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.
Fred Campbell published this piece at Forbes today explaining how the “FCC’s net neutrality rules impose the same old rate regulation on ISPs with the ‘modern’ addition of unfair procedures and discriminatory enforcement.”
Click HERE to download the paper in PDF.
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 chose “A”, and the First Amendment demands it. The Federal Communications Commission (“FCC”) nevertheless chose “B” in the Second Internet Order: 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
Today I joined a diverse coalition of web entrepreneurs, investors, telecom and antitrust experts, and policy organizations who signed a letter urging lawmakers of both parties to take responsibility for resolving net neutrality through legislation. The letter states, “Congress, not three unelected officials, should decide the future of the Internet.” The American people would be better served if that future does not include Title II or vague and expansive FCC authority under “Section 706.” The complete letter is available HERE.
Washington, D.C., January 14, 2015 – Fred Campbell, Director of the Center for Boundless Innovation in Technology, released the following statement with respect to President’s Obama’s broadband announcement today in Cedar Falls, Iowa:
“President Obama’s latest plan to turn the Internet into a public utility is bad economics and bad for our Constitutional right to a free press. The approach to broadband adopted by Cedar Falls, where the President is revealing his plan, repeats the economic errors of the past.
The Cedar Falls network is owned by the city’s rate-regulated power utility. The Federal Communications Commission has long recognized that combining rate-regulated services with other services leads to hidden price increases. This “cross-subsidization” concern — that power companies have incentives to raise consumer electric bills to pay for the deployment of broadband networks — is why the Department of Justice sued to break up the AT&T monopoly in the early 1980s.
Though this problem can be avoided by keeping municipal broadband networks separate from power companies, many independent, government-owned broadband networks have failed, leaving taxpayers to clean up the mess. Burlington Telecom in Vermont used $17 million in city funds before defaulting on its debt obligations. Similarly, the city of Provo, Utah was subsidizing its broadband network at the rate of $2 million per year until it decided to sell the network to Google for one dollar.
Turning broadband networks into public utilities would also put the freedom of the press at risk. The Founders knew through their own, living experience that governments can control ideas by controlling the means of their dissemination. That’s why the First Amendment protects the printing press — the mass media technology of their day — from government control. That protection is equally applicable to the Internet, which is rapidly becoming the primary mass media technology of the present day. Permitting government ownership of a monopoly broadband network would be every bit as dangerous as permitting government ownership of a monopoly newspaper.”
A version of this post was previously published by 4G Trends.
It’s no mystery why the Democratic Party lost big in this year’s election: “The party of economic despair will always lose.” President Obama has presided over six years of lackluster economic growth. “Progressive Democratic policies on Keystone, power-plant closures and oils exports crushed younger, unionized job seekers.”
This week, the President doubled down on his bad economic policies when he announced his plan to impose net neutrality through ‘Title II’ price regulation of Internet broadband providers — a plan that will discourage investment in new communications infrastructure and threaten our economic recovery.
Over the last three years, America’s broadband providers have been the brightest source of economic hope during a particularly gloomy recession.
The Progressive Policy Institute (PPI) ranks AT&T, Verizon, and Comcast among the top ten U.S. “investment heroes” — the companies who are investing the most capital in the United States. These three companies alone have invested nearly $125 billion in the U.S. over the last three years, with AT&T and Verizon topping the list on an annual basis.
Obama’s response to their investments in America’s long-term future? A government plan that would take the value of their investments and gift it to his allies in Silicon Valley — companies that haven’t been willing to make the same level of investment on American soil. Read More
This morning, President Obama urged the Federal Communications Commission to impose common carrier regulation on the Internet using Title II of the Communications Act. CBIT’s Director, Fred Campbell, responded as follows:
“Imposing Title II regulations on the Internet would discourage investment in new communications infrastructure and threaten our economic recovery. Investment in the Internet is flourishing under the current light-touch regulatory approach using the FCC’s section 706 authority, an approach that was pioneered in the Clinton-era and approved by Federal courts earlier this year. The President’s plan would reject the legal roadmap using section 706 that was approved by the courts in favor of an untested, heavy-handed approach originally designed for the analog telephone system. Applying Title II to the Internet would create legal uncertainty at home and encourage the efforts of totalitarian regimes abroad to tighten their control over the Internet — the 21st Century’s mass media communications system.”
Yesterday the Internet Innovation Alliance posted the video stream from its event entitled, “Title II Regulation and its Potential Impact on Deployment of 21st Century Broadband Networks and Services,” featuring FCC Commissioner Ajit Pai. The video is available HERE.
Advocates for increasing regulation of broadband providers in the United States frequently point to Europe’s highly regulated broadband market as an example the US should emulate — if only their claims were true. A new research report prepared by a PhD fellow in Internet economics at Aalborg University in Denmark concludes that, “The data unequivocally demonstrate that the US exceeds the EU [European Union] on a number of important broadband measures.”
The most dramatic difference is in the availability of high-speed Internet technologies, including Internet speeds of 100 Mbps or greater, fourth generation (4G) wireless LTE broadband, fiber to the home (FTTH), and broadband over cable systems. This chart comparing the availability of broadband technologies, which uses data from the report, illustrates the stark differences between broadband deployment in the US and the EU. (Click on the chart to enlarge it.)
Europe’s struggle with broadband availability is largely due to the lack of private investment in broadband infrastructure within the EU. Read More
In City of Arlington v. FCC, 133 S.Ct. 1863 (2013), the Supreme Court held that administrative agencies are entitled to Chevron deference when they interpret the scope of their statutory authority (or “jurisdiction”). As a practical matter, this holding is unlikely to have a substantial impact on most agencies, because it is consistent with current practice in most federal courts of appeal. It has particular relevance for the Federal Communications Commission (FCC), however, which had relied on its ancillary jurisdiction to extend traditional common carrier regulations to the Internet. To the extent there was any lingering doubt, City of Arlington clarified that the FCC cannot rely on ancillary jurisdiction (also known as ancillary authority) to impose regulations that would (1) exceed the statutory boundaries of the Communications Act or (2) contradict a specific provision within the Act.
The Supreme Court’s clarification in Arlington dictated the DC Circuit’s decision vacating the net neutrality anti-blocking and anti-discrimination rules earlier this week. (See Verizon v. FCC, No. 11-1355 (DC Cir. 2014)) The broadband access provided by Internet service providers (ISPs) is classified as an “information service” under the Communications Act, and the Act expressly prohibits the FCC from regulating information service providers (e.g., ISPs) as common carriers. The court found that the FCC lacked authority to enact the anti-blocking and anti-discrimination rules, because they constituted traditional common carrier requirements and thus contravened a statutory mandate. Read More