First Amendment

Statement On FCC Plan To Undo Obama’s Net Neutrality Rules

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

Washington, DC, November 21, 2017 – Fred Campbell, director of Tech Knowledge, issued the following statement regarding the Federal Communications Commission’s plan to undo the Obama administration’s net neutrality rules:

“Tech Knowledge welcomes the FCC’s open and transparent effort to repeal the last administration’s unconstitutional net neutrality rules. In the absence of a market failure, the constitution doesn’t permit the FCC to treat the information superhighway or any other institution of the press like a public utility. This foundational principle of our system of government must be restored.”

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.

Statement On FCC Chairman Pai’s Net Neutrality Speech

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

Washington, DC, April 26, 2017 – Fred Campbell, director of Tech Knowledge, issued the following statement on FCC Chairman Ajit Pai’s speech announcing his net neutrality plans:

“I applaud Chairman Pai’s decision to use an open and transparent process for reversing Obama’s decision to snatch political control over the internet using net neutrality as an excuse. It was an act of extraordinary bravery for Pai to start this process, and it will take an iron will for him to stand up to the Silicon Valley giants that seek to squash his plan. If they succeed, America will never be great again.

Today’s speech sets the stage for a David and Goliath battle between Pai and Google, the richest and most powerful corporation the world has ever known. Obama’s net neutrality rules were designed to support Google’s business interests, and Google will throw all its strength behind them.

It’s impossible to overstate the Google Goliath’s strength. Its power goes far beyond the massive amounts it spends on lobbying and its work on behalf of the Obama and Hillary Clinton political campaigns.

Google’s monopoly over internet advertising also gives it unseemly influence over the opinions of mainstream media. The thousands of newspapers, TV stations, and other media that rely on Google’s advertising network for a substantial portion of their revenue streams cannot afford to oppose Google on net neutrality.

That’s why Pai’s speech took so much courage. Both the mainstream media and the world’s richest corporations will be against him.

Americans who believe in free speech, freedom of the press, and fair competition cannot let him stand alone. Pai is internet freedom’s David. At this hour, we must stand by Pai.”

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 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

Why The FCC’s ‘Unlock The Box’ Plan Is Doomed To Fail

Posted by | Video | No Comments

Yesterday Tech Knowledge filed ex parte letters in the FCC’s ‘Unlock The Box’ proceeding that summarize the legal infirmities of the agency’s proposal to regulate set-top boxes. The letters conclude the FCC’s plan is doomed to fail in a legal challenge because:

  • The FCC plan would require MVPDs to offer their video services for resale by third-parties on a common carriage basis in violation of sections 542(c) and 153(11) of the Communications Act, which expressly prohibit the FCC from regulating MVPDs as common carriers.
  • The FCC plan would violate MVPDs’ First Amendment rights by restricting their editorial discretion in a manner that cannot be justified under intermediate or strict scrutiny.
  • The video interface between consumers and MVPD programming is itself core speech that is entitled to strict First Amendment scrutiny; and even if the video interface were not considered core speech in and of itself, an MVPD’s interface would still be entitled to First Amendment protection due to its close nexus to an MVPD’s exercise of editorial discretion with respect to its underlying video programming.
  • The FCC’s competitive justification for abridging MVPDs’ First Amendment rights is insufficient to demonstrate harm justifying the elimination of editorial discretion by a particular class of the press because the FCC has already found the market for MVPD services (which necessarily encompasses navigation devices) effectively competitive. The First Amendment requires the FCC to “explain[] why, in the pursuit of diversity, the independence of competing vertically integrated MVPDs is inferior to the independence of unaffiliated [navigation device companies].” Time Warner Entm’t Co., L.P. v. F.C.C., 240 F.3d 1126, 1139 (D.C. Cir. 2001).
  • The plan also burdens far more speech than necessary to remedy whatever competitive issues might exist with respect to navigation devices, because there are readily-available alternatives that would eliminate any need for a separate navigation device (or separate navigation software) without abrogating MVPDs’ editorial discretion (e.g., the app-based proposal).
  • Shifting control over the video interface from MVPDs to Internet software companies would threaten the free flow of information and ideas by concentrating control over the video interface in the hands of a few, giant Internet software companies. Internet software companies would have the same incentives as MVPDs to influence consumer behavior in the video marketplace but would have far greater ability to do so than MVPDs, because the largest Internet software companies (1) have greater scale and ability to reach consumers than MVPDs, but (2) would not be subject to the FCC’s regulatory constraints on MVPD market structure or public interest obligations (e.g., political advertising disclosures).

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.