Harvard Journal of Law & Technology Volume 16, Number 1 Fall 2002 CABLE MODEM SERVICE AND THE FIRST AMENDMENT: ADVENTURES IN A “DOCTRINAL WASTELAND” * William E. Lee TABLE OF CONTENTS I. INTRODUCTION..............................................................................125 II. THE EMERGING BROADBAND MARKET .......................................129 III. FCC POLICY ...............................................................................134 A. The AT&T Mergers ..................................................................134 B. The AOL-Time Warner Merger................................................136 C. The Declaratory Ruling ...........................................................139 IV. THE FIRST AMENDMENT.............................................................140 A. AT&T Corp. v. City of Portland...............................................140 B. Comcast v. Broward County ....................................................147 1. Strict Scrutiny........................................................................149 2. Intermediate Scrutiny ............................................................154 V. CONCLUSION................................................................................157 I. INTRODUCTION Broadband communication facilities — whether provided by ca- ble companies, telephone companies, wireless providers, or satellite operators — are commonly seen as a veritable panacea for all that ails America. A group of technology company CEOs recently advocated a massive government program, similar in scope to putting a man on the moon, to increase broadband deployment.1 The group claimed wide- scale broadband deployment would have a $500 billion impact on the economy (and coincidentally increase sales of their products).2 Broadband also has President George W. Bush’s attention; he recently * Professor, Department of Telecommunications, Grady College of Journalism and Mass Communication, University of Georgia. An earlier version of this Article was presented at the Academic Seminar, National Cable Telecommunications Association Convention, New Orleans, Louisiana, May 4, 2002. Research for this Article was supported by the Magness Institute. 1. TechNet, A National Imperative: Universal Availability of Broadband by 2010 (Jan. 15, 2002), at http://www.technet.org/news/newsreleases/2002-01-15.64.pdf (last visited Nov. 19, 2002). See generally Yochi J. Dreazen & Jim VandeHei, Plugging In: Tech Lobby- ists Seek Bonanza in New Push for Speedy Internet, WALL ST. J., Jan. 18, 2002, at A1. 2. See TechNet, supra note 1. 126 Harvard Journal of Law & Technology [Vol. 16 appointed a panel to advise him on ways in which broadband deploy- ment may be increased.3 Notwithstanding its cachet as an opportunity for government sub- sidies, broadband has also triggered another response: communica- tions firms have sought to use government regulation to impair their competitors. Telephone companies, legally required to lease their broadband facilities to unaffiliated Internet Service Providers (“ISPs”), have advocated that cable networks also be opened to unaf- filiated ISPs.4 There is more to these initiatives than a desire for regu- latory parity; the more bandwidth a cable operator is required to devote to multiple ISP use, the less bandwidth is available for local telephony. The debate over multiple-ISP access to cable modem platforms has involved a very truncated discussion of cable providers’ First Amendment rights. Proponents of mandated access characterize cable operators as “gatekeepers” poised to restrict the public’s access to the wealth of information on the Internet,5 despite the lack of any evi- dence that cable operators have done so.6 Paradoxically, the support- ers of mandated access claim that cable modem service does not 3. Jim VandeHei, Bush Set to Name Advisory Panel to Shape Technology Issues, WALL ST. J., Dec. 12, 2001, at B7. Currently, the Bush Administration is deeply divided over broadband policy. Yochi J. Dreazen, Tech Firms Bemoan Bush Talk, WALL ST. J., June 21, 2002, at A4. 4. See, e.g., MediaOne Group, Inc. v. County of Henrico, 257 F.3d 356, 364 (4th Cir. 2001) (noting that Verizon has an interest in having cable modem service categorized as a “telecommunications service” because this would trigger regulations not applicable to “ca- ble” service); Comcast Cablevision of Broward County, Inc. v. Broward County, 124 F. Supp. 2d 685, 696 (S.D. Fla. 2000) (finding that “open access” ordinance was adopted at the behest of a telephone company seeking to eliminate or hamper a competitor); Comments of Charter Communications, Inc. at 17, FCC GN Docket No. 00-185 (Dec. 1, 2000) (noting that local telephone companies have incentives to encourage technical solutions to the prob- lem of multiple-ISP access consuming bandwidth intended for cable telephony). Alternatively, local exchange carriers have backed legislation that would free them from the obligation to lease parts of their high-speed networks to competitors. See Internet Free- dom and Broadband Deployment Act of 2001, H.R. 1542, 107th Cong., (1st Sess. 2001); Yochi J. Dreazen, Verizon Plays Every Angle in Broadband Battle, WALL ST. J., Aug. 15, 2001, at A16; Yochi J. Dreazen, Battle Over Bells and Broadband Service Heats Up, WALL ST. J., May 15, 2001, at A28. The battle over this legislation has generated huge campaign donations. See Yochi J. Dreazen, House Backs Bill to Aid Bells’ Broadband Sales, WALL ST. J., Feb. 28, 2002, at B8; Stephan Lebaton, Congressional Broadband Fight Intensifies, N.Y. TIMES, Feb. 27, 2002, at C4; Juliet Eilpern, A Contest of Connections: Millions Spent to Influence Bill on High-Speed Internet Access, WASH. POST, Feb. 27, 2002, at A8. 5. See, e.g., CENTER FOR DEMOCRACY & TECHNOLOGY, BROADBAND BACKGROUNDER: PUBLIC POLICY ISSUES RAISED BY BROADBAND TECHNOLOGY at 35 (2000) (arguing that if broadband becomes the proprietary domain of large companies, the rough equality among Internet speakers could be destroyed); Comments of Center for Democracy & Technology at 18, FCC GN Docket No. 00-185, (Dec. 10, 2000) (“free speech is too important to leave solely in the hands of private industry”). 6. See Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Fa- cilities, FCC GN Docket No. 00-185, FCC 02-77, at ¶ 87 (Mar. 15, 2002) (Declaratory Ruling and Notice of Proposed Rulemaking) [hereinafter High-Speed Declaratory Ruling]. No. 1] Cable Modem Service and the First Amendment 127 involve speech by a cable operator, but also claim that mandated ac- cess is necessary to protect the speech of unaffiliated ISPs.7 The Fed- eral Communications Commission (“FCC”) has also largely ignored the impact of mandated access on cable operators’ First Amendment rights. In 2000, when the agency began a proceeding to determine the appropriate framework for regulating cable modem service, it did not even discuss the First Amendment’s application to this service.8 Nor did the FCC mention AOL Time Warner’s First Amendment rights in 2001 when the agency imposed conditions preventing the merged firm from discriminating against other ISPs.9 The FCC only began to pose questions about the First Amendment and cable modem service in 2002,10 when it sought comments on the regulatory implications of classifying cable modem service as an “information service.”11 The lack of concern for the First Amendment rights of cable op- erators is not surprising given the Supreme Court’s uncertain pro- nouncements about cable’s constitutional status. Since 1986, the Supreme Court has addressed cable’s First Amendment protection on six occasions,12 indicating that regulations aimed at cable content may or may not be subject to strict scrutiny,13 and that cable is regulated like broadcasting in some instances and not in others.14 This dis- 7. See, e.g., Reply Comments of Earthlink, Inc. at 57, FCC GN Docket No. 00-185 (Jan. 10, 2001) (arguing that the protected “speakers” in the cable modem context are the ser- vice’s users, not the service’s providers). But see Raymond Shih Ray Ku, Open Internet Access and Freedom of Speech: A First Amendment Catch-22, 75 TUL. L. REV. 87, 93 (2000) (arguing that a First Amendment approach which does not treat cable ISPs as “speakers” must not treat competing ISPs as “speakers”). Some scholars dismiss the First Amendment’s relevance to mandated access, focusing instead on the antitrust and regulatory issues. See, e.g., Mark A. Lemley & Lawrence Lessig, The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era, 48 UCLA L. REV. 925 (2001). 8. Inquiry Concerning High-Speed Access to Internet Over Cable and Other Facilities, FCC GN Docket No. 00-185, 15 F.C.C.R. 19,287 (2000) (Notice of Inquiry). Nonetheless, commentators discussed the First Amendment and cable modem services, but less exten- sively than they discussed the statutory classification issues. See, e.g., Comments of the National Cable & Telecommunications Association at 38–39, FCC GN Docket No. 00-185 (Dec. 1, 2000). 9. Applications for Consent to the Transfer of Control of Licenses and Section 214 Au- thorizations by Time Warner Inc. and America Online, Inc., Transferors, to AOL Time Warner Inc., Transferee, FCC CS Docket No. 00-30, 16 F.C.C.R. 6547 (2001) (Memoran- dum Opinion and Order) [hereinafter AOL-Time Warner Merger Order]. 10. High-Speed Declaratory Ruling, supra note 6, ¶ 80. 11. 47 U.S.C. § 153(20) (2002); see infra notes 75–83 and accompanying text. 12. United States v. Playboy Entm’t Group,