ACLU Applauds Court Victory On Preserving Competition Online

October 7, 2003 12:00 am

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Statement of Barry Steinhardt
Director, ACLU Technology and Liberty Program


NEW YORK – The American Civil Liberties Union applauds the ruling by the Federal Court of Appeals for the Ninth Circuit that cable broadband Internet services have been improperly classified by the Federal Communications Commission (FCC) in a way that frees them from rules that ensure competition and help keep the Internet free.

Core American liberties such as freedom of speech are of no value if the forums where such rights are commonly exercised are not themselves free. And the Internet is without doubt the most vital and active forum for free speech we have today – a place where people can publish their views to be seen by a few close friends, or spread around the world; where users can engage with others on thousands of bulletin boards and chat rooms on nearly any topic, create new communities of interest, or communicate anonymously about difficult topics. It is the closest thing ever invented to a true “”free market”” of ideas.

The government has a responsibility to preserve and protect this precious communications medium – to create and enforce rules to ensure that it can never fall under the influence of private parties who have powerful economic incentives to disrupt and distort the free flow of ideas online. Cable broadband providers are examples of such parties; they have both the technological means and the economic incentives to interfere with the free Internet. Yet the FCC has stubbornly refused to protect the public interest by applying the same “”common carrier”” regulations to cable broadband Internet that have always applied to the dial-up Internet – and without which the Internet as we know it today could never have developed.

The Ninth Circuit’s finding today in Brand X Internet Services v. FCC that cable modem service is both an “”information service”” and a “”telecommunications service”” (rather than purely a regulation-free information service) is an important victory in the larger war to keep the Internet open as a neutral forum for free communications. There are still many ways for the FCC to resist its duty to set proper ground rules for freedom and competition in cable broadband, but we hope that this ruling, combined with other recent feedback from Congress about the agency’s current governing philosophy, will convince Chairman Powell and other regulators to reexamine the course they have charted.

The ACLU’s amicus brief in the case as well as an ACLU White Paper explaining the issues at stake are online at /node/24172, and can also be accessed from (under “”How Monopoly Control of the Internet Threatens Free Speech””).

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