Two senators have called for a congressional investigation into allegations that phone and internet service providers are suppressing certain speech based on its content. Democrat Byron Dorgan of North Dakota and Republican Olympia Snowe of Maine sent a joint request to the Commerce, Science, and Transportation Committee asking it to hold a hearing after several recent reports of content-based discrimination. Comcast recently admitted to “delaying” certain traffic on its network after it was caught terminating users' P2P connections. Last month, Verizon Wireless refused to allow the pro-choice group NARAL to use its network for a text messaging program, saying it had the right to block “controversial or unsavory” material. After a loud public response, Verizon made a quick about-face. And after similar public attention, AT&T deleted a term in its contract that had allowed the company to terminate customers' accounts for criticizing the company.
In light of such threats to communications, these two lawmakers want to look into whether the companies' actions represent an anticompetitive use of market power, which would be an antitrust violation. The First Amendment right to free speech only applies to governmental interference with speech; you don't have that vaunted right with respect to private companies. Phone companies as common carriers must service all comers, but that rule hasn't been applied to text messaging or cable internet service. Antitrust would be an interesting angle to attack what is fundamentally a free speech issue: the telecom industry has extremely high barriers to entry, and many providers have regional monopolies, so one of the ways they can exert that power is by choosing what content is allowed to pass through their network.