FCC's O'Rielly Keeps Claiming, With Zero Evidence, That Community Broadband Is An 'Ominous' Threat To Free Speech

from the misdirection dept

So back in October, we noted how FCC Commissioner Mike O’Rielly attended an event where he falsely claimed that towns and cities that decide to build their own broadband networks (usually due to market failure) were somehow engaged in an “ominous” assault on free speech. The only “evidence” O’Rielly provided was that community ISPs include language in their terms of service preventing users from being hateful shits online, the same exact language you’ll find in the TOS’ from any number of private ISPs, from Comcast to AT&T.

There’s absolutely no evidence that any of the 750 towns and cities that have tinkered with this idea ever trampled anybody’s free speech rights.

Yet after being criticized by several press outlets (including this one), O’Rielly apparently decided his best bet would be to… double down on his false claims. In a new blog post over at the FCC website, O’Rielly again tries to insist that community broadband is a giant threat to free speech, but this time he attempts to vastly expand his argument in a bid to make it sound more logical. The tap dancing around his lack of evidence in his original claim is particularly amusing:

Bizarrely, my critics further responded that I had failed to provide historical ?evidence? of First Amendment mischief by muni networks. Perhaps they were confused about how a constitutional violation works. A state action or law can violate the First Amendment as applied or on its face. In the case of the latter, the law or act is always unconstitutional, and in the case of the former, it is only unconstitutional to the extent of a particular application. My argument was not based on as-applied historical instances of censorship, but on facial grounds. That is, certain terms in the muni broadband codes I cited facially violate the First Amendment.

That’s a misdirection and a dodge, though putting evidence in quotes is a nice touch.

O’Rielly’s right on one point: some fully government-owned community ISPs could face legal challenge for trying, as government operators, to censor hate speech via mouse print. As government operators, community ISPs actually have a greater Constitutional burden to avoid censoring content online than their private counterparts (a major reason, you’ll note, that none have actually tried). That said, as local operations that have to be voter approved, community ISPs also have more direct accountability to the communities they serve. Certainly more than a company like Comcast or AT&T.

O’Rielly’s problem is he then takes his core tenet to make a false claim: that because some community ISP mouse print isn’t legally sound, allowing community broadband to exist threatens free speech.

Recall, O’Rielly’s original speech argued that these ISPs have “have engaged in significant First Amendment mischief.” And again, that never happened. It might also be worth noting that one of the ISPs O’Rielly singled out was Chattanooga’s EPB, the government utility and broadband ISP Consumer Reports just rated the best broadband provider in America. Throughout eighteen paragraphs, O’Rielly still can’t provide a single instance of hard evidence to support his original claim.

There’s also a lot of components to the community broadband conversation O’Rielly’s rambling post makes it clear he’d rather not talk about.

The biggest thing O’Rielly would prefer people not understand is that community broadband is an organic response to market failure. It’s a group of angry voters, after decades of being ignored by private ISPs like Comcast, deciding to either build a broadband network themselves, or strike a public private partnership with a company like Tucows or some other private operator. Obviously giant, entrenched incumbent ISPs have never much liked this threat of added competition. Neither have the lawmakers and politicians that generally act as a rubber stamp to those interests.

As such, demonizing such operations as “government run amok” — as opposed to real human beings with legitimate grievances expressing their democratic rights — has long been the fashion trend among folks like O’Rielly. And you certainly shouldn’t point out to O’Rielly that studies show such community-run networks tend to offer better service, lower prices, and more transparency in billing than most incumbent ISPs. Dismissing this entire trend as “a perverse form of socialism” shows a painful misunderstanding of what’s actually happening.

And the biggest thing O’Rielly would rather nobody talk about is his and Ajit Pai’s proposed “solution” to this “problem”: protectionism. For the better part of two decades, ISPs have literally written and purchased more than 21 state laws that either outright ban, or greatly hinder, the ability for towns and cities to build their own networks or strike creative broadband solutions like public/private networks. Both Pai and O’Rielly have breathlessly supported such laws, in pretty stark contrast to traditional Conservative claims of adoring “state rights” and disliking unnecessary regulatory market intervention.

Again, O’Rielly’s just engaged in fear mongering in a bid to scare folks away from an organic, democratic response to decades of sketchy broadband availability and limited competition. Communities aren’t getting into the broadband business because they think it’s fucking fun, they’re doing so because of market failure. If ISPs want to stop the rising tide of community broadband, the solution is simple: offer better, cheaper, more widely available broadband. They don’t want to do that, so instead you get ample misdirection from the issue at hand, and a bizarre demonization of folks who are actually trying to fix the problem.

Filed Under: , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “FCC's O'Rielly Keeps Claiming, With Zero Evidence, That Community Broadband Is An 'Ominous' Threat To Free Speech”

Subscribe: RSS Leave a comment
Toom1275 (profile) says:

And the biggest thing O’Rielly would rather nobody talk about is his and Ajit Pai’s proposed "solution" to this "problem": protectionism.

FCC BDAC‘s working draft of their give-companies-all-the-things rules:
(this section not approved… yet)

[bold added]

Public-Private Models. Municipal officials in Rural municipalities shall evaluate
at least five options for providing Broadband services for feasibility and
sustainability. These are, in order of preference:

4.1. Private-led Investment with Public Assistance. In which a privately-
owned entity constructs, maintains, and operates the Broadband
network, and the municipality assists by facilitating permitting, granting,
and customer sign-ups and ensures that the Broadband service is not
discriminatory in its service standards or areas served.

4.2. Balanced Public-Private Partnerships. In which a Rural municipality provides all or some of the necessary capital funds to construct the
network, and one selected service provider is granted an exclusive
franchise agreement
for a finite period of time sufficient for the
Broadband provider to recover its capital investment. At the end of that
timeline, the system is open access with the incumbent Broadband
provider retaining responsibility for system maintenance and operations.

4.3. Public Assets – Open Access. In which one or more Broadband providers
contract for access
to a community-owned infrastructure that is
developed through a local improvement district, fee for services,
donations, grants, and/or other non-tax revenue sources.

4.4. Public-Led Contracting. In which the community serves as the lead entity
and Broadband provider by constructing, financing, and owning the
network infrastructure with a private sector partner providing crucial
network operations or other duties specifically negotiated.

4.5. Fully Public Funded and Operated Networks. In which the Rural
municipality designs, builds, operates, and manages a community-wide
ISP, and the Rural municipality is responsible for all aspects of the
network, including customer support and installations.

  1. Required Evaluation.

5.1. Before initiating the planning or deployment of a Fully Public Funded
and Operated Network or investing or engaging in Public-Led
Contracting, a Rural municipality shall design and implement a process
through which to solicit and accept proposals to deploy a Broadband
network from private Communications Providers.

If, and only if, the Rural municipality receives no reasonable and credible
proposal from a private Communications Provider to build a Broadband
network and otherwise determines that none of the first three options in
Section 4 of this Article are viable and if, and only if, the Rural
municipality makes a positive determination of costs, feasibility,
sustainability, and that the action is in the interest of the general public
may the Rural municipality invest in a Fully Public Funded and Operated
Network and/or engage in Public-Led Contracting.

  1. Any facilities constructed or purchased pursuant to Section 4.4 or 4.5 of this
    Article must be made available to private entities
    on a non-discriminatory basis
    under the same terms and conditions as for the facilities listed in Article 9.

What these read like:

(5.1)City must consider Comcasts as their first preference for internet

Option 1: Let Comcasts do whatever they want

Option 2: Let Comcasts do whatever they want, and the city pays for it

Option 3: Does the city already have a working network? Let Comcasts get a piece of that.

Option 4: No infrastructure? City does most of the work but has to let Comcasts get involved. (and then let Comcasts in further)

Option 5: City does all the cost and work, Comcasts privatize the profit

James Burkhardt (profile) says:

Re: Re:

Some of the later options seem, at least on the surface, to be exactly the kind of public/private partnership generally recommended.

4.4 provides ownership to the city/county/et al. And seemingly would provide for competitive ISP access. If read to allow only one private partner to deliver crucial network operations, it loses its value, but read properly, it could allow for public ownership of broadband infrastructure, and allow for ISP competition over that infrastructure.

Without citing Article 9, your highlighting of 5.1.1 seems strange. However, allowance of private entities to provide access over Publicly funded infrastructure on a FRAND basis seems absolutely fine. If Private ISPs provide so much better service and pricing, than the public entity, than that should be of benefit to the public.

ECA (profile) says:

Basics of democracy

At this time..
A room full of 3 year olds debating whats for Lunch..

The Past..
40 year olds discussing for a long time 1 subject that fails to solve what happened..

Open democracy in other nations, the USA has created or Pushed for…
Men throwing shoes at each other.. For reasons.

Love the last one. But its what happens to the people, in the end. Do we like what they are doing? And what is OUR recourse? sit and watch? recall the idiots?? Shoot them all and let god decide.

I just want a truth detector and Fact Checkers for everything that they say…A large Board up front to SHOW all the rest, the possibility or truth and abit of logic..

That One Guy (profile) says:

Re: Reputations matter when people have a choice

Reading the pros vs cons they listed for each option it looks like Comcast’s actions and reputation came back to bite them in a big way, in this case costing them a half a million contract and monopoly position in the town.

From the cons section for going with Comcast:

-Monopoly service provider
-Uses older, slower HFC [hybrid fiber-coaxial] technology
-Limited control over network buildout
-No control over future pricing
Customer service record
Speed caps and potential to slow down competitive content (over­-the-­top TV)

And then the pros for the community broadband section:

100% fiber-to-the-home technology (faster than HFC technology)
-Town-owned and controlled
At take rates above 40% generates revenue that will reduce the tax burden
Not­-for-­profit to keep prices as low as possible
Transparent billing and marketing
No extra taxes/fees except government-mandated phone taxes
Same speed for all subscribers and content

With even a small town willing to go with an option costing them an extra million it’s no wonder companies like Comcast are so desperate to buy state laws preventing community broadband, with their cheerleaders in the FCC and elsewhere supporting such laws: they’ve made themselves so toxic people are willing to pay, and pay dearly, if it means not paying them.

Gary (profile) says:

Free Dogma Here

Hey, we need the FCC to protect us from these terrible community based options – they are an affront to the Free Market and all Libertarian dogma.
Once the FCC shuts down community based efforts we can go back to the honest capitalist service provided by Century Link:


That One Guy (profile) says:

True... if you change the definitions around

Saying community broadband ‘threatens free speech’ is laughably wrong when taken at face value, however if you swap out ‘free speech’ for ‘corporate profits’ then it makes perfect sense(both the argument and why he’s making it), because unlike free speech competition absolutely does threaten that.

Dan (profile) says:

Missing the point

You seem to have fundamentally missed the point of the portion you quoted–he’s saying the relevant portions of the subscriber agreements are unconstitutional on their face, in which case there’s no need for evidence of their being enforced in an unconstitutional way. Consider a more obvious example:

  • TOS include a provision prohibiting a subscriber from criticizing the mayor or city council. When correctly advised that this provision is blatantly unconstitutional, the community ISP says, "oh, don’t worry, we’ll never enforce that." They don’t (so far), so there’s no evidence of their having done so. There isn’t even any evidence of any chilling effect. Unconstitutional? Presuming the community ISP is treated as a state actor, yes. Clear enough? No? Then let’s try an even more obvious example.

  • City enacts an ordinance prohibiting, by name, practice of Islam within the city limits. Again, after they’re correctly advised that the law is completely unconstitutional, they swear they won’t enforce it, and in fact they never do. Is it still unconstitutional? Of course it is.

O’Rielly is saying that a "hate speech" provision in the TOS of a community ISP is facially unconstitutional. That position relies on two legal questions, the answers to which I’m not sure are established:

  • Would a community ISP be treated as a state actor for First Amendment purposes? I don’t know if this question has been litigated yet. If owned or operated by the local government, I’d think the answer is probably yes. But I expect there are a number of possible arrangements other than direct ownership or operation by the local government, in which case the question could get much more murky.

  • May a state actor prohibit "hate speech" in TOS for Internet service? Don’t think this one is settled either, but I’m leaning toward "no".

If the answers to both of these questions are "yes", then he’s right. But whether he’s right or not is not something that would be shown by evidence. Evidence is used to establish facts; his claim is one of law.

That One Guy (profile) says:

Re: Selective concern

You seem to have fundamentally missed the point of the portion you quoted–he’s saying the relevant portions of the subscriber agreements are unconstitutional on their face, in which case there’s no need for evidence of their being enforced in an unconstitutional way.

Thing is, if he’s really concerned about ‘free speech’ then the fact that a government(local or otherwise) run ISP can violate the first where a private company can not because they aren’t government actors isn’t really relevant. If the terms he’s talking about really are a problem for free speech then he should be going after both private companies and community broadband as threats, as both have the same impact on free speech even if one isn’t violating the first amendment.

Strangely enough however his concern with free speech and the threats to it seem rather one-sided, where only community broadband is a problem, despite the fact that the TOS’s are basically the same.

If he wants to shift to a more honest argument by pointing out that community broadband, as a government run service can run into first amendment issues such that it’s important to make sure the TOS’ they offer are consititionally compliant then great. Until then, so long as he’s hammering on the ‘free speech’ angle and not going after the private companies as threats just as great if not greater(good luck getting a company like Comcast to pay attention to free speech concerns like you can to a locally owned ISP) he’s being dishonest and/or hypocritical, making use of fake concerns to bolster his position/attack his opponents.

(As a semi-related aside, I found it rather funny that one of the examples he used as threats, Chattanooga, is home to EPB Broadband, an ISP which was, as of the writing of an older Motherboard article the highest ranked ISP in the country. Some threat.)

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »