Easter Sunday and Title II

by Mike Wendy on April 16, 2015

When I was growing up, we had only one choice of a phone provider. The Communications Act of 1934 and its Title II, along with state law, mandated that. No others were allowed. Even inside wiring and customer premises equipment were locked up by the utility laws, preventing competition.

Fast forward to last week. The shot below is of an AT&T worker repairing broadband service to my brother-in-law’s home in Miami…

…On Easter Sunday.

An AT&T lineman working on Easter Sunday in Miami - evidence of a vibrant market, but one which will be hampered by the FCC's new "Mother-may_I?" Title II regulatory regime.

An AT&T lineman working on Easter Sunday in Miami.  Title II threatens this competitive response (and others) to the evolving and fickle demands of the vibrant broadband marketplace.

I never recall that happening under the old Title II regime.


Because, as a state-sanctioned utility that did not face competition, there was no incentive for our phone provider to do more than the basic 9-to-5 stuff.

I spoke with the AT&T technician after he repaired the line, and he told me that he and his team work 365 days a year.

All year long. Holidays included. That’s due to competition from a multitude of players and platforms.

On June 12th the marketplace’s competitive dynamic will begin to change, if subtly at first. On that day, the FCC will place Internet services formally under Title II (and more) authority, transforming a market once guided only by light regulation into Title II’s “Mother-may-I?” utility regulation regime.

Sure, it’s likely that that lineman on the pole will still be up there (in a figurative sense) 365 days a year. At least for the time being. But, the risky investment and innovation, especially at the margins, will suffer immediately. The ecosystem – from the core, to the edge, and all who depend on that symbiosis – will be lesser off as a result.

How do I know this? Well, let me put it to you this way: When did anyone look to their public utilities like water, gas and electric and say, “Gosh, these services represent the apogee of innovation, nimbleness and competition. America should be more like that!”

Exactly no one. And there’s a good reason. Because those systems – built on utility regulation – aren’t designed to do that.

Though the President, through his “independent” FCC, anachronistically believe there’s a lot to gain through ossified utility regulation “policing” (thwarting) the most vibrant sector of our economy, the rest of us should be calling Congress and urging our representatives to reign them in before they can make the Internet about as exciting and innovative as our water, gas or electric utilities.

Title II must not mean that Easter service be monopolized by religion only. But it will if the President’s plan is not stopped.


The following statement may be attributed to Mike Wendy, President of MediaFreedom.org:

Mt. Vernon, VA, April 13, 2015 – Today, the FCC published its 400-page Net Neutrality law in the Federal Register, meaning that it will go into effect in 60 days unless a court grants an injunction. The season of suits now begins in earnest, as well it should. MediaFreedom will help in these efforts, believing, in particular, that the law is an unconstitutional abridgment of free speech in that it both censors all Internet actors, and it compels certain types of government-approved speech that broadband access providers might otherwise not choose to speak or publish.

As a threshold matter, the Net Neutrality Order is government action imposed on private communications companies, which prevents those companies from choosing how to speak, communicate and associate as they see fit. This necessarily implicates the First Amendment and its clear proscription against such government activity.

To this end, the FCC’s rule bans all Internet actors from freely developing and publishing speech and communications via paid prioritization. It is a naked prior restraint. Such restraints represent censorship in its most obvious and repulsive form. The agency’s rule restrains players before they can even get their communications heard, based almost entirely on the agency’s fact-less judgment that such associations and speech mostly harm consumers. This predictive and blatantly faulty rationale does not satisfy the strict rigors of the First Amendment. Moreover, the law’s paid prioritization ban fails the Communications Act’s own prohibition of censorship, written clearly and unambiguously into the Act’s text at Section 326.

The Order also illegally promotes content-based viewpoint, meaning its constitutionality must be judged on exacting strict scrutiny grounds. Instead of letting communications companies decide what type of speech they want to publish like a newspaper, it treats broadband access providers as essentially broadcast outlets, which have always had far lesser First Amendment rights. In this regard, the Order is replete with “justifications” to ensure that Internet speech is sufficiently local, diverse, civic-oriented, robust politically, level, fair, and gender and sexuality-protective, among other favored content goals. Each of these areas (and more) carry with them content-based values and prerogatives that the government requires / licenses broadband providers to carry. Though this content may be desirable for society to have, the government lacks a compelling interest to force feed that content through private actors to the American public. The marketplace is crowded with other speech outlets / media which allow for such expression. It surely is the least restrictive means to promote the government’s favored content instead of expansive and heavy-handed regulation.

On the whole, the FCC’s Order makes it clear that the Commission has moved back into last century’s failed prior restraint and content control regimes to “guide” private development, creation and dissemination of free expression. This framework is not accidental – it is one built to maximize control of a powerful content medium that, in private hands, threatens the hegemony of the government to shape mass media and communications to its liking. It does so with an eye toward promoting “good” government-approved content over all others. In this regard, the Order protects and promotes primarily government interests, not private ones. As with broadcasting, the restrictions will become more profound over time, molesting all forms of content, and resulting in requirements concerning such issues as political transparency, advertising, privacy, security, public safety, food and drugs, children’s programming, “hate” or other “undesirable” speech, and others “to protect the Internet.”

The FCC’s Net Neutrality law turns the First Amendment on its head, contravening its simple 45 words, which were designed to prevent exactly what the FCC has attempted here. Thankfully, the law will fail as a result of these and its other numerous infirmities. Hopefully, the courts will expedite this process for consumers and society.



Imagine if, because you didn’t choose to speak, or were prevented in some manner from doing so, you lost that right altogether?

That’s what the Net Neutrality rule does to broadband providers and those they may have partnered with to provide new content / expressive offerings to consumers. Though broadband providers have long-wanted to offer these special “priority” arrangements, the Order effectively bans them.

Notes the FCC at paragraphs 546 and 547 of its Order:

…[We] find that when broadband providers offer broadband Internet access services, they act as conduits for the speech of others, not as speakers themselves (para 546)…Claiming free speech protections under the First Amendment necessarily involves demonstrating status as a speaker—absent speech, such rights do not attach (para 547)…”

In the FCC’s eyes, it sees no inherently expressive activity or an intent to convey a specific message. So, even though broadband providers are communications companies, the FCC will only allow them to communicate to the extent the agency, in its self-serving way, sees fit.

No megaphone for you, broadband providers,” says the FCC.

Think there’s a (strict scrutiny) First Amendment issue there? (Um, yes)

The irony here is that the President recently witnessed an urge to compel citizens to vote because they simply weren’t doing so to his (political party’s) satisfaction. No, those who don’t vote wouldn’t lose that right. But, he wants to force citizens to speak in a manner he deems appropriate, not what the communicator / voter does.

That authoritarian streak is alive and well in the Order.

Although I’ll likely be writing more about this in the coming weeks, months, years and decades (seriously), I wanted to give you a good idea of what this means in a practical sense. Former FCC Commissioner Michael Copps is perhaps one of the most outspoken commenters on this matter. Put simply, he feels the Internet must be guided by the FCC’s prosecution of the public interest. And, that looks an awful lot like broadcast-oriented content control.

At 3:20 into this 2010 video, Copps outlines exactly what that is:

…And perhaps all [broadcast] media one day is going to migrate over to the Internet. And [all Americans] have a vested public interest in making make sure [civic dialogue is] protected on the Internet. This is a tough question for America right now. Here you’ve got this dynamic technology that thrives on openness, that thrives on innovation and all that. And, you don’t want to regulate or artificially limit it. But, at the end of the day, if that’s where everything is moving; if that’s where our national dialogue, our civic dialogue is moving; if that’s how we’re going to educate ourselves and all, there’s a public interest component to that. How do you make that happen in a global environment?  The Internet is international and runs so much differently. But still, at the end of the day, I think you have come to the conclusion that we have a public interest in how this is used to inform and serve the American people.”

Former FCC Commissioner and "public interest" content policeman, Michal Copps at the FCC on February 26 - the days the agency took over the Internet.

Former FCC Commissioner and “public interest” content policeman, Michael Copps, at the FCC on February 26, 2015 – the day the agency took over the Internet via Net Neutrality.

Confirming that the FCC is moving in this public interest, content control direction, an elated Copps exclaimed when the FCC voted to mandate Net Neutrality on February 26th:

The FCC has never done a better job of serving the public interest [than with the FCC’s new Net Neutrality rule]…”

At the end of the day (as Copps is wont to say), that means “the Internet” will be told by the FCC (and other governmental bodies) what plays and what doesn’t. In others words, if Uncle Sam wants your opinion, he’s gonna’ give it to you, First Amendment be damned.

More to come…


The following statement may be attributed to Mike Wendy, President of MediaFreedom.org:

Mt. Vernon, VA, March 12, 2015 - The President’s 400-page Net Neutrality Order issued by his “independent” FCC today represents the single most anti-speech and information law since Woodrow Wilson’s takeover of the telephone networks in 1918. If the rules are allowed to go into effect, they will gravely harm consumers and society.

The Administration, FCC and other organs of our government consider the medium to be akin to broadcasting, and then some – like a guitar amp turned to “11.” As Tom Wheeler has been wont to say, “The Internet is the most powerful and pervasive platform on the planet. It’s simply too important to be left without rules and without a referee on the field.”

The new law reflects the fact that speech and information control are baked into the core of the FCC’s regulatory DNA. That genetic makeup drives the vague public interest standard underlying most grants of authority from the Commission. It has allowed the Commission to impose content controls on broadcasters, based on notions of spectrum scarcity, and the pervasiveness, ubiquity, ease of access and general importance of the medium to Americans. And, it enables the FCC to determine market pricing and other information that guides the supply of communications technologies and services to consumers.

That anti-free speech and information DNA is now being grafted onto the Internet.

As the President / FCC note time and again in the Order, the core goal of the law is to protect and promote political and other societally-valuable speech on the Internet. It does so by both compelling speech and association, and banning speech and association. In this regard, it prohibits so-called throttling, blocking and prioritization, meaning networks must allow all speech from all parties all the time – even if that is not desired by the privately owned networks. And, networks may not “unreasonably” discriminate or differentiate their offerings with third-parties or affiliates, in a practical sense both denying Americans of new and innovative choices, as well as constricting important information required by the marketplace to meet consumer demand.

Moreover, the Order has a catch-all, case-by-case approach to the provision of new services, which will judge among other factors whether certain “[p]ractices that threaten the use of the Internet as a platform for free expression would likely unreasonably interfere with or unreasonably disadvantage consumers’ and edge providers’ ability to use BIAS to communicate with each other, thereby causing harm to that ability.” (Emphasis added) The FCC’s past makes it hard to see how this new “I-know-it-when-I-see-it” standard could comport with the First Amendment. In any event, it will be abused by policymakers working with “competitors” in the ensuing regulatory process, thwarting free expression and any innovation those practices might have brought to the marketplace.

The discretion granted by the FCC to itself makes it now the de jure arbiter of Internet innovation and growth. This is hardly inspiring from a Commission that has a hard time keeping its own website up, it crashing temporarily today as the Order was first given unto the world.

On the whole, the President’s / FCC’s Order reflects a profound disdain and mistrust of private industry to serve Americans and the world. This is a speech and information takeover, pure and simple. Woodrow Wilson would be proud. He distrusted private enterprise and the free expression it engendered, too. Sadly, Americans will suffer as a result. Congress and the Courts remain the only avenues now to stop this harmful agency from killing the Internet and our prosperity.



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March 3, 2015

The FCC says the President’s new Title II rules are not about controlling speech. I guess that memo never made it to FCC Commissioner Mignon Clyburn, who seems to believe that controlling free speech is the very heart of the new Internet takeover.   In her statement at the FCC’s open meeting last week, when […]

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Video: Title II Is No Way to Promote Competition, Grow the Internet Says TechFreedom’s Berin Szoka

March 2, 2015

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February 25, 2015

If you were listening to the Rush Limbaugh Show today, you would have heard Rush talk about Net Neutrality (btw – he thinks it’s an Obama takeover of the Internet), and, in particular, Randy May’s important take on it. And what is that, you may ask? Well, Randy believes that in the four decades that […]

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Video: Internet Takeover Will Be the Stupidest Thing Done by the FCC Since 1934, with Scott Cleland

February 23, 2015

I was able to catch up with NetCompetition’s Scott Cleland on Capitol Hill last Friday.   In the accompanying (short) video, he’s not pulling any punches: In his view, the President’s takeover of the Internet this coming Thursday – via his FCC and its imposition of old-fashioned telephone rules for the Internet – is about […]

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