The First Amendment Case Against FCC IP Telephony Regulation

This Comment argues that IP telephony, like handbills and traditional print media, deserves First Amendment protection against FCC regulatory authority. After briefly reviewing the IP telephony phenomenon within the larger context of "digital convergence," the Comment examines the FCC and Supreme Court’s technologically driven First Amendment jurisprudence—particularly, 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, the Author offers First Amendment content-based and content-neutral arguments against the proposed telephony regulations. At the very least, the affordability and innovation IP telephony offers should constitute nontrivial factors in a court’s content-neutral balancing.

Finally, the Comment proposes divorcing universal access funding from long-distance service as an approach to avoid burdening the First Amendment values IP telephony serves as well as side-step the category difficulties digital convergence creates.