Of course, it is a rare case . . .  in which a law survives strict scrutiny. 

74

  As one 

prominent authority noted,  [w]hen some form of heightened scrutiny is applied, the law may 

properly be regarded as presumptively invalid, and likely to be struck down. 

75

This case presents no exception to the general rule of constitutional infirmity.  The FTC 

has not proffered any  compelling  interest that is served by singling out the commercial speech 

of Internet and Web services firms for restrictions imposed on virtually no other businesses.  To 

the contrary, inasmuch as the proposed amendments to the TSR create unique obstacles to the 

marketing of commercial Internet access service, the Commission's proposal actively 

undermines the high priority that both Congress and the administration have placed on speeding 

the deployment of high speed Internet service.

76

  The FTC's proposal to target Web and Internet 

access services for special selective regulations also runs counter to the Commission's 

traditionally cautious approach to adopting rules and policies that could retard the growth of the 

Internet economy.  As Commissioner Swindle observed, considering the size and importance of 

this economic sector,  [t]he economic consequences of government actions in e commerce will 

74

Burson v. Freeman

, 504 U.S. 191, 211 (1992). 

75

 1 Rodney A. Smolla & Melville B. Nimmer, 

Freedom of Speech

,   4:3 (1999). 

76

See 

Remarks by Secretary of Commerce Donald L. Evans to the Precursor Group, February 6, 2002, 

available at

http://osecnt.doc.gov/public.nsf/docs/Evans Precursor Group ( We're working on ways to help accelerate 

broadband deployment and usage . . . . NTIA will work closely with the FCC to craft the right regulatory policies to 

facilitate broadband deployment and the creation of a competitive broadband marketplace . . . .  ); Remarks of 

Commerce Assistant Secretary and NTIA chief Nancy Victory, January 23, 2002, 

available at

http://www.ntia.doc.gov/ntiahome/speeches/2002/ outlook_012302.htm ( broadband issues are a top priority for 

President Bush and his administration ); 

see also 

S. Rep. No. 104 230, at 50 (1995) ( deployment of advanced 

telecommunications services  is one of the  primary objectives  of the Telecommunications Act of 1996);  

Telecommunications Act of 1996,   706, Pub. L. 104 104, Title VII, Feb. 8, 1996, 110 Stat. 153, reproduced in the 

notes to 47 U.S.C.   157 (directing the FCC to conduct yearly review of deployment and make any regulatory 

changes necessary to ensure that high speed internet access, among other capabilities, is being expeditiously 

deployed). 

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