The First Amendment Case Against FCC IP Telephony Regulation

I. INTRODUCTION At the present rate of digital innovation, the communications industry promises to be a fruitful one for technocratically adept communications lawyers, not only because digital innovation is so rapid, but because Federal Communications Commission (FCC or Commission) rule making continues to outpace new communications technologies. Notable in this category is a nascent communications technology, Internet Protocol (IP) telephony. In response to concerns about this technology's effect on universal access, the FCC has already crafted two new regulatory regimes.(1) Yet, in the race to regulate, the FCC may have overlooked the First Amendment. Although new digital "technologies of freedom"(2) allow unprecedented freedom of expression (and at democratic rates), Congress, the courts, and the FCC appear unwilling to acknowledge a First Amendment limit to digital speech regulation. This Comment argues that IP telephony, like handbills and traditional print media, deserves First Amendment protection against FCC regulatory authority. In Part II, this Comment briefly reviews the IP telephony phenomenon within the larger context of "digital convergence," or the interchangeability of new media, noting both the technological innovations and regulatory advantages IP telephony offers. Part III examines the FCC and Supreme Court's technologically driven First Amendment jurisprudence. In particular, this Comment notes the First Amendment's conspicuous absence from the IP telephony dialogue, and, correspondingly, the prominence of assurances of regulatory forbearance in Congress, the courts, and the FCC. In response to this apparent constitutional lacuna, Part IV offers First Amendment content-based and content-neutral arguments against the proposed telephony regulations. This Comment argues that, at the very least, the affordability and innovation IP telephony offers should constitute nontrivial factors in a court's content-neutral balancing. Finally, Part V proposes divorcing universal access funding from long-distance service. Such a policy alternative would avoid burdening the First Amendment values IP telephony serves as well as sidestep the category difficulties digital convergence creates. II. DIGITAL CONVERGENCE AND THE IP TELEPHONY REVOLUTION A. From Data over Voice Lines to Voice over Data Lines Professor Ithiel de Sola Pool termed the "blurting [of] the lines between media" where a "single physical means ... may carry services that in the past were provided in separate ways" as the "convergence of the modes."(3) Whereas in the past one means existed to communicate in a particular way, such as telephones for one-to-one voice communication, now multiple technologies exist to carry on personal instantaneous voice communications.(4) Once speakers sent data transmissions over telephone lines built for voice; now the end-user can send voice, along with video, text, or any other message, over lines built for data.(5) Digitalization, or the use of ones and zeroes to represent real world data, has eroded the traditional mapping of one function to one technology by making information transmission interchangeable.(6) Such is the case with IP telephony. B. IP Telephony Industry Growth Internet protocol telephony, as its name suggests, originated with software that allowed phone voice transmissions across the public Internet. This early phone client software required that each speaker be connected to the Internet from adequately equipped personal computers in order to make and receive calls. Even if the concerted effort to communicate succeeded, voice quality was typically poor. More advanced offerings improved voice quality and added additional modes of communication, including real-time text or chat.(7) Internet protocol telephony users could not only speak together, but also review the same manuscript together, even at a distance. Still, expensive computer hardware limited widespread Internet phone use. …