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.

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Filed Under: 1st amendment, fcc, free speech, mike o'rielly, muni broadband, municipal broadband

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  1. icon
    Toom1275 (profile), 17 Dec 2018 @ 11:17am

    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: https://www.fcc.gov/sites/default/files/bdac-12-0607-2018-model-code-states-discussion-doc.pd f (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

    (4) 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

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