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. identicon
    Anonymous Coward, 17 Dec 2018 @ 10:56am

    People tend to see in others qualities that they themselves possess. This is known as projection. It should be no surprise that the dominant ISPs think that local coop broadband might engage in filtering and censorship.

    reply to this | link to this | view in thread ]

  2. identicon
    freakanatcha, 17 Dec 2018 @ 11:04am

    community broadband

    I'll bet that O'Rielly guy is fine with killing net neutrality so Comcast can decide what you see and what you don't.

    reply to this | link to this | view in thread ]

  3. 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

    reply to this | link to this | view in thread ]

  4. icon
    ECA (profile), 17 Dec 2018 @ 11:54am

    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..

    reply to this | link to this | view in thread ]

  5. icon
    James Burkhardt (profile), 17 Dec 2018 @ 12:11pm


    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.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 17 Dec 2018 @ 12:49pm

    this is the sort of thing that happens when cunts are given high, influential positions, but know nothing except what certain others with self interest spout!

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 17 Dec 2018 @ 12:55pm

    Based on the Citizens United ruling, money is free speech. I believe that O'Rielly is just trying to protect the free speech of Comcast and AT&T.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 17 Dec 2018 @ 1:11pm

    Sometime people will pay a premium to avoid Comcast. Comcast rejected by small town even though it will cost them more to keep Comcast Away.

    reply to this | link to this | view in thread ]

  9. icon
    Gary (profile), 17 Dec 2018 @ 1:45pm

    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:
    https://arstechnica.com/tech-policy/2018/12/centurylink-blocks-internet-access-falsely-claims-s tate-law-required-it/


    reply to this | link to this | view in thread ]

  10. icon
    That One Guy (profile), 17 Dec 2018 @ 1:46pm

    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.

    reply to this | link to this | view in thread ]

  11. identicon
    Glenn, 17 Dec 2018 @ 2:22pm

    Translation: Free speech [for "them"] is a threat to free speech [for me, aka "us"]. Equality is always a problem for those who feel inadequate.

    reply to this | link to this | view in thread ]

  12. icon
    Thad (profile), 17 Dec 2018 @ 3:03pm


    It will cost them more upfront to keep Comcast away. It will probably save money in the long run.

    reply to this | link to this | view in thread ]

  13. icon
    That One Guy (profile), 17 Dec 2018 @ 3:37pm

    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.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 17 Dec 2018 @ 3:53pm


    Comcast is now sending out the troops door to door arguing with anyone who does not have xfinity. These Comcast people are getting as bad as the roofing people with their orange vests who go door to door after the smallest little hail storm.

    reply to this | link to this | view in thread ]

  15. icon
    surfer (profile), 17 Dec 2018 @ 4:45pm

    Re: True... if you change the definitions around

    Saying community broadband 'threatens free speech' is laughably wrong when taken at face value...

    you are true in this statement... but you really gotta look at the big picture, and its not a threat to free speech... its all about control..

    reply to this | link to this | view in thread ]

  16. icon
    Dan (profile), 17 Dec 2018 @ 8:34pm

    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.

    reply to this | link to this | view in thread ]

  17. icon
    That One Guy (profile), 17 Dec 2018 @ 10:15pm

    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.)

    reply to this | link to this | view in thread ]

  18. identicon
    Canuck, 18 Dec 2018 @ 6:50am


    Bullshit - they're just telling whatever lies they think they can get away with.

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, 18 Dec 2018 @ 7:34am

    Re: Projection

    I think you are both right.

    Not only do they project upon others those despised traits within themselves they deny but also they use whatever is within reach to spin their alternative facts.

    reply to this | link to this | view in thread ]

  20. icon
    Ed (profile), 18 Dec 2018 @ 9:00am

    O'Reilly must be sharing Marsha Blackburn's kneepads and chin wipes.

    reply to this | link to this | view in thread ]

  21. identicon
    freakanatcha, 18 Dec 2018 @ 8:38pm

    Re: Re:

    I suspect you will wind up with the kind of public/private partnership similar to sports stadiums, where taxpayers spend millions of dollars for the benefit of billionaire team owners.

    reply to this | link to this | view in thread ]

  22. identicon
    Anonymous Coward, 28 Jan 2020 @ 9:37am

    A disease in every letter

    I looked up constitutional violation and my computer crashed becuase AT&T just kept popping up.

    reply to this | link to this | view in thread ]

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