or a statute commands [Internet end users] should have available.”362

Tornillo also forecloses the FCC’s contention that its rules are con-

tent-neutral because they “do not burden any identifiable speech.”363

The Court would have reached the same result even if the compulsion to publish at issue had not been limited to the publication of rebuttals by political candidates:

Even if a newspaper would face no additional costs to comply with a compul- sory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A news- paper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exer- cise of editorial control and judgment. It has yet to be demonstrated how gov- ernmental regulation of this crucial process can be exercised consistent with

357. See Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 257 (1974). 358. See CAF Notice II, supra note 94, paras. 4–10.

359. See Connect America Fund, Report and Order, WC Docket No. 10-90, FCC 14- 190, paras. 27–28 (Dec. 18, 2014).

360. Id.

361. Id. at para. 3.

362. Tornillo, 418 U.S. at 257.

First Amendment guarantees of a free press as they have evolved to this time.364

This passage indicates that it does not matter whether a government restriction on the editorial function of the press is related to the sup- pression of identifiable speech: strict scrutiny applies.365