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little control over the content which users access on the
Internet” and “allow Internet end users to access all or
substantially all content on the Internet, without alteration,
blocking, or editorial intervention,” thus “display[ing] no such
intent to convey a message in their provision of broadband
Internet access services.” 2015 Open Internet Order, 30 FCC
Rcd. at 5869 ¶ 549. In turn, the Commission found, end users
“expect that they can obtain access to all content available on
the Internet, without the editorial intervention of their
broadband provider.” Id. Because “the accessed speech is
not edited or controlled by the broadband provider but is
directed by the end user,” id. at 5869–70 ¶ 549, the
Commission concluded that broadband providers act as “mere
conduits for the messages of others, not as agents exercising
editorial discretion subject to First Amendment protections,”
id. at 5870 ¶ 549. Petitioners provide us with no reason to
question those findings.
Because the rules impose on broadband providers the
kind of nondiscrimination and equal access obligations that
courts have never considered to raise a First Amendment
concern—i.e., the rules require broadband providers to allow
“all members of the public who choose to employ such
facilities [to] communicate or transmit intelligence of their
own design and choosing,” Midwest Video, 440 U.S. at 701
(internal quotation marks omitted)—they are permissible. Of
course, insofar as a broadband provider might offer its own
content—such as a news or weather site—separate from its
internet access service, the provider would receive the same
protection under the First Amendment as other producers of
internet content. But the challenged rules apply only to the
provision of internet access as common carriage, as to which
equal access and nondiscrimination mandates present no First
Amendment problem.
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