The Skunk in the Fiber

Published November 1, 2006

In an October 5 piece in Communications Daily titled “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 sees two potential solutions: “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 network neutrality. But, speaking of giving offense, net neutrality seems to me to be the proverbial skunk in the fiber. 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 Ambeault suggests.

The Senate bill and similar proposals provide that each Internet service provider (ISP) 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 access rights by requiring content providers through contract to assume editorial responsibility.

Net neutrality mandates are inconsistent with the First Amendment rights of broadband ISPs. In other words, there is more at stake than just maintaining the freedom of ISPs to differentiate and price their services in ways that respond to marketplace needs. Also at stake is the freedom of speech of ISPs to decide how to “program” their networks, especially as new forms of Internet video delivery take shape.

That Google was willing to pay $1.65 billion for YouTube, a service many everyday users have not heard of, let alone tried, demonstrates that applications that allow users to post and share original video on the Internet have begun a rapid transition to the mass market.

Ambeault’s concerns about dealing with “offensiveness” while trying to develop a mass market service are instructive. According to Comm Daily, 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, net neutrality might well prevent such takedowns by Verizon and other ISPs. At that point, like the newspapers, magazines, broadcasters, and cablecasters before them, broadband ISPs may be left with no choice but to fight for their free speech rights.

Randolph J. May ([email protected]) is president of The Free State Foundation, a free-market think tank based in Maryland.