The Skunk in the Fiber

In an October 5 piece in Communications Daily [subscription required], entitled "FiOS Big on User Content, Wary of Offending Subscribers," Verizon's Joseph Ambeault, director of interactive services, worries that user-created content that offends some subscribers might prevent Verizon's FiOS service from becoming a mass-market product. He see two potential solutions to address this concern about offensive content: "Make new content providers take editorial responsibility by contract, as programming providers do, or reserve earlier hours of the day for 'family entertainment' and loosening up later at night."

The article never mentions net neutrality. But, speaking of giving offense, NN seems to me to be the proverbial skunk in the fiber. I fail to see its irrelevance to dealing with the concerns expressed by Mr. Ambeault. Indeed, net neutrality mandates, such as those contained in the current version of the Senate bill, could make it difficult (that is, legally dicey) to implement solutions such as the perfectly logical ones suggested by Mr. Ambeault. Remember that the Senate bill (and similar proposals) provides that each Internet service provider must allow each subscriber to "access and post any lawful content of that subscriber's choosing" and "access any web page of that subscriber's choosing." It doesn't say anything, at least very clearly, about allowing "family entertainment" hours before loosening up later at night or allowing ISPs to negate the access rights by requiring content providers through contract to assume editorial responsibility.

Much of the discussion about net neutrality has focused on whether NN prohibitions are needed to ban the potential "discrimination" of two-tiered (what about three or four-tiered?) pricing. For reasons I've explained many times elsewhere, in today's competitive marketplace, they are not.

But apart from sound economic principles, I've also been arguing in recent months in different venues that net neutrality mandates are inconsistent with the First Amendment rights of the broadband ISPs. In other words, there is more at stake than just maintaining the freedom of the ISPs to differentiate and price their services in ways that respond to marketplace needs. Also at stake is the freedom of speech of the ISPs to decide how to "program" their networks. See here (National Law Journal), here (Perspective of FSF Scholars), and here (Broadcasting & Cable) for my recent pieces explaining why net neutrality mandates infringe on First Amendment rights.

The concerns of Verizon's Mr. Ambeault about dealing with "offensiveness" while trying to develop a mass market service are instructive. They show that NN is about more than the freedom to price to market. According to Comm Daily, Mr. Ambeault says Verizon has to get ahead of the problems and can't rely on taking down content as complaints arise. Assuming the offensive content is lawful, and most of what may offend is, with access and posting rights enshrined in federal law, NN might well prevent such takedowns by Verizon and other ISPs. At that point, like the newspapers, magazines, broadcasters, cablecasters before them, broadband ISPs may be left with no choice but to fight for their free speech rights.