Tag: Network Neutrality

Posted on By Patrick Maines

The FCC’s Net Neutrality Vote

Not unlike the way that people present themselves as avatars in cyberspace, policymakers in Washington present themselves behind a veneer that is usually as predictable as it is tiresome. But not always!  Once or twice a decade some public official will do something that surprises, and in doing so leaves all the other players gobsmacked and reeling.

This is precisely what has happened at the FCC in recent days as the newly installed chairman, Tom Wheeler, acting in the wake of a court order, has proposed a reform of that agency’s so-called net neutrality regulations.  In a nutshell, the Wheeler proposal would allow ISPs to provide, for a fee, faster lanes to the consumer for content providers.

If you are one of those people who don’t find the idea of paying more for better things to be a deeply radical idea, your problem is that you’re unschooled in the ways of political posturing, rhetoric, and the lay of the land.  You don’t understand that, to Democrats especially, the “free and open Internet” cannot allow upgrades of the sort that would make any content provider (and that provider’s customers) happier than any other provider or its customers.  Distributive justice, you know.

In the grip of this construct, the Internet must remain a static and unchanging highway, never in need of pothole filling or additional traffic lanes.

Which is not to say that Republicans, too, don’t like Wheeler’s proposal.  Indeed, the confounding fact is that both of the Republicans on the Commission voted against the proposal while all three of the Democrats voted for it!  And in truth the Republicans are correctly concerned about the precedential effect of net neutrality on the formerly unregulated Internet.  In his statement opposing the measure, Republican Commissioner O’Rielly made this argument cogently, just as former commissioner McDowell had before him.

Still, there is the gnawing concern that, given the way the pieces are deployed on the board right now, it might have been better in the long run if the Republicans had given Wheeler some support for breaking from the Democratic ranks.

Whatever the future may hold, one thing is clear: The final resolution of this matter is nowhere in sight.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

 

Posted on By Patrick Maines

Net Neutrality Decision: A Welcome Development

Tuesday’s decision by the D.C. Circuit Court of Appeals, striking down the FCC’s so-called “net neutrality” regulations, is a welcome development.  As noted by many, these regulations amount to a solution in search of a problem, with the only lasting and real-world effects being the creation of the precedent of governmental oversight of the previously unregulated Internet.

Moreover, and as argued in this space a little over a year ago, there is an international dimension to net neutrality, as the existence of these regulations in the U.S.A. advances the agendas of countries like Russia and China in regulating the Internet through the International Telecommunication Union.

Writing today in the Wall Street Journal, former FCC commissioner Robert McDowell makes a convincing case that, for this reason too, the FCC should abandon any further attempts to promote net neutrality.

For the new FCC chairman, Tom Wheeler, this development threatens the very real prospect of becoming his signature activity for the duration of his term.  This, because if, at the urging of Internet companies like Google, plus the Obama Administration, Wheeler is importuned to try to resurrect the net neutrality rules, he basically has but two options.  One is to appeal the Circuit Court’s decision, and the other is to attempt to reclassify broadband provision as a “telecommunications service,” rather than an “information service,” something that would allow the imposition of net neutrality regs (and who knows what else) by the same authority that the FCC regulates telephone service.

But if Wheeler goes the reclassification route, it will set off congressional fireworks of a sort that will land him and the FCC in a protracted war with telecom companies, and Republican legislators, without any guarantee of success.

Still, one can only imagine the angst among the net neutrality crowd following yesterday’s decision. As reported in The Hill by Kate Tummarello, Internet companies have “pushed net neutrality with an almost religious fervor.”  Indeed, one of the most ardent pushers, the ludicrous organization called Free Press, coined the sophomoric slogan: “Net neutrality, the First Amendment of the Internet.”

So it’s not at all clear what the FCC’s next step will be, but suffice to say that the Circuit Court’s decision is going to make for some very interesting times there … and elsewhere.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

 

Posted on By Patrick Maines

Google’s Impact on Journalism

The products and services offered by Google are well known and highly regarded.  Every day, millions of consumers around the globe visit the company’s search engine or sites like Google News or YouTube.  And for this, the company’s employees and (especially) its founders have been well compensated.

But there’s another side to Google that consumers know very little about.  That is Google the corporation, and the effect its business practices are having on competitors, and most dramatically on the professional media, news and entertainment alike.

In important measure, people know little about Google the corporation because news stories and commentary about the company’s business practices are mostly confined to industry trade publications, or technology and economic journals.

Even the public policy issues that the company addresses are complex, and hard to write about in a way that wouldn’t cause most readers’ eyes to glaze over.  How, for instance, would one popularize such issues as the district and appellate court rulings in Viacom v. YouTube, or the FCC’s “network neutrality” proceedings, or the FTC’s recently concluded investigation of Google’s search and advertising policies?

So it’s easy to understand why the public at large doesn’t know much about Google’s role in these matters, but book and newspaper publishers do.  So too do movie studios and Google’s competitors in the online travel business, to name just a few.

And what all of these other companies know is that Google’s scale, business tactics, and aggressive lobbying amount to a distinct threat to their very existence.  A single datum provides a startling view of the challenge: Through the first half of 2012, Google by itself took in more ad dollars than the entire U.S. print media, magazines and newspapers, excluding only the ads on newspaper websites, which even today generate only about 25 percent as many ad dollars as print advertising.

The ways in which Google uses its dominance in search to monetize, by corralling and aggregating (without permission) the content of others, is a story that is long in telling.  But a common feature, as stated in a White Paper submitted to the FTC in 2011 by The Media Institute, is that Google’s “main search page biases Google News results over results of news organizations and other publishers.”

Nor is this the perception and complaint just of American publishers.  On June 25, a coalition of hundreds of Europe’s leading publishers urged the European Commission, which is the EU’s antitrust authority, to  reject outright some remedies that Google offered to end an investigation by the Commission of the same kind of practices the company is accused of by publishers on this side of the Atlantic.

As summarized by GigaOm, “Google is accused of surreptitiously favoring its own services in its search results, locking advertisers onto its platform and scraping content from rival, subject-specific search engines.”

In elaboration of the European publishers’ rejection of Google’s proposals, the president of AEDE, a Spanish association of daily newspapers, put it this way: “In short, Google’s proposed remedies do not address the overarching problems and fundamental harms that Google’s conduct causes in search-related markets and none of them aims at restoring effective competition….  In some ways, they might actually make matters worse by entrenching dominance and misleading consumers.”

Here, as in Europe, the principal venues of appeal for those being harmed by Google’s business practices are the antitrust authorities, which is to say quasi-political bodies.  And that’s a problem. In this country, the FTC has already dismissed an opportunity to do a full antitrust review of Google, in part, we can speculate, because there is no great public support for the news media generally.

Indeed, a Pew poll, released on July 11, found that only 28 percent of respondents believe that journalists “contribute a lot,” down from 38 percent four years ago.  And a Gallup poll, published on June 17, revealed that only 23 percent of the public have “overall confidence” in newspaper and TV news.

Given this lowly rating by their own customers, one might be tempted to dismiss the news media’s cannibalization by Google as something they had coming to them, and there’s an element of truth in that, as with the special contempt for them that the media have inculcated in conservatives and Republicans.

But there’s a much larger issue involved in Google’s anti-competitive behavior, and that is whether this (or any) country will in future have a robust and profitable news media industry, marked not by opinion but by objective news, investigative, and feature reporting.  Surely people of all political persuasions can agree that blogs and content aggregators are not going to fill that role.

At a time when the Internet is obliging mainstream news outlets to publish online, it is not yet clear whether a way can be found to make up, in that process, for the necessary advertising revenue that once came their way – a problem not confined just to the legacy media but to prospective newer entrants in the news reporting business as well.

And it is at this crossroad where Google, the company whose fraying motto is “Don’t be evil,” may prove decisive.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  This piece was first published in USA Today on July 19, 2013, under the headline "Beware of Google’s Power."

Posted on By Patrick Maines

Google, the FTC, and ‘Plausible’ Justifiability

Though it was surely not its intention, the Federal Trade Commission’s conclusion last week of its investigation of Google invites the question: What useful function does the FTC serve?

Not content, after two years of investigation on the taxpayers’ dime, to largely look past the mountain of evidence of marketplace harm caused by Google’s search and advertising practices, the Commission compounded that error by declining to issue a formal consent order, leaving it in the hands of Google itself, without the prospect of penalty, to change some of its business practices.

As even Commissioner J. Thomas Rosch said in his statement of concurrence and dissent, the FTC’s “settlement” with Google “creates very bad precedent and may lead to the impression that well-heeled firms such as Google will receive special treatment at the Commission.”

In elaboration of his dissent from the settlement procedure, Comm. Rosch added this:

Instead of following standard Commission procedure and entering into a binding consent agreement to resolve the majority’s concerns, Google has instead made non-binding commitments with respect to its search practices….

Our settlement with Google is not in the form of a binding consent order and, as a result, the Commission cannot enforce it by initiating contempt proceedings.  The inability to enforce Google’s commitments through contempt proceedings is particularly problematic given that the Commission has charged Google with violating a prior consent agreement.

What Comm. Rosch delicately calls “special treatment,” the more cynical of us would recognize as political influence peddling, a practice that Google has become quite adept at employing.  First it bankrolled the codification, at the Federal Communications Commission, of “net neutrality” regulations, thereby providing a solution to a nonexistent problem; then it led the successful opposition to the PIPA and SOPA copyright bills, the better to protect its investment in YouTube; now it has neutered the FTC, with the consequence being that it can continue to game its search results in ways that favor companies it controls.

So how has Google managed such political feats?  Well, would you believe that money has played a role?  In the FTC investigation alone Google reportedly spent some $25 million lobbying the matter.  To give an idea of the magnitude of this kind of spending, it equals 10 percent of the FTC’s total annual budget of $250 million.

But in addition to its FTC-specific lobbying, it’s well known that Google has cast its lot, through munificent campaign contributions and public policy support, with the current administration. Though it failed to come to pass, there was undoubtedly substance to the rumor that Google’s Eric Schmidt was being considered for a cabinet post in the Obama Administration.

Even so, there is evidence that the FTC commissioners know what they have done.  Their concluding statement about Google’s search practices, for instance, displays an almost comical defensiveness as they contend that, even if Google’s search practices favor its own companies, that is arguably okay:

In sum, we find that the evidence presented at this time does not support the allegation that Google’s display of its own vertical content at or near the top of its search results page was a product design change undertaken without a legitimate business justification.  Rather, we conclude that Google’s display of its own content could plausibly (emphases added) be viewed as an improvement in the overall quality of Google’s search product….  Although at points in time various vertical websites have experienced demotions, we find that this was a consequence of algorithm changes that also could plausibly be viewed as an improvement in the overall quality of Google’s search results….

Although our careful review of the evidence in this matter supports our decision to close this investigation, we will remain vigilant and continue to monitor Google for conduct that may harm competition and consumers.

Such limp-wristed rhetoric aside, there is a chance that Google will be brought to heel, just not by American authorities.  As it happens, the European Commission has also been investigating Google’s misdeeds, and the odds are good that, lacking the kind of political clout in Europe that it has in the USA, the company may actually receive from the Europeans something more than just a slap on the wrist.  On Dec. 18 the Commission gave the company 30 days to provide it with proposals to settle its complaints, something that could cost Google billions if it fails to do so.

Whatever the Europeans do, however, there remains the FTC’s foozled play, well put in a Bloomberg News editorial:

The FTC missed an opportunity to explore publicly one of the paramount issues of our day: Is Google abusing its role as gatekeeper to the digital economy?  Lawmakers, economists, other regulators, and consumers should all be in on this important debate over whether Google is leveraging its overwhelming dominance of search into unassailable market power in other areas. 

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Patrick Maines

The ITU and the Internet

In 1971, when China was first admitted to the United Nations, William Rusher quipped that it was "a case of loosing a China in the bullshop.”  Such is the first thought that comes to mind in reflection on the latest bit of mischief to issue from the UN, in this case courtesy of that body’s International Telecommunications Union (ITU).

The second thought is of the power of precedents in law and policymaking.  Policywise, precedents can be likened to the engine of a train, the caboose of which is incremental or galloping movement in the same direction.

So the take-away from the vote last week in Dubai by 89 countries, including such freedom-loving regimes as those of China, Russia, Iran, and Venezuela (you know, the usuals), is that it’s just a matter of time before many of those same countries claim the right, under the UN charter, to control the Internet through such things as filtering, identifying users, and surveillance.

Defenders of last week’s vote, like the head of the ITU, disingenuously claim that “The conference was not about Internet control or Internet governance….  And indeed there are no treaty provisions on the Internet.”  The key word here is “treaty,” since tucked away in the appendices, as reported by Ars Technica, is this sentence:

[WCIT-12 resolves to invite member states] to elaborate on their respective positions on international Internet-related technical, development and public-policy issues within the mandate of ITU at various ITU forums including, inter alia, the World Telecommunications/ICT Policy Forum, the Broadband Commission for Digital Development and ITU study groups. 

So for the first time, the precedent has been established that the UN is an appropriate body for the deliberation of policy issues affecting the Internet.  Never mind that this resolution is not binding on those countries, like the United States, which voted against the International Telecommunications Regulations.  The point survives: From this time forward the UN’s ITU will provide cover for those nations that wish to wall their citizens off from the open Internet.

Nor is this the only dangerous precedent to be noted in the context of the WCIT.  As warned two years ago by Ambassador Philip Verveer, the adoption by this country of so-called “net neutrality” regulations itself provides an opportunity for international mischief making.

As Robert McDowell, than whom no other FCC commissioner in memory has been right more often, put it in congressional testimony earlier this month:

Should the FCC’s regulation of Internet network management be overturned by the court, in lieu of resorting to the destructive option of classifying, for the first time, broadband Internet access services as common carriage under Title II, the FCC should revive a concept I proposed nearly five years ago – that is to use the tried and true multi-stakeholder model for resolution of allegations of anti-competitive conduct by Internet service providers….

If we are going to preach the virtues of the multi-stakeholder model at the pending World Conference on International Telecommunications (WCIT) in Dubai, we should practice what we preach.  Not only would the U.S. then harmonize its foreign policy with its domestic policy, but such a course correction would yield better results for consumers as well. 

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

 

Posted on By Patrick Maines

Julius Genachowski and Broadband Billing

Comments made earlier this week by FCC chairman Julius Genachowski have raised hackles at organizations like Free Press and kindred groups.  The occasion was the Cable Show in Boston, and the offending subject was what is called “usage-based billing” – the radical notion that people who use more of a thing should pay more than those who use less.

In a Q&A session with Michael Powell, former FCC chairman and current CEO of the National Cable and Telecommunications Association, Genachowski avowed that there was much to like about broadband providers basing their charges on usage (rather than on a one-size-fits-all basis).

This wasn’t the first time Genachowski had endorsed this practice – it was part of the net neutrality regulations that the FCC promulgated a couple of years ago – but it was enough to provoke the simple folk at Free Press into eruptions of their usual blather.

The last time broadband billing was discussed in this blog (April 2009), the news was Time Warner Cable’s decision, under fire from people and organizations like Free Press, Public Knowledge, and Sen. Charles Schumer, to suspend their trials of this kind of billing in a handful of cities.

As reported at the time, the air was thick with celebration as the “victors” issued triumphant statements on the occasion.  Triumphant no more, they have been reduced, in response to Genachowski’s comments on Tuesday, to broadsides and bromides like this one from Matt Wood, policy director of Free Press: “The data caps being pushed by the biggest cable companies are bad for consumers … and the FCC should be investigating these caps, not endorsing them.”

But enough about broadband billing per se.  The more noteworthy thing about Genachowski’s comment is that this marks at least the third time that he has demonstrated his independence from the louder voices among communications policy outfits.

The first time was with the FCC’s adoption of what came to be called “net neutrality lite,” and the second was when he hired Steve Waldman to head up the agency’s “future of media” report, a document that steered clear of the most intrusive and inappropriate kinds of recommendations that had been proposed for it.

None of this is to say – nor would the gentleman necessarily welcome our saying – that Mr. Genachowski is the very model of what one looks for in an FCC chairman.  Though the net neutrality regulations are much better than what they might have been, better still would be no such regulations at all.

Still, in an environment as divisive as Washington’s, it’s probably a good idea once in a while to step outside of it all and give credit where credit is due.  So props to Julius Genachowski for his embrace of usage-based broadband billing.  ’Tis a fine thing he’s done.

                                     

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

 

Posted on By Patrick Maines

Orts and All

Regulating the ’Net.  Much has been alleged in recent days about the risks to the independence of the Internet were the copyright bills currently before Congress to become law.  As mentioned here and here, the most extravagant of these allegations are flummery of the first water, but copyright issues aside, the ’net is indeed on the cusp of a significant transformation.

Evidence of this can be seen in the actions of the FCC, whether on its own initiative or by its implementation of regulations after passage of legislation into law.  The Commission’s codification of  "net neutrality" rules was the first example of the Internet’s capture.  The action currently underway by the FCC to promulgate regulations re the 21st Century Communications and Video Accessibility Act, a law which, among other things, mandates captioning for online video, is another.

Goes without saying that making online video accessible to the deaf is a nice thing to do, and for many that’s the end of the story.  But people who are familiar with the way laws and regulatory policies evolve know that things like these have a precedential impact in Congress, the courts, and the regulatory agencies, and that very often these precedents are then offered up in justification of other laws or rules that are not so nice.

In any case, the point here is that it’s already too late in the day for people who have an idealistic interest in the Internet to fret the future loss of its independence.  Thanks to the majority at the FCC and/or in Congress, the Internet’s pristine independence has already been lost.

Media Matters.  The organization called Media Matters for America, which exists to demean and (where possible) destroy conservative journalists and organizations like FOX News, has now come out with a contrived accusation against George Will.

The gravamen of MMA’s contrivance is that, as a Board member of a conservative grant-giving group (the Bradley Foundation), Will should be required to mention this connection whenever he writes about or cites the work of any of the groups to which Bradley contributes!

Given that Bradley funds a very large number of conservative think tanks and other enterprises, this would mean, as a practical matter, that Will would have to include this disclosure pretty much all the time since he is, after all, a conservative himself and cites these organizations’ work frequently.

As the Washington Post’s executive editor put it, in reply to a request from MMA for comment: “Is it seriously a surprise to you that George Will quotes experts from conservative think tanks more often than he quotes experts from liberal think tanks?”

What a relief! The latest news is that Keith Olbermann, who is faithfully viewed nightly by at least 16 people, may be staying on at Current TV, a network that captures the imagination of dozens.  

It’s been a close call for the past few days, but as this is being written word is out that Olbermann and management of Current, who have been at loggerheads over something or other, have resolved their differences.  So a country that has been paralyzed with fear that things might not work out can breathe again. What a happy day.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Patrick Maines

Rationalizing Theft: The Technology Lobby’s Attack on Copyright Legislation

The technology crowd’s objections to the copyright protection bills, now moving their way through Congress, put one in mind of H.L. Mencken’s crack that criticism is prejudice made plausible.  This, because that industry’s leaders, scribes, and think tanks uniformly oppose every legislative initiative aimed at protecting copyrighted content, even as they frequently give lip service to the concept .

From the Digital Millennium Copyright Act (DMCA) in the late ’90s – which they fought tooth and nail, but cling to in today’s debates as though it were an uncle come to jail with money for the bail bondsman – to today’s Protect IP and Stop Online Piracy acts (good summaries of which are here and here), the techies profess all sorts of high-minded concerns, but never at the expense, you understand, of their business plans.

Take, for instance, Google, the 800-pound gorilla, inside and outside the Beltway, regarding all things digital.  The company’s executive chairman, Eric Schmidt, claims that attempts to crack down on rogue sites profiting from copyright infringement could set a “disastrous precedent” for freedom of speech, and also that they would encourage more restrictive Internet policies in countries like China.

This is serious stuff, and would be more serious still if (a) it were true, and (b) it issued from a company with any public policy credibility in this regard.  Alas, neither is the case.  Let’s start with the credibility problem first.

The best example of a U.S. policy that really would have (or might still) set a bad precedent regarding repressive regimes abroad is the FCC’s recently concluded Network Neutrality proceeding.  Indeed, in March of last year the U.S. Coordinator for International Communications & Information Policy at the State Department, Philip Verveer, had this to say about the subject at a Media Institute luncheon in Washington: “The net neutrality proceeding is one that could be employed by regimes that don’t agree with our perspectives of essentially avoiding regulation of the Internet … it could be employed as a pretext or as an excuse for undertaking public policy activity that we would disagree with pretty profoundly.”

Though there are those, of whom I’m one, who think the FCC’s subsequently enacted Internet rules, though greatly watered down, still went too far, the more interesting thing to note in this regard is that Google was the leading figure among those lobbying in support of net neutrality.

In the summer of 2006, for instance, Eric Schmidt himself penned a note on Google’s Public Policy Blog that read in part:

The Internet as we know it is facing a serious threat.  There’s a debate heating up in Washington, D.C. on something called “net neutrality” – and it’s a debate that’s so important Google is asking you to get involved.  We’re asking you to take action to protect Internet freedom….

Creativity, innovation, and a free and open marketplace are all at stake in this fight. Please call your representative and let your voice be heard.  

And then there’s the argument, made by Google and lesser apologists of unfettered infringement, that the Protect IP and Stop Online Piracy acts undermine the speech guarantees of the First Amendment.  Whether it’s because they like the sound of the accusation, or because, not knowing any better, they actually believe it, there’s a lot of this nonsense going around the technocracy.

They might be more cautious about making such claims if they read the First Amendment analysis of the Protect IP Act written by the most distinguished First Amendment scholar of our age, Floyd Abrams.  In a 12-page letter sent on May 24 to Senate Judiciary Committee members Leahy, Hatch, and Grassley, Abrams lays out a compelling argument that the Act is consistent with the First Amendment, and concludes with these observations:

Among a range of objections, two core critiques stand out.  First, there is a recurring argument that the United States would be less credible in its criticisms of nations that egregiously violate the civil liberties of their citizens if Congress cracks down on rogue websites.  Second, there is the vaguer notion that stealing is somehow less offensive when carried out online….

I disagree.  Copyright violations are not protected by the First Amendment.  Entities “dedicated to infringing activities” are not engaging in speech that any civilized, let alone freedom-oriented nation protects.  That these infringing activities occur on the Internet makes them not less, but more harmful.  The notion that by combating such acts through legislation, the United States would compromise its role as the world leader in advancing a free and universal Internet seems to me insupportable.  As a matter of both constitutional law and public policy, the United States must remain committed to defending both the right to speak and the ability to protect one’s intellectual creations.  This legislation does not impair or overcome the constitutional right to engage in speech; it protects creators of speech, as Congress has since this Nation was founded, by combating its theft.

Abrams’ last point is especially noteworthy.  Not only is the current concern with copyright protection  nothing new, it is in fact as old as the country itself.  Reading the overwrought diatribes of the tech community one might get a different impression, but in fact it’s all there in black and white, among the “enumerated powers” in Article 1, Section 8 of the U.S. Constitution.

For those who have forgotten, or never knew, this so-called copyright clause empowers Congress “To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.”

Language and wisdom, that is to say, that is not the contemporary creation of the heads of the motion picture studios, but of the Founding Fathers more than 200 years ago.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Patrick Maines

‘Net Neutrality’ Goes To Court (Again)

For the most part, objections to the FCC’s new “network neutrality rules” – codified in December to preserve a “free and open” Internet despite a lack of evidence that anything less was the ongoing condition already – have centered on the probable negative impact on investment in the broadband space, and on the ability of Internet service providers (ISPs) to manage their networks efficiently.

And why not?  After all, this is a time when even President Obama is recommending regulatory reform, and the net neutrality regulations impose substantial new reporting obligations, even as they fail to provide a clear understanding of what network management practices are acceptable.

Important as these concerns are, however, there is another problem with these rules, and that is the degree to which they conflict with the First Amendment.  Though this argument has been propounded by such notables as Laurence Tribe and FCC Commissioner Robert McDowell (who dissented from the FCC’s Order), it has gotten very little coverage in news or opinion stories.

But that may change if a lawsuit filed in federal court last month by Verizon survives the FCC’s motion to dismiss.  Indeed, if this case were to reach the Supreme Court, it might provide yet another example, a la Citizens United, of laws or regulations undone because of their constitutional infirmities.

So what are the First Amendment problems with the net neutrality regulations?  Broadly speaking, there are two: The regulations fail to recognize that broadband ISPs are speakers for First Amendment purposes; and they interject the government into private decisions about speech.

Commissioner McDowell elaborated on this first point in some detail in delivering his dissenting opinion.  “I question,” he said, “the Order’s breezy assertion that broadband ISPs perform no editorial function worthy of constitutional recognition.”

It is undisputed that broadband ISPs merit First Amendment protection when using their own platforms to provide multichannel video programming services and similar offerings.  The Order acknowledges as much but simply asserts that the new regulations will leave broadband ISPs sufficient room to speak in this fashion – unless, of course, hints elsewhere in the document concerning capacity usage come to pass.  So while the Order concedes, as it must, that network management regulation could well be subject to heightened First Amendment review, it disregards the most significant hurdle posed by even the intermediate scrutiny standard.  The Order devotes all its sparse discussion to the first prong of the intermediate scrutiny test, the “substantial” government interest, while wholly failing to address the second and typically most difficult prong for the government to satisfy: demonstrating that the regulatory means chosen does not “burden substantially more speech than is necessary.”

In comments submitted to the FCC by Time Warner Cable, Harvard constitutional scholar Laurence Tribe, who served as a judicial adviser to President Obama’s election campaign, made a number of kindred observations about net neutrality and the Constitution.  Two paragraphs, in particular, are of special note:

Net neutrality proposals rest on the mistaken premise that the Constitution gives the government a role in ensuring that the voices of various speakers receive equivalent attention and that audiences receive equal access to all speakers.  In fact, a central purpose of the First Amendment is to prevent the government from making just such choices about private speech, including decisions about what amount of any given kind of speech is optimal.  Inconsistent with that purpose is any notion that government might properly limit private decisions, such as those by BSPs (broadband service providers) regarding the control of their networks, in order to widen the access of some to the avenues of speech or to swell the aggregate amount of speech beyond whatever would result from the decisions of private speakers enjoying “absolute freedom from First Amendment constraints.”…

Many net neutrality proponents argue that BSPs are not actually engaging in speech that implicates the First Amendment.  But they are incorrect.  The Constitution applies equally even outside traditional print or electronic media, so that, for example, the government cannot require an individual to open his doors and turn his home into a forum for protesters.  Further, like a newspaper, a BSP has a limited capacity to distribute information and accordingly enjoys the right to decide how to apportion that space.  And as noted, BSPs make decisions about the delivery of particular content as they continue to innovate in the products, services, and business models they employ.

Quite apart from net neutrality’s First Amendment problems in the United States, there is an international aspect that is also troubling to those who recognize the importance of free speech around the world.
 
In remarks delivered in Washington last year to The Media Institute, the State Department’s Coordinator for International Communications and Information Policy, Ambassador Philip Verveer, said the following: “The net neutrality proceeding is one that could be employed by regimes that don’t agree with our perspectives of essentially avoiding regulation of the Internet … it could be employed as a pretext or as an excuse for undertaking public policy activity that we would disagree with pretty profoundly….”

For his candor, Ambassador Verveer received criticism from net neutrality proponents inside and outside the administration, but his point survives. It’s really not such a difficult concept to apprehend: When governments acquire regulatory authority over media and communications they are that much closer to being able to control the content and distribution of those media and communications, however benign the rationale for their regulatory authority may seem.

As mentioned at the outset, the First Amendment aspects of net neutrality have gone largely unreported, and there is little doubt that most of the briefs filed in support of Verizon’s case will accentuate other problems with the regulations.  But for those of us who follow free speech issues closely, the constitutional baggage is a thing of great interest and possibly great consequence.

                                           
The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Patrick Maines

Funding Net Neutrality … And Worse

There are so many things wrong with the FCC’s codified “net neutrality” rules, the kindest thing one can say about those responsible is that they were all born yesterday.  But criticism of this monstrosity abounds already, and given the potential for it to be wholly or partly undone by the courts or Congress, no further discussion of its many flaws is either timely or necessary.

Just before Christmas, however, John Fund wrote a piece in the Wall Street Journal that ought to be required reading for every media and communications mogul in America.  Titled “The Net Neutrality Coup,” Fund recounts the role played by a handful of large grant-giving foundations, and the beneficiaries of their largesse (“paid clappers,” in Ted Turner’s immortal phrase) in the promotion of this cynical creation of the “media reform” movement.

Perhaps the greatest value in Fund’s piece is his finding that most of those foundations that provided the lion’s share of funding for net neutrality were also among the biggest sources of funding for the earlier (and even worse) mischief, “campaign finance reform.”

Fund identifies by name a total of six grant-giving foundations and four operating organizations.  They are, among the former: the Pew Charitable Trusts, the Schumann Center for Media and Democracy, the Joyce Foundation, George Soros’s Open Society Institute, the Ford Foundation, and the John and Catherine MacArthur Foundation.

The four operating groups are Free Press, Public Knowledge, Harvard’s Berkman Center for Internet and Society, and the New America Foundation.  What all of these groups – funders and recipients alike – share in common is that, to varying degrees, they are all liberal-leaning, or “progressive,” as they yearn to be called nowadays.

Missing from this list is another billion-dollar grant-giving group – the Knight Foundation – which, through the Knight Commission, has itself peddled  net neutrality, along with such pap as the need for greater funding of public broadcasting, and tax credits for investigative journalism.  Though we won’t know for sure until its report is issued, the FCC appears to have adopted the Knight Commission’s recommendations as a kind of blueprint in its approach to the commission’s so-called Future of Media initiative.

The reason all of this should be of the greatest importance to everyone, but particularly to titans of media and communications, is simple: The communications policy views of grant-making groups like the Open Society Institute and the Ford Foundation (not to mention Free Press) are inimical to the well being of media and communications companies.

It’s not entirely clear why the “progressive” moneybags’ lavish spending has not incited individuals with different political views, many of whom have amassed great wealth in the media and communications business, to fund non-profit organizations with more pro-business communications policy views.  Perhaps it’s because some of them, having gotten theirs and now in retirement, no longer care much what happens to the industry of which they were once a part.  Or maybe it’s because many don’t think of themselves, or want others to think of them, as “conservatives,” whatever that means in the context of communications policymaking.

But a likelier explanation is that many fail to understand what a threat to their own and their industry’s welfare some of these groups actually pose.  Perhaps because businessmen are very good at lobbying, and understand the ins and outs of PACs, they don’t see the need to engage their critics in the worlds of academia or think tankery.

It’s a mistake, that, because in truth it’s the people who deal in ideas – intellectuals and artists, activists and policy wonks – who are often the engines in the development of policy issues in which legislators and regulators are but the last people to board the train.  Witness, for instance, net neutrality.

As John Fund puts it, in the conclusion of his WSJ piece, “So the ‘media reform’ movement paid for research that backed its views, paid activists to promote the research, saw its allies installed in the FCC and other key agencies, and paid for the FCC research that evaluated the research they had already paid for.  Now they have their policy.  That’s quite a coup.”

                                                
The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.