First Amendment Trump?: The Uncertain Constitutionalization of Structural Regulation Separating Telephone and Video

The Cable Act of 1984 contained a cross-ownership ban, which prohibited telephone companies from entering the local cable video market. Although the ban was challenged by telephone carriers on numerous grounds, the First Amendment was not the basis of any challenge until the mid-1990s when telephone companies sought to characterize themselves not just as carriers but as content suppliers, or speakers, who were deprived of their right to speak as a result of common carrier regulations that were intended merely to control the economic structure of the communications industry. Using the First Amendment as a new-found constitutional weapon to challenge and eliminate regulations that constrain common carriers from expanding into other markets suggests that First Amendment arguments may be successful and efficient in eliminating economic-based, common carrier regulations. However, given the 1997 pronouncement by the Supreme Court in the second Turner case, in which a severely fractured Court failed to articulate any unifying constitutional jurisprudence upon which to determine whether certain common carrier regulations are content neutral, and therefore constitutional, the efficacy of First Amendment challenges may also be uncertain