Regulating Broadband Communication Networks

Professor Allen Hammond argues that the impending development of broadband communication networks has the potential to expand and equalize speech rights by endowing the public with more numerous and more powerful opportunities for speech. To realize these benefits, however, Congress must design a novel regulatory scheme that will maximize the speech rights of both the owners and the users of broadband communication networks. Current regulatory schemes governing print, broadcast and cable provide media owners and editors with extensive speech rights, but fail to provide sufficient public access. In contrast, the regulatory scheme governing telephone service providers assures public speech rights only by depriving media owners of all opportunities for speech. This article asserts that the regulatory scheme for broadband communication networks should be based on the public forum doctrine. Broadband communication networks with market-based, technology-driven, or governmentsanctioned monopolies should be deemed public fora and required to provide unrestricted public access. Public forum owners should also retain the right to generate original programming or "speech" through fully owned subsidiaries. Other broadband communication networks should be permitted to choose between public and private forum status. This novel regulatory scheme would protect the speech rights of media owners and users, and minimize the threats of private and government censorship inherent in existing regulatory schemes. The author concludes by emphasizing that Congress should eschew the licensing of regulated monopolies, and instead promote unconstrained market entry. At the same time, Professor Hammond maintains that Congress must establish the incentives needed to assure that the broadband communication networks of the future are interconnected and accessible to the public.