The Honorable Byron L. Dorgan
Committee on Commerce, Science and Transportation
322 Hart Senate Office Building
United States Senate
Washington, D.C. 20510
The Honorable Olympia J. Snowe
Committee on Commerce, Science and Transportation
154 Russell Senate Office Building
United States Senate
Washington, D.C. 20510
Re: Support for S. 215, “The Internet Freedom Preservation Act,” To Restore Net Neutrality Protections
Dear Senator Dorgan and Senator Snowe:
On behalf of the ACLU, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nationwide, we are writing to express our support for your bipartisan bill, S. 215, “The Internet Freedom Preservation Act.”
S. 215 would reinstate Network Neutrality (“Net Neutrality”) protections in place before June 2005. The bill requires that any content, application, or service offered through the Internet be provided on a basis that is “reasonable and non-discriminatory.” It further prohibits network providers from blocking or degrading lawful Internet content. S. 215 also leaves the choice of equipment to access Internet gateways squarely in the hands of consumers, where it rightfully belongs.
In contrast, a bill offered in the 109th Congress, S. 2686, “The Communications, Consumer’s Choice, and Broadband Deployment Act of 2006” or Stevens bill, provided no protection for Internet users and entrepreneurs. Instead, it merely included a toothless requirement that the Federal Communications Commission (FCC) study the Internet market for five years and file annual reports to Congress on the activities of network providers. The Stevens bill would have given network providers carte blanche to engage in content and access discrimination. Nothing in the Stevens bill prevented network providers from blocking lawful content with which they disagree. Under the Stevens bill, network providers had substantial financial incentives to discriminate by blocking access to competing application and service providers and redirecting Internet traffic to their own preferred sites. The recent actions and statements of network providers establish their intention to do both.
The Internet is the Leading Twenty-First Century Marketplace of Ideas
The Internet is one of today’s most important mediums of disseminating information. “It enables people to communicate with one another with unprecedented speed and efficiency and is rapidly revolutionizing how people share and receive information.”[1] It also provides “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”[2] These qualities make the Internet a shining example of a modern day marketplace of ideas.[3]
The Internet’s marketplace enhances speech through its decentralized, neutral, nondiscriminatory “pipe” that automatically carries data from origin to destination without interference. Neutrality promotes open discourse. Consumers decide what sites to access, among millions of choices, and “pull” information from sites rather than having information chosen by others “pushed” out to them, as with television and other media. The Internet’s structure facilitates free speech, innovation, and competition on a global scale.
Accessibility to a mass audience at little or no cost makes the Internet a particularly unique forum for speech. “The Internet presents low entry barriers to anyone who wishes to provide or distribute information. Unlike television, cable, radio, newspapers, magazines or books, the Internet provides an opportunity for those with access to it to communicate with a worldwide audience at little cost.”[4] “Any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox.”[5]
Furthermore, the Internet differs from other forms of mass communication because it “is really more idea than entity. It is an agreement we have made to hook our computers together and communicate by way of binary impulses and digitized signals.”[6] No one “owns” the Internet. Instead, the Internet belongs to everyone who uses it.
The combination of these distinctive attributes allows the Internet to provide “a vast platform from which to address and hear from a worldwide audience of millions.”[7]
Never before has it been so easy to circulate speech among so many people. John Doe can now communicate with millions of people from the comfort, safety and privacy of his own home. His communication requires minimal investment and minimal time – once the word is written, it is disseminated to a mass audience literally with the touch of a button. Moreover, Internet speakers are not restricted by the ordinary trappings of polite conversation; they tend to speak more freely online.[8]
“It is ‘no exaggeration to conclude that the content on the Internet is as diverse as human thought.’”[9] “Such broad access to the public carries with it the potential to influence thought and opinion on a grand scale.”[10] The Internet truly has become the leading Twenty-First Century marketplace of ideas.
Free Speech on the Internet Must Be Protected
It is vital to the freedom of all Americans that free speech on the Internet be protected. Without question, the unique nature of the cyber revolution has posed some challenges in protecting the Internet.[11] “Each medium of expression … may present its own problems.”[12] Nevertheless, our “profound national commitment to the free exchange of ideas” requires that we meet those challenges to preserve Internet freedom.[13]
Courts acknowledge the importance of keeping the Web’s channels of communication open and free from discrimination. The United States Supreme Court has concluded that speech on the Internet is entitled to the highest level of protection under the First Amendment. Any attempts to censor its content or silence its speakers are viewed with extreme disfavor.[14]
In addition, courts recognize that the public has a First Amendment interest in receiving the speech and expression of others. “[T]he right of the public to receive suitable access to social, political, aesthetic, moral and other ideas and experiences” is one of the purposes served by the First Amendment.[15] Indeed, the “widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”[16] The Internet has become the principle source for the public to access this diversity of ideas.[17]
Courts also understand that “the Internet represents a brave new world of free speech.”[18] Specifically, the Internet provides unique opportunities for speech and discourse. Unlike other communication media, “the Internet has no ‘gatekeepers’ – no publishers or editors controlling the distribution of information.”[19] As a result, the Internet does not suffer from many of the limitations of alternative markets for the free exchange of ideas.[20] Therefore, courts have vigorously protected the publics’ right to uncensored Internet access on First Amendment grounds.[21]
In a similar vein, Congress has enacted legislation to protect and promote free speech on the Internet. In the 1996 Telecommunications Act, Congress found that “[t]he rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.”[22] Congress further declared that it is the policy of the United States “to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet.”[23] Congress therefore immunized Internet providers and users from any liability for publishing “any information provided by another information content provider.”[24]
Congressional creation and funding of federal agency web pages is further evidence of the need to facilitate the free flow of information on the Internet. In response to growing demand for online government resources, Congress enacted the E-Government Act of 2002 that created the Office of Electronic Government.[25] The Act’s purpose “is to improve the methods by which Government information, including information on the Internet, is organized, preserved, and made accessible to the public.”[26] Net Neutrality advances that goal.
It is in the public interest to promote the Internet’s use as a forum for all Americans to disseminate information and engage in free speech. Meaningful nondiscrimination rules will help ensure that happens.
Net Neutrality Promotes Free Speech on the Internet
Although network providers offer the public gateways to the Internet, they are not considered “state actors” that are barred by the First Amendment from infringing on free speech. Therefore, companies such as Time Warner/AOL can stop e-mail traffic[27] or block access to content[28] without facing liability under the First Amendment. Historically, the Net Neutrality protections under the Communications Act filled that free speech gap.[29]
Net Neutrality rests on three guiding principles that promote free speech on the Internet:
-
No discrimination against lawful content. Net Neutrality ensures that Internet users have the right to access lawful websites of their choice and to post lawful content, free of discrimination or degradation by network providers. In other words, network providers cannot block or slow down lawful content that they dislike. A vibrant marketplace of ideas on the Internet cannot function with corporate censors.
- Equal Internet access at an equal price. Under Net Neutrality, network providers cannot give preferential treatment to their own services at the expense of competing sites consumers want to use. In many markets, Internet access is only available through one or two providers. Equal access at an equal price means that network providers cannot abuse their monopoly by barring access, providing slower access, or charging higher premiums to services competing with their own. The free market, and not tollbooths run by a few corporate monopolies, must be allowed to decide Internet winners and losers.
- Consumers choose network equipment. Since 1968, Net Neutrality has allowed consumers to choose the equipment they want, or make it themselves, and attach it to any network.[30] In 1996, Congress reaffirmed this right by directing the FCC to adopt regulations permitting consumers to have the final choice of cable boxes used to convert television signals.[31] Net Neutrality prevents network providers from eliminating competing equipment by making it incompatible with their gateway. In the process, it advances congressional intent by promoting new technologies and ensuring that equipment choice remains in the hands of Internet users, where it rightfully belongs.[32]
The Internet has become the foremost Twenty-First Century marketplace of ideas under these bedrock Net Neutrality principles.
Net Neutrality Has Always Existed on the Internet Through Regulation of Network Providers, Not Internet Speech or Content
During recent hearings in the Senate and the House, several witnesses who represent large telecommunications and cable companies argued that Net Neutrality has never been applied to the Internet.[33] For example, Tom Tauke, Executive Vice President for Verizon, testified that network providers have operated Internet gateways without Net Neutrality regulations.[34] Similarly, Kyle McSlarrow, the President and CEO of the National Cable and Telecommunications Association, defined Net Neutrality as “a first-time regulation of the Internet that will freeze investment and innovation.”[35] Nothing could be further from the truth. Network providers have been regulated by neutrality rules since the Internet’s creation.
The Internet was born and flourished under well-established Net Neutrality protections. These protections are derived from Title II of the Communications Act of 1934, which grants the FCC the authority to regulate telephone companies as common carriers. As computer technology was developed, data began to flow over telephone lines. In the 1970’s and 1980’s, the FCC responded by ensuring that network providers would provide access for data transmissions on a non-discriminatory basis by protecting them like other communications services. Title II was strengthened by making common carrier telephone networks available to independent equipment manufacturers and Internet Service Providers (ISPs). Net Neutrality simply ensures that this same non-discriminatory common carrier model continues to apply to the Internet when accessed through broadband connections.
Nevertheless, network providers ignore this lengthy history by wrongly suggesting that Net Neutrality regulates the Internet itself.[36] In reality, the opposite is true. Net Neutrality ensures that lawful activity on the Internet remains free from regulation by both the Government and network providers. Neutrality rules merely prohibit telecommunications and cable companies from discriminating against Internet users and application and service providers in terms of Internet content, quality of access, and choice of equipment.
The Internet Has Flourished Under Net Neutrality
Network providers’ criticism that nondiscrimination rules will impede innovation and growth of the Internet is completely unfounded.[37] The Internet has blossomed under longstanding Net Neutrality protections. An April 2006 Pew study found that three-quarters of all adults in the United States, 147 million people, use the Internet.[38] Over half of all teens go online on a daily basis, and 84 percent report owning at least one personal media device.[39] Two-thirds of all American adults use the Internet daily.[40] Internet use for working, shopping, pursuing hobbies and interests, and obtaining information continues to skyrocket.[41]
The dynamic growth and vitality of the Internet is largely attributable to longstanding neutrality rules. Until recently, all network providers were barred from censoring lawful Internet speech and webpages. Only the continuation of existing Net Neutrality protections will achieve what its detractors profess to support: a forum for speech and innovation that “has derived its strength by virtue of its freedom from regulation,”[42] corporate or otherwise.
The FCC Eliminated Net Neutrality for Most Network Providers in 2005
The three cornerstone Net Neutrality principles ensure an Internet based upon user choice, and not network provider greed and censorship. In October 2004, the Chairman of the FCC acknowledged these principles by describing them as “Internet Consumer Freedoms,” or part of his “Four Freedoms” of web access and use.[43] Despite the FCC Chairman’s lip service to the Four Freedoms and consumer choice, in 2002 the FCC began attempting to reverse Internet nondiscrimination principles by reclassifying cable modem services as unregulated “information services.” Federal courts initially rejected the FCC’s efforts to strip these protections.[44]
All of that suddenly changed in June 2005 following the Supreme Court’s decision in NCTA v. Brand X.[45] In Brand X, the Supreme Court for the first time concluded that broadband access constituted “information services.”[46] Therefore, the Court found that the FCC had discretion to choose whether to retain Net Neutrality protections for all broadband users.[47] Shortly after the Brand X decision, the FCC further curtailed Net protections by reclassifying Digital Subscriber Line (DSL) services as “information services.”[48] Within a span of a few months, the FCC and the Supreme Court managed to destroy decades of Net Neutrality protections for millions of Americans who currently use broadband and the millions more who will in the next few years.[49]
The Absence of Net Neutrality Has Led to Internet Discrimination
Since neutrality rules were removed last year, nothing prevents network providers from discriminating against Internet users and application and service providers in terms of content and quality of access and the choice of equipment. Edward Whitacre, CEO of AT&T, candidly acknowledged his plans to impose tollbooths on the Information Superhighway:
How do you think they’re going to get to customers? Through a broadband pipe. Cable companies have them. We have them. Now what they would like to do is use my pipes free, but I ain’t going to let them do that.… Why should they be allowed to use my pipes? The Internet can’t be free in that sense, because we and the cable companies have made an investment and for… anybody to expect to use these pipes for free is nuts.[50]
Other network providers, such as BellSouth and Verizon, have stated their intent to create artificially tiered access that restricts fast lanes to only those willing and able to pay their higher premiums.[51] In other words, after network providers legitimately charge users for a broadband connection to the Internet, they want to turn around and impose additional surcharges on users to access and send data at the highest speeds – if consumers are even given the opportunity to access the fast lanes. Furthermore, network providers want to discriminate in favor of their own search engines, Internet phone services, and streaming video, while slowing down, blocking, or charging connection premiums to their competitors that they will not apply to themselves. Content, user, and quality of access discrimination will stifle innovation and freedom on the Internet.
Telecommunications and cable companies have been on their best behavior while Congress is considering legislation to reinstate longstanding Net Neutrality protections. Even with this heightened scrutiny, network providers have been engaging in content and user discrimination. In 2006, several network providers censored lawful content and blocked their Internet competitors:
- Time Warner’s AOL blocked all emails that mentioned www.dearaol.com, an advocacy campaign opposing AOL’s pay-to-send e-mail scheme.[52]
- BellSouth blocked its Florida and Tennessee customers’ access to Myspace.com, a social networking site for teens. [53]
- Cingular Wireless, run by AT&T, bars access to PayPal to make a payment on Ebay because it has struck a deal with another online payment service, which pays Cingular for that privileged status.[54]
Notwithstanding the growing discrimination by private companies, David Cohen, Executive Vice President of Comcast, argued that Net Neutrality would prevent those same companies from protecting the Internet.[55] However, network providers have clearly shown that they cannot be trusted to be gatekeepers for Internet content and access, any more than other censors can be.
Internet discrimination will only increase after the 2007 expiration of Net Neutrality restrictions in merger agreements for other network providers such as SBC/AT&T and Verizon/MCI.[56] The FCC recently declined to include any Net Neutrality requirements in the July 2006 acquisition of Adelphia by Comcast and Time-Warner.[57] The Net Neutrality requirements in the AT&T/BellSouth agreement recently approved by the FCC are only in place for two years and were only included after months of deadlock caused by Commissioner Robert McDowell’s recusal from the merger.[58] All Internet users will suffer the consequences unless Net Neutrality protections are quickly and permanently restored.
Strong Net Neutrality Protections Are Needed To Protect Free Speech and Consumer Choice on the Internet
Restoration of well-established Net Neutrality principles is necessary to protect freedom and innovation on the Internet. Only S. 215, or similar legislation that reinstates those nondiscrimination protections, will prevent the content and access discrimination by telecommunications and cable companies. For these reasons, the ACLU supports S. 215.
Sincerely,
Caroline Fredrickson
Director
Marvin J. Johnson
Legislative Counsel
James T. Tucker
Policy Counsel
cc: Chairman Daniel K. Inouye
Co-Chairman Ted Stevens
Senator John D. Rockefeller
Senator John F. Kerry
Senator Barbara Boxer
Senator Bill Nelson
Senator Maria Cantwell
Senator Frank Lautenberg
Senator Mark Pryor
Senator Thomas R. Carper
Senator Claire McCaskill
Senator Amy Klobuchar
Senator John McCain
Senator Trent Lott
Senator Kay Bailey Hutchison
Senator Gordon H. Smith
Senator John Ensign
Senator John E. Sununu
Senator Jim DeMint
Senator David Vitter
Senator John Thune
Endnotes
[1] Blumenthal v. Drudge, 992 F. Supp. 44, 48 (D.D.C. 1998).
[2] 47 U.S.C. § 230(a)(1)(3).
[3] The “marketplace of ideas” is grounded in the belief that speech must be protected as a fundamental right for the discovery of truth. See John Stuart Mill, On Liberty 76 (1859). Justice Oliver Wendall Holmes eloquently invoked the metaphor by observing, “when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the basic test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can be carried out.” Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., joined by Brandeis, J., dissenting). The marketplace of ideas metaphor aptly applies to an Internet free of corporate or government censors of lawful content. See generally Reno v. ACLU, 521 U.S. 844, 885 (1997) (rejecting government censorship of content in “the new marketplace of ideas,” the Internet).
[4] American Library Ass’n v. United States, 201 F. Supp.2d 401, 416 (E.D. Pa. 2002), rev’d on other grounds, 539 U.S. 194 (2003).
[5] Reno v. ACLU, 521 U.S. at 870.
[6] Blumenthal, 992 F. Supp. at 48 n.7 (quoting Bruce W. Sanford & Michael J. Lorenger, Teaching An Old Dog New Tricks; The First Amendment In An Online World, 28 Conn. L. Rev. 1137, 1139-43 (1996)).
[7] Reno v. ACLU, 521 U.S. at 853.
[8] Blumenthal, 992 F. Supp. at 48 n.7 (quoting Sanford & Lorenger, supra note 6).
[9] Reno v. ACLU, 521 U.S. at 852 (quoting ACLU v. Reno, 929 F. Supp. 824, 842 (E.D. Pa. 1996)).
[10] Oja v. United States Army Corps of Eng’rs, 440 F.3d 1122, 1129 (9th Cir. 2006).
[11] See Universal City Studios, Inc. v. Corley, 273 F.3d 429, 433 (2d Cir. 2001).
[12] Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975).
[13] Harte-Hanks Comm., Inc. v. Connaughton, 491 U.S. 657, 686 (1989).
[14] See, e.g., Ashcroft v. ACLU, 542 U.S. 656 (2004) (upholding a preliminary injunction of the Child Online Protection Act); Reno v. ACLU, 521 U.S. at 844 (striking down certain provisions of the Communications Decency Act).
[15] Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).
[16] Metro Broad. Inc. v. FCC, 497 U.S. 547, 566-67 (1990) (quoting Associated Press v. United States, 326 U.S. 1, 20 (1945)).
[17] Over one billion people have used the Internet, including nearly 70 percent of all people in North America. See http://www.internetworldstats.com/stats.htm (visited on Oct. 4, 2006).
[18] Blumenthal, 992 F. Supp. at 48 n.7 (quoting Sanford & Lorenger, supra note 6).
[19] Id. (emphasis added).
[20] For example, under Net Neutrality, the Internet does not suffer from a criticism that Professor Laurence Tribe and other First Amendment scholars frequently have leveled at traditional marketplaces: “Especially when the wealthy have more access to the most potent media of communication than the poor, how sure can we be that ‘free trade in ideas’ is likely to generate truth?” Laurence H. Tribe, American Constitutional Law 786 (2d ed. 1988).
[21] See supra note 14 and accompanying text.
[22] 47 U.S.C. § 230(a)(1).
[23] 47 U.S.C. § 230(b)(3) (emphasis added).
[24] 47 U.S.C. § 230(c)(1).
[25] See Pub. L. No. 107-347, 116 Stat. 2899 (2002).
[26] 44 U.S.C. § 3606(a).
[27] See, e.g., Green v. America Online, Inc., 318 F.3d 465 (3d Cir.), cert. denied, 540 U.S. 877 (2003); Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436 (E.D. Pa. 1996).
[28] See, e.g., Noah v. AOL Time Warner, Inc., 261 F. Supp.2d 532 (E.D. Va. 2003), aff’d, 2004 WL 602711 (4th Cir. Mar. 24, 2004).
[29] See generally Kuczo v. Western Conn. Broad. Co., 566 F.2d 384, 388 (2d Cir. 1977) (holding that a radio station’s censorship of radio ads was not subject to First Amendment protections, in part because the Communications Act specifically prohibited the conduct and the FCC had “prescribed appropriate rules for the enforcement of the statute”).
[30] See Use of the Carterfone Device in Message Toll Telephone Service, 13 F.C.C.2d 420 (1968), reh’g denied, 14 F.C.C.2d 571 (1968).
[31] See 47 U.S.C. § 549 (1996).
[32] Congress has stated its intent “to help ensure continued leadership of the United States in high-performance computing and its applications by … promoting the rapid adoption of open network standards.” 15 U.S.C. § 5502(4). Open network standards increase compatibility of equipment to access the Internet, ensuring that the best equipment at the best price is available to consumers regardless of their network provider.
[33] See Communications Revision and Broadband Deployment Act: Hearing Before the Senate Comm. on Commerce, Science and Transportation, 109th Cong. (June 13, 2006) (statement of Kyle McSlarrow, President & CEO, National Cable & Telecommunications Association); Communications Revision and Broadband Deployment Act: Hearing Before the Senate Comm. on Commerce, Science and Transportation, 109th Cong. (May 25, 2006) (statement of Tom Tauke, Executive Vice President, Verizon); Network Neutrality: Competition, Innovation, and Nondiscriminatory Access: Hearing Before the Task Force on Telecom and Antitrust of the House Comm. on the Judiciary, 109th Cong. 101-105 (2006) (statement of Kyle McSlarrow, President & CEO, National Cable & Telecommunications Association); Communications Promotion and Enhancement: Hearing Before the Subcommittee on Telecommunications and the Internet of the House Comm. on Energy and Commerce, 109th Cong. (Mar. 30, 2006) (statements of Kyle McSlarrow, President & CEO, National Cable & Telecommunications Association, and Walter McCormick, President and Chief Executive Officer, United States Telecom Association); Internet Protocol and Broadband Services Legislation: Hearing Before the Subcommittee on Telecommunications and the Internet of the House Comm. on Energy and Commerce, 109th Cong. 75-83 (2005) (statement of Michael Willner, President and Chief Executive Officer, Insight Communications).
[34] See Tauke, supra note 33.
[35] See McSlarrow, supra note 33, 109th Cong. at 101-105.
[36] See McSlarrow, supra note 33 (see Mr. McSlarrow’s statements at all three hearings listed in note 33); Communications Laws: Hearing Before the Senate Comm. on the Judiciary, 109th Cong. (June 14, 2006) (statement of David Cohen, Executive Vice President, Comcast Corporation); Communications Revision and Broadband Deployment Act: Hearing Before the Senate Comm. on Commerce, Science and Transportation, 109th Cong. (June 13, 2006) (statements of Dr. John Rutledge, President, Rutledge Capital, Consultant to the United States Chamber of Commerce and Steve Largent, President and Chief Executive Officer, CTIA); Communications Revision and Broadband Deployment Act: Hearing Before the Senate Comm. on Commerce, Science and Transportation, 109th Cong. (May 25, 2006) (statement of Roger Cochetti, Group Director, U.S. Public Policy, CompTIA); Communications Issues: Hearing Before the Senate Comm. on Commerce, Science and Transportation, 109th Cong. (Feb. 7, 2006) (statement of Walter McCormick, President and Chief Executive Officer, United States Telecom Association); Communications Promotion and Enhancement: Hearing Before the Subcommittee on Telecommunications and the Internet of the House Comm. on Energy and Commerce, 109th Cong. (Mar. 30, 2006) (statement of James Makawa, Co-Founder, CEO, The Africa Channel); Network Neutrality: Competition, Innovation, and Nondiscriminatory Access: Hearing Before the Task Force on Telecom and Antitrust of the House Comm. on the Judiciary, 109th Cong. 47-53 (2006) (statement of Walter McCormick, President and Chief Executive Officer, United States Telecom Association).
[37] See supra note 33.
[38] Pew Internet & American Life Project, Data Memo; Internet Penetration and Impact, at 3 (April 2006).
[39] Pew Internet & American Life Project, Teens and Technology: Youth are leading the transition to a fully wired and mobile nation ii, 4, 9 (July 27, 2005). A “personal media device” is defined as a desktop or laptop computer, a cell phone or a Personal Digital Assistant (PDA). Id. at ii, 9.
[40] Pew Internet & American Life Project, Internet: The Mainstreaming of Online Life Trends 2005, at 58 (2005); Pew Internet & American Life Project, Latest Trends: Online Activities – Daily, available at http://www.pewinternet.org (visited on August 7, 2006).
[41] Id. at 1-3.
[42] See Largent, supra note 36.
[43] The fourth freedom would require that consumers be provided with sufficient information about service plans to make informed choices.
[44] See In re Inquiry Concerning High-Speed Access to Internet Over Cable and Other Facilities, 17 F.C.C.R. 4798 (F.C.C. Mar 15, 2002), aff’d in part and vacated in part sub nom., Brand X Internet Servs. v. F.C.C., 345 F.3d 1120 (9th Cir. 2003).
[45] 125 S. Ct. 2688 (2005).
[46] See id. at 2702-10.
[47] See id. at 2708-11.
[48] See In re Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, Report and Order and Notice of Proposed Rulemaking, CC Docket No. 02-33, FCC 05-150, available at 2005 WL 2347773 (released Sept. 23, 2005).
[49] See Pew Internet & American Life Project, Home Broadband Adoption 2006 (May 2006). According to the Pew study, 84 million Americans had high-speed broadband access at home in March 2006. See id. at i. This number represents a forty percent increase in just one year and twice the rate of growth over the year before. Id.
[50] Interview of Edward Whitacre of SBC Communications, Inc., The Biggest Threat to the Internet, Eweek, Nov. 3, 2005, available at 2005 WLNR 19970675.
[51] See, e.g., Roberta Combs & Joan Blades, Joined at the Internet Blip, Wash. Times, June 16, 2006, at A16; Mike Mills, Surfing the ‘Othernet’, CQ Weekly, June 2, 2006, available at 2006 WLNR 9919970; Grant Gross, Internet Neutrality Law Needed, Vincent Cerf Says, InfoWorld Daily, Feb. 7, 2006, available at 2006 WLNR 2150295; Catherine Yang et al., At Stake: The Net as We Know It, BusinessWeek, Dec. 26, 2005, at 38.
[52] See Hiawatha Bray, AOL Blocks E-Mail Tied to Critic of Firm, Boston Globe, Apr. 15, 2006, at B5; Chris Gaither & Joseph Menn, AOL Blocks Critics’ E-Mails, LA Times, Apr. 14, 2006, at 1.
[53] Mark Hachman, BellSouth says it’s not Blocking MySpace, Florida and Tennessee Customers Disagree, PC Magazine, June 2, 2006.
[54] See Debi Jones, Cingular Slams the Door on PayPal Competition, available at http://www.mobilejones.com/archives/2124/ (July 7, 2006).
[55] See Cohen, supra note 36.
[56] FCC Approves SBC/AT&T and Verizon/MCI Mergers, Oct. 31, 2005, SBC/AT&T Docket No. 05-65, Verizon/MCI Docket No. 05-75, at 2-3.
[57] See Communications Law Bulletin – July 2006, Mondaq Bus. Briefing, Aug. 10, 2006, available at 2006 WLNR 13834962.
[58] See Alan Sipress & Sara Kehaulani Goo, AT&T Completes BellSouth Takeover, Wash. Post, Dec. 30, 2006, at A1.