Today Tech Knowledge filed the following comments at the Federal Communications Commission in support of a request for relief from interim performance requirements for the 2.3 GHz Wireless Communications 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.) Read More
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.
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).