Layton

But it is not the case that all expression must be treated equally. “The Supreme Court
has rejected the notion that the government has an interest in equalizing the relative
ability of individuals or groups to speak. 147 “[T]he concept that government may restrict
the speech of some elements of our society in order to enhance the relative voice of
others is wholly foreign to the First Amendment,” 148 notes Campbell. 149
Marketing and advertising to support the provision of service, content, access to users
has a been quintessential part of every medium, whether radio, TV, print, search engine,
social network, and music streaming. Classified advertisements, a forerunner to search
advertising, supported Benjamin Franklin’s Pennsylvania Gazette in 1728. The telephone
newspaper of the 1890s, a forerunner of today’s mobile broadband, was funded both by
spoken ads and price differentiated subscriptions for different audiences. 150 Radio
broadcasting would have been unknown in America had it not been for content providers’
zero rated programming.
To stimulate purchase of receivers from the De Forest Radio Company, owner Lee De
Forest negotiated the Metropolitan Opera and the Columbia Graphophone Co., to zero
rated their music content. Free broadcasts helped introduce America to this new medium.
Thereafter it became commonplace for consumer product companies to sponsor radio
shows. This was a norm for American television. Revenues from advertisers were used to
expand radio and television networks and technologies. Unsurprisingly Internet
companies such as Google, Facebook, Yahoo and others have availed themselves to zero
rating style business models, so that their users need not pay money for the service.
Google zero-rates search and its other products. Facebook sponsors its platform with
advertising.
Marketing is also important to promote devices. Imagine if AT&T had not able to make
an exclusive distribution agreement with Apple for the iPhone in 2007. Nokia, in fact,
invented the smartphone in 1996 but never got the credit because it failed to
communicate to customers in a compelling way. 151 Consumers were able to take
advantage of the iPhone in spite of its high price of $399 because AT&T through its
subsidy of the phone created a form of zero rating of the cost of the phone to the end
user. Additionally Apple could leverage the marketing and distribution of its device in
AT&T’s subscriber network. Such an partnership was needed to launch the idea of the
smartphone in the consumer imagination 152 ; it opened the door to other smartphones
and fostered the development mobile platforms on which WhatsApp, Spotify, Netflix, and
other mobile applications have flourished. A zero rating like ban on partnerships between
operators and device makers could have precluded significant mobile innovation
Marketing is also essential for firms to differentiate themselves in the marketplace, and
even more important for service based competitors which resell service on established
networks. Consider the communication on the following two Chilean websites, one for
Movistar and the other for WOM. Movistar, the market leader, features a bourgeois
husband and wife in their properly appointed home with an offer of 150 voice minutes or
500 MB of data for a set price. Wom, an MNVO, features two girls at party sharing a
lemon wedge by mouth with the offer is 30 GB of data for $25. These are two different
customer sets with different needs and budgets. Marketing is essential for each operator
to acquire customers.
147 See Citizens United, 558 U.S. at 350.
148 Buckley v. Valeo, 424 U.S. 1, 48-49 (1976).
149 Supra
150 Roslyn Layton. “What the 19 th Century Telephone Newspaper Tells us about Today’s Internet.” August 13, 2015.
http://www.techpolicydaily.com/internet/telephone-newspaper-todays-internet/
151 “Nokia 9000 Communicator Detailed Specs,” PDAdb.net, accessed August 14, 2015,
http://pdadb.net/index.php?m=specs&id=879&view=1&c=nokia_9000_communicator.
152 Strand Consult iPhone Report, 2009. http://www.strandconsult.dk/sw3896.asp
Zero Rating - Layton/Calderwood
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