Freedom of Speech

Tech Knowledge Comments on FCC Privacy Proceeding

Posted by | Broadband Internet, Freedom of Speech, Privacy | No Comments

Yesterday Tech Knowledge filed the following comments at the Federal Communications Commission in its proceeding on the application of section 222 to broadband internet access service. The complete comments as filed can be downloaded in PDF format HERE. (Note, the HTLM version of the comments printed below does not contain the footnotes provided in the PDF version available at the link above and filed at the FCC.)

Introduction

Unlike the “telecommunications” traffic carried by the plain old telephone network, internet traffic is valued by advertisers. The data generated by internet traffic is so valuable that at least half of the internet’s economic value is based on the collection of individual user data (primarily for advertising) and most commercial content on the Internet relies on advertising to some extent. “Advertising lessens the cost that each user must pay to receive the benefits of the Internet, and expands the size of the system that society can afford to have.” To put this in perspective, the market for digital advertising ($59.6 billion) is now three times larger than the market for broadcast television advertising ($18.6 billion), and digital advertising is still growing at double-digit rates (20.4% in 2015) while broadcast television advertising is stagnant or declining. Just as watching ads is part of the price consumers pay for free broadcast television, providing access to user data is part of the price consumers pay for the internet as we know it today. Whatever benefits consumers might derive from more stringent regulation of internet data practices will necessarily involve a tradeoff in terms of higher costs — like the premium consumers pay for video services that do not sell advertising (e.g., HBO Now at $14.99 per month).

The FCC’s decision to regulate the usage of internet data for marketing purposes thus raises a central question: When and under what circumstances are the costs imposed on consumers by particular ex ante prohibitions on internet marketing (including costs to market competition) fully offset by the benefits consumers would derive from preventing such use of their data in those circumstances? Read More

Tech Knowledge Statement On Federal Court’s Net Neutrality Ruling

Posted by | Broadband Internet, Freedom of Speech, Net Neutrality Series 2.0 | No Comments

Haymarket, VA, June 14, 2016 – Fred Campbell, director of Tech Knowledge, issued the following statement regarding the D.C. Circuit Court of Appeals decision upholding the FCC’s most recent net neutrality rules:

“For the first time in history, a federal court has granted the government the power to regulate the press as if it were a public utility. The First Amendment’s protection for the freedom of the press has never been in greater jeopardy.

Make no mistake — this opinion marks a fundamental change in First Amendment law. Until today, the federal courts interpreted the First Amendment as prohibiting the FCC from regulating the transmission of video content and the distribution of newspapers as common carriage. Today’s decision abandons this protection for the freedom of the press and gives government the right to censor the news by imposing restrictions on its distribution.

This decision is a victory for government censorship and a stunning defeat for the free press. It’s now up to the Supreme Court to protect the First Amendment principles that form the foundation of a free and open society.”

Tech Knowledge promotes market-oriented technology policies on behalf of the public interest. Additional information about Tech Knowledge can be found on our website, techknowledge.center.

Tech Knowledge Comments on FCC Proposal to Force MVPDs to Offer Unbundled Wholesale Services

Posted by | Broadband Internet, Freedom of Speech, Satellite, Video | No Comments

Today Tech Knowledge filed the following comments at the Federal Communications Commission that address an FCC proposal to force MVPDs to offer unbundled wholesale services in the guise of creating competition in the artificial market for set-top boxes (a proposal dubbed Unlock the Box by FCC Chairman Tom Wheeler). The complete comments as filed can be downloaded in PDF format HERE. (Note, the HTLM version of the comments printed below does not contain the footnotes provided in the PDF version available at the link above and filed at the FCC.)

Executive Summary

The Wholesale Proposal Is an Impermissible Common Carriage Requirement

The FCC’s proposed regulations (the “Wholesale Proposal”) would do more than merely create competition in a market for the “equipment” used to access MVPD services that is artificially separated from the underlying MVPD services themselves; the proposed rules would effectively require MVPDs to provide unbundled, nondiscriminatory access to video programming “information flows” that are an essential part of otherwise fully integrated MVPD services. The avowed purpose of the Wholesale Proposal is to enable third parties to combine MVPD’s unbundled programming with “ancillary features” to provide entirely new, “differentiated” services in competition with MVPDs’ underlying services — the same justification that has traditionally been used to impose resale and other wholesale obligations on common carriers under Title II. The FCC cannot accomplish this result in the guise of promoting competition in an artificially created market for “equipment,” because mandatory wholesale requirements are fundamentally common carriage, and the Communications Act prohibits the FCC from treating MVPDs as common carriers. Read More

The First Amendment and the Internet: The Press Clause Protects the Internet Transmission of Mass Media Content from Common Carrier Regulation

Posted by | Broadband Internet, Freedom of Speech | No Comments

The Nebraska Law Review has published an article written by Fred Campbell that explains how the Press Clause of the First Amendment protects the Internet transmission of mass media content from common carrier regulation. The complete article is available HERE.

CBIT Statement on Oral Arguments in Net Neutrality Case

Posted by | Broadband Internet, Freedom of Speech, Statement | No Comments
For Immediate Release

CBIT Statement on Oral Arguments in Net Neutrality Case

Haymarket, VA, December 3, 2015 – Fred Campbell, Director of the Center for Boundless Innovation in Technology, released the following statement with respect to the oral arguments on net neutrality that will take place on December 4, 2015, before the Court of Appeals for the D.C. Circuit:

“I expect the FCC will struggle during its court defense of its new net neutrality rules. It’s impossible to square prior court decisions with the unprecedented FCC power grab in the open Internet order under review.

In the previous net neutrality case, the court said it ‘might well hesitate to conclude that Congress intended to grant the Commission’ authority to regulate the Internet with ‘no limiting principle.’ Yet there is no discernible ‘limiting principle’ on the FCC’s interpretation of Title II for the Internet.

The D.C. Circuit court has held that the public interest standard in Title II is ‘essentially one of reasonableness’ with respect to business practices, not absolutes. But the FCC’s new net neutrality rules impose an absolute ban on the business management of ISP networks. According to the FCC’s new net neutrality rules, it is never reasonable for an ISP to manage their networks for ‘business’ reasons. There is no basis in the statute for that sort of hard line.

Even if the FCC wins its statutory arguments, it will very likely lose on constitutional grounds. The law is clear that those who disseminate mass media content have a First Amendment right to exercise the freedom of the press, yet the FCC’s net neutrality rules prohibit any attempt by ISPs to exercise that right. Given that the Supreme Court has never upheld an absolute ban on the exercise of a First Amendment right, it’s highly unlikely that the D.C. Circuit will uphold the FCC’s net neutrality rules.”

The Center for Boundless Innovation in Technology (CBIT) advocates for market oriented government policies to advance innovation in technology. Additional information, blog posts and commentary about CBIT can be found on the CBIT website, cbit.org.

CBIT Amicus Brief: FCC Net Neutrality Rules Violate First Amendment

Posted by | Broadband Internet, Freedom of Speech | No Comments

Haymarket, VA, August 6, 2015 – Today the Center for Boundless Innovation in Technology filed an amicus brief in U.S. Telecom v. FCC, the court case that will determine the lawfulness of the net neutrality rules adopted by the Federal Communications Commission earlier this year. The brief makes the following arguments:

  • For First Amendment purposes, a broadband provider is indistinguishable from a printing press, a newspaper, a broadcaster, and a cable operator.
  • The net neutrality rules restrict the ability of providers to exercise any degree of discretion over their transmission of political speech, they compel them to carry the speech of all others, and they favor the speech of other Internet companies over broadband providers’ own speech.
  • Favoritism toward or against certain similarly situated speakers and the suppression of certain speech—the bottom line proposition of the FCC’s net neutrality rules—is never an important government interest.
  • The FCC failed to establish that the claimed harms are substantial or that they will further the FCC’s claimed interests.
  • That the Rules violate the First Amendment does not mean traditional common carrier regulation is constitutionally suspect.

You can download the entire brief HERE.

CBIT Statement: Court denies net neutrality stay, grants expedited review

Posted by | Broadband Internet, Freedom of Speech | No Comments

It’s no surprise that the court denied the motion for stay. The motion didn’t make the strongest and most important argument against the FCC’s totalitarian vision of net neutrality: That a total ban on the editorial discretion of Internet service providers violates the First Amendment’s command that Congress shall make no law abridging the freedom of the press. When the FCC’s order takes effect tomorrow, it will smash the wall of separation between Internet speech and the state, leaving nothing to stop government censorship until the case is decided on the merits.

New Net Neutrality Order Is a Nadir for the First Amendment & Internet Freedom

Posted by | Broadband Internet, Freedom of Speech, Net Neutrality Series 2.0 | One Comment

If a court affirms the FCC’s ruling that broadband Internet service providers (ISPs) have no right to exercise editorial discretion over Internet transmissions on their networks, the First Amendment could not stop the government from censoring the transmissions of end users on ISP networks.

The First Amendment is premised on a simple idea: Ensuring mass media communications are free of government control is a “precondition to enlightened self-government and a necessary means to protect it.” Though this principle should be obvious, it has been lost in application to the Internet age. In its recent order adopting net neutrality rules and reclassifying Internet access as a common carrier service subject to telephone regulation (“Net Neutrality Order”), the Federal Communications Commission (FCC) concluded that Internet transmissions on networks operated by broadband Internet service providers are not entitled to protection from government control. According to the FCC, the transmission of Internet communications is not constitutionally protected speech, because it is not “inherently expressive.” Net Neutrality Order at ¶¶ 547-49. The FCC relied on this conclusion to justify its decision to regulate the Internet as if it were a plain old telephone network that transmits only common carrier communications.

The FCC’s conclusion is an unprecedented nadir for the First Amendment and Internet freedom. In a paper released last week, the Center for Boundless Innovation in Technology describes four constitutional principles that explain how the Net Neutrality Order eviscerates the freedom of the press. These four principles are summarized below. Read More

CBIT White Paper: How Net Neutrality Invites the Feds to Ignore the First Amendment & Censor the Internet

Posted by | Broadband Internet, Freedom of Speech, Net Neutrality Series 2.0 | 5 Comments

Click HERE to download the paper in PDF.

Executive Summary

Is watching Netflix on the broadband Internet more like (A) watching cable television or (B) talking on the telephone? Common sense suggests the answer is “A”, the court that overturned the previous open Internet rules[1] chose “A”,[2] and the First Amendment demands it. The Federal Communications Commission (“FCC”) nevertheless chose “B” in the Second Internet Order:[3] It concluded the Internet is the functional equivalent of the public switched telephone network and is subject to the common carrier regulations in Title II of the Communications Act of 1934.

If the FCC had admitted the Internet offers communications capabilities that are functionally equivalent to the printing press, mail carriage, newspaper publishing, over-the-air broadcasting, and cable television combined, it would have been too obvious that classifying broadband Internet service providers (ISPs) as common carriers is unconstitutional. Like all other means of disseminating mass communications, broadband Internet access is a part of the “press” that the First Amendment protects from common carriage regulation. Read More