WHOSE LINE IS IT ANYWAY? THE FIRST AMENDMENT AND CABLE OPEN ACCESS Harold Feld* Cable companies (generally known as "multi- franchise to AT&T. AT&T brought suit in federal systems operators" or "MSOs") have begun a district court, lost before the district court and lengthy process of upgrading their facilities to promptly filed an appeal with the Ninth Circuit support high-speed Internet service, called Court of Appeals. "broadband." The cable MSOs have opposed fed- The AT&T case is the most advanced case ad- eral and local efforts to open their cable networks dressing the issue of open access and the question to non-affiliated internet service providers as to whether requiring a cable MSO offering ("ISPs") who wish to provide broadband access in- broadband services to provide a choice of ISPs on dependent of the cable MSO that owns the net- a nondiscriminatory basis offends a cable MSO's work. Leading the cable resistance has been First Amendment right to offer a unique "reper- AT&T Corporation. In 1998, AT&T acquired the toire" of programming.2 In other words, is the largest existing cable MSO, Tele-Communica- First Amendment a shield against any effort to tions, Inc. ("TCI"). From the minute AT&T filed open the cable network? As discussed below, with the Federal Communications Commission rather than a shield against an open access re- ("FCC") for permission to consummate the quirement, the First Amendment serves as a sword merger, it has faced demands from competitors, of compelling state interest, justifying an open ac- consumer groups, and local franchising authori- cess requirement. ties to provide "open access" to its cable network In its case against the City of Portland, AT&T on nondiscriminatory terms. has argued that its position as an internet access In response, AT&T (and its supporters in the provider subjects any attempt to regulate its in- cable industry) have consistently responded that ternet access to the "strict scrutiny" standard, tra- cable MSOs have the right to offer internet serv- ditionally reserved for newspapers but recently ap- ices through an exclusive provider. AT&T offers plied by the Supreme Court to invalidate content broadband access through an exclusive contract restrictions on the internet." Alternatively, AT&T with Excite@Home, Inc. ("@Home").1 Although argues that the Turner decisions4 require that all the FCC declined to impose an open access provi- regulation of cable services must survive interme- sion on AT&T as a condition of its acquisition of diate scrutiny under the First Amendment. Fur- TCI, the City of Portland imposed open access as thermore, AT&T claims that an open access re- a condition on the transfer of TCI's Portland quirement would burden its rights as a speaker by * Associate Director, Media Access Project ("MAP"), AT&7, Excite@Home, Fit Together, SAN JOSE MERCURY NEWS, Washington, D.C. MAP is a non-profit public interest law Aug. 11, 1999, at A]. firm devoted to protecting the public's First Amendment 2 Another case is pending in Broward County, Florida at right to speak and hear information from diverse sources. the district court level, involving a number of cable MSOs. See MAP has participated on behalf of several consumer Open Access Lawsuit Closed, WIRED NEWS, Feb. 15, 2000 advocacy groups in broadband debate before the FCC and as (re- an amicus in the Portland case. For more information about port that district court dismissed all but the First Amendment MAP, please see the organization's website, counts of the complaint). . The opinions expressed in this - See, e.g., Reno v. ACLU, 521 U.S. 844 (1997). article are the personal opinions of Mr. Feld and do not 4 Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 necessarily represent the opinions of MAP. (1994) [hereinafter Turner /]; Turner Broadcasting System, 1 Although @Home is a joint venture among several Inc. v. FCC, 520 U.S. 180 (1997) [hereinafter Turner 1/]. cable MSOs, AT&T holds a controlling interest. See How Do COMMLAW CONSPECTUS [Vol. 8 forcing it to carry the speech of others and thus, it use of the public right of way, there seems no regardless of its status as an internet access/cable reason to demand a similar easement, and no rea- provider, such a requirement would trigger strict son why it should be unconstitutional, in cyber- scrutiny under the First Amendment. space. A virtual easement to promote competition As demonstrated below, an MSO's status as an and the public's access to choices of information internet access or cable provider does not award it provider seems a reasonable condition for the lo- any special First Amendment protection in this cality to impose in exchange for the right to lay context. AT&T's offering of internet access, cable line through the public streets and run whether classified as a "cable service" or a "tele- cable service to the home. communications service" under the Communica- More fundamentally, rather than violating the tions Act,5 should be treated as a common carrier First Amendment, an open access requirement ef- service from a First Amendment point of view. fectuates the purpose of the First Amendment: to None of the concerns exist here that caused the provide American citizens with access to-and the Supreme Court in Turner to treat cable services as ability to participate in-the broadest market- members of the "press" engaged in First Amend- place of ideas possible.8 Absent government inter- ment activity.6 vention, this First Amendment purpose does not Because an MSO such as AT&T provides sub- necessarily imply a general right of access to cable scribers full access to the "public" internet networks under the First Amendment.9 The First through its service, it cannot claim that an open Amendment does, however, authorize both the access requirement amounts to "forced speech." federal government and local franchising authori- The nature of the internet does not support this ties to impose open access conditions, even under assertion. For example, the requirement that a some degree of scrutiny. subscriber affirmatively select an alternate ISP guarantees that the subscriber cannot reasonably I. INTRODUCTION impute any offensive speech to the MSO. Conceptually, an open access requirement A. Broadband in the Existing Internet and the amounts to a "virtual easement" over the cable "Next Generation Internet" plant. It does not interfere with an MSO's general enjoyment of its cable property or its ability to of- "Broadband"-high speed internet access capa- fer its full range of speech and services. Indeed, in ble of delivering video streaming, local telephone this regard, it is similar to state-imposed ease- service and a host of other wonders-promises to ments over shopping centers and other areas in revolutionize the internet.10 The FCC has defined which the property owner has invited the public. "broadband" as internet access at speeds of at The Supreme Court has found such state-imposed least 200 kilobits/second (kbps). II By contrast, easements that promote the First Amendment conventional dialup or "narrowband" service- rights of others to speak and hear information usually involving a local phone call to an internet from diverse sources Constitutional in physical service provider-is limited to speeds of approxi- space.7 Given that the cable franchise carries with mately 28.8 or 56 kbps.12 Speed of connection to 5 Communications Act of 1934, ch. 652, 48 Stat. 1064 or state statutes governing antitrust and prohibiting anticom- (codified as amended at 47 U.S.C. §§ 151-714) petitive behavior might require cable MSOs to provide open 6 This proposition is dependent on the condition that access to their networks to competing ISPs. open access requirement would not reduce the number of It See Kevin Werbach, The Architecture of Internet 2.0, RE- channels available to an MSO to offer its own choice of cable LEASE 1.0, Feb. 1999, at 1 [hereinafter WERBACH]. and internet services. See infra Part III.A. II See In re Inquiry Concerning Deployment of Advanced 7 See Prune Yard Shopping Center v. Robbins, 447 U.S. Telecomm. Capability to All Americans in a Reasonable and 74 (1980). Timely Fashion, Report, 14 FCC Rcd. 2398, 2406, para. 20 8 See, e.g., Cass S. Sunstein, A New Deal For Speech, 17 HAS- (1999) [hereinafter Advanced Services Report]. TINGS COMM. & ENT. L.J. 138 (1994). 12 See generally FCC, OPP WORKING PAPER 29, DIGITAL 9 Such an argument is not inconceivable. See Preferred TORNADO: THE INTERNET AND TELECOMMUNICATIONS POLICY Communications, Inc. v. City of Los Angeles, 13 F.3d 1327 (authored by Kevin Werbach) (1997) [hereinafter DIGITAL (9th Cir. 1994) (finding that the city's grant of an exclusive TORNADO]; Barbara Esbin, Internet Over Cable: Defining the Fu- cable franchise violated a potential franchisee's First Amend- ture In Terms of the Past, 7 COMMLAw CONSPEcTUS 37 (1999); ment right unless the city could show that physical limitations FCC, OPP WORKING PAPER 31, THE FCC AND THE UNREGULA- made an exclusive franchise necessary). In addition, federal TION OF THE INTERNET (authored by Jason Oxman) (1999) 2000] First Amendment and Cable Open Access the end-user, or "bandwidth" at the "last mile," is result, the content of the internet has become "as a critical bottleneck in the delivery of internet diverse as human thought."' 21 Individuals enjoy a services. Imagine the internet as coming through wide range of services and the ability to interact a funnel, with the narrow point at the end-user. freely with each other and with purveyors of The size of the hole determines the speed at goods and services online. It is no exaggeration to which water comes through. The larger the hole say that the development of the internet has fun- (i.e., the greater the bandwidth), the faster the in- damentally altered the way Americans speak, lis- formation moves from the internet to the user.'3 ten, work, shop and play.2' Because dial-up access has evolved over the past The advent of broadband, primarily deployed 30 years in the context of the telephone network, to residential users through cable systems with no a substantial body of law exists requiring teleph- history of common carrier or open access regula- ony networks to provide "open access" to internet tion, threatens to change all of this. Although service providers.' 4 The common carrier tele- common carriers have begun to deploy broad- phone networks must carry the traffic of any ISP band services through open networks, cable com- under nondiscriminatory terms, even where the panies have taken a commanding lead. 2 Unlike telephone network itself provides internet service. telephone companies, cable companies generally As a result, individuals have a wide choice of ISPs do not need to provide access to their networks to offering a variety of services.15 More than 6,000 competitors.23 As a result, cable companies that ISPs offer dial up services' 6 to the nearly 100 mil- provide two-way communications services and in- lion Americans who are on line.'7 More than ternet access need not provide subscribers with a ninety-five percent of Americans live within the lo- choice of ISP. Rather, a cable system operator can cal calling area of four or more ISPs,1s with aver- require any subscriber who wishes to use its cable age costs less than $20 per month for unlimited system for broadband services to subscribe sepa- internet access. rately to the cable company's affiliated ISP. Cable '9 This open access regime has permitted the de- operators have generally exercised this privilege velopment of an unusually competitive and robust and have refused to allow competing ISPs to ac- market in which consumer choice prevents even cess their cable networks at any price.24 the largest ISPs from dominating the market. As a This difference would not seem important if [hereinafter UNREGULATION OF THE INTERNET]. Cable Companies Staking Claim In ISP Race, (visited Nov. 9, 13 See FCC CABLE SERVICES BUREAU, BROADBAND TODAY: 1999) ; Broadband Media Compare INDUSTRY MONITORING SESSIONS 19 (staff report authored by Well, (visited Oct. 30, 1998) (predict- Deborah A. Lathen) (1999) [hereinafter BROADBAND To- ing that by 2002 more than one-quarter of American house- DAY]. holds will use broadband, and 80 percent of these house- 14 See UNREGULATION OF THE INTERNET, supra note 12, at holds will use cable rather than DSL). Other technologies, 18-20. such as internet access via wireless, via satellite provider, or 15 See id. at 5 (crediting open access to the telephone net- via electric power lines, are still several years away from wide- work as the key to the explosive growth of the internet). spread deployment. See generally In re Inquiry Concerning De- 10 See id. at 17. ployment of Advanced Telecommunications Capability to All 17 See NUA Ltd., How Many Online?, NUA INTERNET Americans in a Reasonable and Timely Fashion, Report and SURVEYS (visited Nov. 8, 1999) . Report] (describing state of broadband deployment). Further- 18 See UNREGULATION OF THE INTERNET, supra note 12, at more, as discussed in Part II.C. infra, the arguments in this 17. Although nothing prevents an individual from using dial- article in favor of mandating open access to the cable apply up access outside a local calling area, the economics of the equally to these delivery systems as well. As explained below, telephone system make such access prohibitively expensive. the First Amendment arguments presented herein apply to Consumers pay a flat rate for unlimited local calls, whereas all means of internet access, and the presence of competing long-distance calls are paid for on a metered per-minute ba- monopoly access providers does not relieve the need for sis. As a practical matter, therefore, an individual's choice of open access. ISPs is generally limited to those that maintain a point of 23 Cable system operators must provide access to their presence ("POP") in the local calling area. See id. at n.47. networks for those wishing to provide competing video pro- 19 See id. at 5. gramming under the "leased access" provisions of the 1992 20 Reno, 521 U.S. at 870. Cable Act. See 47 U.S.C. § 532 (1994). Other provisions of the 21 See, e.g., UNREGULATION OF THE INTERNET, supra note Act allow a local franchising authority ("LFA") to demand a 12, at 4; NUA Ltd., Net Economy Worth U.S. $507 Billion by set-aside of channels for public, educational and government 2000, NUA INTERNET SURVEYS, Oct. 27, 1999 . 24 In response to the inability to negotiate a price for ac- 22 See, e.g., BROADBAND TODAY, supra note 10, at 25-29; cess, at least one ISP-Internet Ventures, Inc. (RV)-has at- COMMLAW CONSPECTUS [Vol. 8 broadband were simply a faster version of narrow- in 2002.27 Following its acquisition of TCI, AT&T band. The difference in speed is not merely one announced plans to also acquire the cable MSO of convenience, however, but of functionality. MediaOne.28 Assuming AT&T is permitted to ac- Services such as movie-quality video or digital te- quire MediaOne, AT&T will directly or indirectly lephony simply cannot take place at lower speeds. control approximately sixty percent of the na- In addition, web pages have grown increasingly tion's cable networks.29 complex and rich in information, a trend likely to Alarmed at the potential monopoly in deploy- continue. As web pages become "fatter," they re- ment of broadband services, consumer groups, quire more bandwidth to download and take competing ILECs and large internet service prov- more time to pass through the last mile bottle- iders such as America Online ("AOL") vigorously neck. Over time, narrowband service will become pressed the FCC to adopt an "open access" re- less useful; more of the internet will become ac- quirement either as a general regulation or as a cessible only through broadband connections. condition of permitting AT&T to acquire TCI and MediaOne.11 In an "open access" regime, cable networks must allow competing ISPs to access B. The AT&T Case their networks at non-discriminatory prices."' In 1998, AT&T purchased Tele-Communica- However, the FCC has repeatedly refused to im- tions, Inc. ("TCI"), the largest multiple system pose such a condition32 owner ("MSO") in the United States.25 AT&T an- Every cable system operates under a local nounced that it would use TCI's cable plant to of- franchise;33 every TCI or MediaOne system ac- fer broadband internet access and local telephony quired by AT&T must transfer its local franchise service in competition with incumbent local ex- to AT&T. This transfer process allows each local change carriers ("ILECs").*21 AT&T assumed an franchise authority ("LFA") to scrutinize the exclusive arrangement with TCI's affiliate broad- transaction and impose open access conditions. band ISP, @Home Corporation, that terminates Taking advantage of this structure, consumer tempted to use the leased access provisions of the Cable Act § 2 (1994) (outlawing monopolization or attempts to monop- to secure a channel for broadband internet access. See In re olize); 15 U.S.C. § 18a (1994) (establishing procedures for Petition of Internet Ventures, Inc., Dkt. No. CSR-5407-L, at 4 premerger notification of the Assistant Attorney General and (Aug. 11, 1999). The Commission denied this petition on the Federal Trade Commission for certain transfers). February 18, 2000. See generally In re Petition of Internet Ven- 29 See DEBORAi L. MORRIS, CABLE TELEVISION LAw 1999 tures, Inc., Dkt. No. CSR-5407-L, Memorandum Opinion and UPDATE: COMPETITION IN VIDEO, INTERNET AND TELEPHONY, IN Order, FCC 00-37 (Feb. 18, 2000) [hereinafter IV! Order]. The PATENTS, COPYRIc.HTS, TRADEMARKS, AND LIrERARY PROPERTnY Commission relied on the fact that § 532 explicitly sets aside COURSE HANDBOOK SERIES 578, 147 (Practicing Law Institute, commercial leased access channels for "video programming." Oct. 1999) (stating that "contrary to its assertions, AT&T See 47 U.S.C. § 532(b)(5) (1994 & Supp. I1 1997); see also IVI would gain ownership interests in cable plant infrastructure Order, supra, at para. 12. The Commission explicitly refused allowing it to pass more than 56 million homes, or 59 percent to determine whether internet services provided over cable of all cable homes passed in the country"). See generally Con- generally constitute "cable services" or "telecommunications* stiner Federation of America, Consumers Demand Open Access services." IVI Order, supra, at para. 11. to the High Speed Internet (visited Feb. 20, 2000) 25 See In re Applications for Consent to the Transfer of Control of Licenses and Section 214 Authorizations from "I AT&T/TCI Merger Order, 14 FCC Rcd. at 3197, para. Tele-Communications, Inc. to AT&T Corp., Memorandum 75; Advanced Services Report, 14 FCC Rcd. at 2449, para. 101. Opinion and Order, 14 FCC Rcd. 3160 (1999) [hereinafter "I See No GateKeepers FAQ (visited Jan. 15, 2000) AT&T/TCI Merger Order]; In re Annual Assessment of the Sta- . Attempts to tus of Competition in Markets for the Delivery of Video Pro- define "nondiscriminatory" have usually led to requirements gramming, Fifth Annual Report, 13 FCC Rcd. 24284, 24374, that competitors receive the same or better terms as affiliated para. 154 (1998) [hereinafter Fifth Annual Report]. ISPs. See, e.g., City of Portland Ordinance 1729555 (1998). 26 See AT&T/TC/ Merger Order, 14 FCC Rcd. at 3166, para. 3'2 AT&T/TCI Meiger Order, 14 FCC Rcd. at 3207, para. 9. 96; Advanced Set-vices Repoart, 14 FCC Rcd. at 2449, para. 101. 27 See How Do AT&T, Excite@Home, Fit Together, SAN JOSE The FCC has rejected both the invitation to.impose such a MERCURY NEWS, Aug. 11, 1999, at A]. condition and AT&T's argument that the Commission lacks 28 This application is pending before the FCC. See AT&T the authority to impose such a condition. Rather, the Com- Corp. and MediaOne Group Inc. Seek FCC Consent for a mission has maintained an attitude of "watchful waiting," de- Proposed Transfer of Control, Public Notice, 14 FCC Rcd. clining to regulate the market but watching closely for signs 11867 (1999). AT&T must also secure permission fiom the of developing monopoly. See generally Esbin, supra note 12; Department of Justice Antitrust division before completing Advanced Service Report, 14 FCC Rcd. at 2449; BROADBAND To- this acquisition. See generally 15 U.S.C. § 1 (1994) (outlawing DAY, supra note 13. combinations in restraint of trade). See also generally 15 U.S.C. : 47 U.S.C. § 541 (1994). 2000] First Amendment and Cable Open Access groups and other open access proponents have AT&T and @Home and the underlying technol- petitioned the LFAs to impose open access re- ogy. quirements as a condition of transferring a franchise.34 Several municipalities, led by Port- A. The AT&T/@Home Relationship land, Oregon, have responded favorably to these 35 arguments. AT&T and @Home have consistently repre- The LFA in Portland required AT&T to provide sented themselves as separate entities, although open access to its cable system to competing ISPs AT&T now owns a controlling interest in @Home. on comparable terms to those offered AT&T's af- As a legal matter, however, AT&T and @Home filiate @Home, as a condition of local service.36 In maintain independent existences and contract AT&T Corp. v. City of Portland, AT&T appealed with each other for services. As explained by the this ordinance to the U.S. district court in Oregon parties, @Home provides two services to cable cli- but lost at that level.37 AT&T has appealed to the ents such as AT&T:41 internet infrastructure, Ninth Circuit Court of Appeals. which allows access through standard internet protocols and additional proprietary content. In II. AT&T'S FIRST AMENDMENT ARGUMENT exchange, AT&T and other cable partners/clients provide @Home exclusive access to their cable AT&T has pressed two species of First Amend- subscribers, install any necessary customer prem- ment argument with increasing vigor.38 First, ise equipment, and bill the customer as part of AT&T claims a First Amendment right to provide the customer's monthly cable bill.42 the @Home service exclusively, either as speech To clarify this, one must recall that "the in- or as a protected exercise of editorial discretion.39 ternet" is not a single entity or network. Rather, Second, AT&T claims that the requirement to the internet is a "network of networks" that com- provide access constitutes "compelled speech."40 municate through the use of common proto- Before discussing these claims, however, it is im- cols.43 ISPs provide access to the internet for sub- portant to understand the relationship between scribers through proprietary networks.44 Thus, a 34 See, e.g., No Gatekeepers (visited Feb. 20, 2000) ramgen/pdxvsattv.rm>. AT&T has also pressed this argument (listing groups who support before the FCC as grounds for rejecting an open access re- open access). quirement. See Reply Comments of AT&T Corp. and MediaOne in 35 At the time of this article, LFAs that have required CS Dkt. No. 99-251, at 121-22 (Sept. 17, 1999). open access as a condition of offering internet access service 39 See AT&T Brief, supra note 38, at 19. See also, e.g., Reply include Broward County, Florida; Fairfax City, Virginia; Cam- Comments of AT&T Corp. and MediaOne, supra note 38. bridge, Massachusetts, and North Andover, Massachusetts. 40 AT&T also claims that conditioning open access on Several other LFAs have included "Portland clauses," clauses providing internet service "punishes" it for providing that allow them to reexamine the issue of open access if Port- @Home's speech, in violation of the First Amendment. land's open access provision is upheld in court. See Mary Ann Courts have routinely rejected such claims, finding that a Barton, AT&T Decision to Open Cable Internet to ISP Doesn't Im- condition based on offering a service is content-neutral. See, press County Officials, NATIONAL ASSOCIATION OF COUNTIES e.g., Time Warner Entertainment Co. v. FCC, 56 F.3d 151, (visited Jan. 18, 2000) ; Patricia Fusco, Gang of Four Takes on AT&T- 41 @Home notes in its brief that it provides these services MediaOne in Massachusetts, INTERNETNEWS.COM (visited Jan. for other cable companies that choose to use @Home as a 18, 2000) ; Patricia Fusco, Open Ac- means of providing internet access to subscribers. Brief of cess Debate Comes to Virginia, INTERNETNEWS.COM (visited Jan. @Home, at 8, City of Portland,N o. 99-35609 (11 Cir. Aug. 16, 18, 2000) ; FCC to Fight Open Cable 1999), available at . land/19990816exc.htm> [hereinafter @Home Brief]. AT&T 36 AT&T Corp. v. City of Portland, 43 F. Supp. 2d 1146, and @Home have an exclusive contract only in that AT&T 1150 (D. Or. 1999). agrees to use @Home to the exclusion of other ISPs. Id. at 37 See id. at 1156. The appeal has been docketed at No. 4-5 (describing exclusive distribution arrangements with 99-35609 (9th Cir. 1999). cable operator/clients). See Barton, supra note 35. This exclu- 38 Although AT&T's briefs focused primarily on the pre- sivity will last until 2002, and AT&T has indicated that it may emption issue, AT&T attempted to cast this in a First Amend- contemplate opening its network when its existing contract ment light in its oral argument before the Ninth Circuit with @Home ends. See id. Court of Appeals. See generally Brief of Appellant, City of Port- 42 @Home Brief, supra note 41, at 4-5. land, No. 99-35609 (11th Cir. Aug. 9, 1999) available at 43 See ACLU v. Reno, 929 F. Supp. 824, 830 (E.D. Pa. , 1996). For a general description of the internet and its opera- [hereinafter AT&T Brief]. A video record of the oral argu- tions, see DIGITAL ToRNADo, supra note 12, at 10-22. - ment may be found at ; GTE Demonstrates Ease Of Cable 79 See, e.g., Red Lion Broadcasting Co., Inc. v. FCC, 395 Open Access to Multiple ISPs; ClearwaterT rial Shows One-Time In- U.S. 367, 387 (1969); Warner Cable Communications, Inc. v. vestment of Less Than $1 Per Home Would Provide Consumer City of Niceville, 911 F.2d 634, 638-40 (11th Cir. 1990). Ac- Choice (visited Feb. 11, 2000) . 476 U.S. 488 (1986) (grant of exclusive cable franchise may Although AT&T criticized the study and questioned its valid- violate First Amendment of would-be cable providers). See ity, it produced no evidence to the contrary. See Opposition also Reno v. ACLU, 521 U.S. at 847 (state may not create Brief of U.S.West, Interprise America, Inc., GTE In- "hecklers veto" that would silence others); New York Times ternetworking, Inc., and OGC Telecomm, Ltd., at n.35, City Co. v. Sullivan, 376 U.S. 254 (1964) (libel law may not be of Portland, No. 99-35609, available at used to silence the press); Sunstein, supra note 8, at 144-45 . crowd control measures to prevent hostile audience from si- 75 See City of Portland, 43 F. Supp. 2d at 1154; see also lencing speaker). AT&T/TCI Merger, 14 FCC Rcd. at 3206-07. 80 Red Lion, 395 U.S. at 387. 76 This takes AT&T at its word that it will not discrimi- 81 See Riley v. National Federation of the Blind of N.C., nate. As discussed below, AT&T also has incentive to force Inc., 487 U.S. 781, 796-97 (1988). COMMLAW CONSPECTUS [Vol. 8 political or ideological speech 2 or to associate vertising or might resent the fact that generic ad- with ideas it finds distasteful.83 AT&T raises the vertising helped rival fruit growers as well as them- claim that carrying the speech of other ISPs con- selves, these objections did not raise a First stitutes "compelled speech" and therefore violates Amendment issue. The assessment therefore con- the First Amendment.84 stituted a straightforward economic regulation, Any such claim must be analyzed under the requiring only a rational basis to support its con- Supreme Court's most recent statement on com- stitutionality.96 pelled speech, Glickman v. Wileman Brothers & Elli- The same analysis applies to open access in the ott, Inc.85 Glickman addressed the authority of U.S. absence of channel scarcity. To return to the Secretary of Agriculture to enforce an assessment AT&T case, the open access regime does not pre- against California nectarine growers for generic vent AT&T from providing to any willing sub- advertising of California fruit.86 Some nectarine scriber AT&T's own repertoire of cable services growers objected, arguing that they could spend and products. Nor does'open access compel the money more profitably on individual advertis- AT&T to engage in any speech; it merely requires ing and that generic advertising benefited their AT&T to make its cable plant available so that a business rivals.17 The court rejected the growers' subscriber to its cable service may affirmatively First Amendment claims."" seek the services of a different ISP. The Court found three factors determinative.8 9 Finally, because AT&T has stated that a sub- First, the assessment for generic advertising and scription to @Home provides a subscriber with ac- the general regulatory scheme did not impose any cess to the entire content of the internet, AT&T restraint on the plaintiffs' abilities to communi- cannot claim that its is "endors[ing] or cate their own message.t1 The growers remained financ[ing] any political or ideological view" or free to engage in whatever individualized or any message it finds objectionable. As the district targeted advertising they wished.91 The assess- court found in the Portland case, AT&T cannot ment's reduction of the growers' individual adver- claim a right of editorial discretion because sub- tising budgets did not constitute any sort of im- scribers will not hold it accountable for objection- pediment or penalty on transmitting their able content found on the internet.97 individual messages.92 Second, the scheme did It is also worth noting that courts have found not compel any grower to engage in actual or sym- other "open access" provisions applied to cable bolic speech or appear to endorse such speech; constitutional, even where a greater possibility ex- the generic advertising was created and attributed ists that a cable subscriber will mistakenly ascribe to the broader organization of California fruit the views of the outside speaker to the cable oper- 93 growers. ator. For example, cable operators must provide Finally, the statutory scheme did not require access to their cable systems to local broadcast sig- the plaintiffs to finance any political or ideologi- nals ("must-carry"),98 outside unaffiliated pro- cal views or abhorrent messages.94 The sole gramming ("leased access")9 or public, educa- message of the generic advertising was "buy Cali- tional and government programming ("PEG fornia fruit," a message to which the growers channels"),"10 and must provide these services as could not possibly object.95 Although growers part of their regular programming package indis- might prefer individual advertising to generic ad- tinguishable from its own program offerings. By 82 See Keller v. State Bar of California, 496 U.S. 1 (1990); 94 See id. at 469. Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1997). 95 See id. at 472. 83 See Hurley v. Irish-American Gay, Lesbian and Bisexual 96 See id. at 470. Group of Boston, Inc., 515 U.S. 557 (1995). 84 See id. 97 See City of Portland, 43 F. Supp. 2d at 1154. 85 521 U.S. 457 (1997). 98 See 47 U.S.C. § 534 (1994) (noting that "[m]ust-carry 86 See id. at 460-61. involves the requirement that cable systems carry local broad- 87 See id. at 463, 467-88. cast stations") 88 See id. at 469. 99 See 47 U.S.C. § 532 (1994) (stating that cable opera- 89 See id. tors must set aside a specific number of channels for leased 90 See id. access by private individuals). 91 See Glickman, 521 U.S. at 469. l00 See 47 U.S.C. § 532 (1994) (stating that an LFA may 92 See id. at 470. require a cable operator to set aside channels for public, edu- 93 See id. at 470-71. cational or government ("PEG") use).

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