In remarking on Julius Genachowski’s Net Neutrality Order in 2011, then Public Knowledge’s Gigi Sohn exclaimed, “The commission is in no way regulating the Internet. It was merely attempting to return to a modest level of traditional authority needed to safeguard the rights of Internet users.” (Emphasis added)

Former FCC official, Gigi Sohn: Oh, I was only kidding about this traditional stuff. Net Neutrality is really a progressive policy designed to limit your voice and power. My bad.

But, it was all a bunch of bunk, like a Nancy Pelosi, Jonathan Gruber, Ben Rhodes snowjob on the American people, hoodwinking us into believing that what the FCC was doing with its specious Net Neutrality policy was “good, necessary and fair” – and most certainly not a confidence job designed to subsidize Silicon Valley, while also imposing speech-killing, “media reform” policies that ration out proper, progressive “digital broccoli” so Americans can “better” self-govern.

Why let the truth get in the way of a “good” policy, right?

Anyway, earlier this week, in a piece entitled, “Fighting for Fast, Fair and Open Networks,” former FCC bureaucrat Sohn exposed her Net Neutrality prevarication, openly bereaving, “In just a few months, I went from helping to shape, adopt, and expand some of the most progressive communications policies in history to having to defend them.” (Emphasis added)

Get that? Net Neutrality regulations = “the most progressive communications policies in history.”

Subsidies come and go. So do abusive companies. “Progressive policies” – which, in the communications context, are meant to control content and speech – are a little harder to excise (the Communications Act of 1934 is filled with them).

Let’s hope Sohn remains on the defensive for a long, long time – the FCC, Congress and the Supreme Court would do well to keep her “media reform” agenda well away from the traditional authority of the First Amendment.


Daniel Berninger is Founder of VCXC, and was an intervenor in the appeal to overturn the FCC’s 2015’s Open Internet Order. Earlier this month, he asked the Supreme Court to take a look at the OIO. Berninger believes the OIO is specious and is especially offensive to the the First Amendment, which he notes the Commission turned on its head in order to regulate the previously non-regulated Internet. He hopes the Supreme Court agrees with him, and in doing so, end the FCC’s reclassification ping pong game once and for all.

I was able to catch up with Berninger last week, and below is a video (along with a transcription) of that discussion.

The value proposition of communication has exploded during the period of non-regulation, at least of the Internet, from 1995 to 2015. Literally about a thousand-fold expansion of the value proposition – whatever it is you got in 1995, you’re getting a thousand-times that for the same dollar in 2015. I don’t know any sector of the economy anywhere, even just computing, that has improved that much in a period of 20 years in the planet. In the history of the planet, has that ever happened where the value proposition expanded a thousand-fold in 20 years?

The smartphone service that you have today, like an LTE service on a smartphone, if you had that in 1995 as a regulated service, it would’ve been $10,000 a month. So, here we are getting something for 100 bucks a month, and the regulators say, “Wow, as a non-regulated service, you’ve done such a great job, we now need to regulate that to protect it.”

The net is of that is that it becomes so important that we’re not just talking about washing machines and toasters. When you give somebody something that is a thousand-times more powerful, they’re that more attached to it. And so, when somebody comes up and says, “Oh, aren’t you afraid of something happening to this,” it works. And again, fear, the dialogue of fear and vilification of the phone companies sort of pushes reason away. Nobody pauses and says, “Well, wait a minute. 20 years of non-regulation to get me a 1000-fold expansion in value. Why is it that I need regulation?”

The Commission, which was essentially put out of business by the Internet, is struggling to have a business. So in the private sector, when you lose all your customers, you go out of business. But not in the case of government. The FCC essentially lost all the customers for the telephone network by 2015, and so they just simply declared, “Well, we own the Internet.” One thing people have to do go back and read the Constitution. And the Constitution, in addition to the First Amendment, says that Congress makes the laws. And so, in order for the FCC to claim that it has a role to play in the Internet, it essentially had to legislate. It essentially had to invent a role because there is nothing; certainly in 1934 nobody wrote in a law that said the FCC should control the Internet. And even in 1996 when they did the update, they were emphatic in the plain language of the Act, “Stay away from the Internet. We don’t need you.” So, literally, the FCC had to invent, and with the help of the the DC Circuit in some cases, just entirely made up the reasons and rationale to regulate the Internet. And everybody admits it had never really been a problem. There’s trillions and trillions of interactions over the Internet over a period of 20 years, and they can only find a handful of even just anecdotes. And so, it turns out if you want to get the government to regulate something, pick something that doesn’t exist and pursue it. It’s sort of like Big Foot – we’re still not sure if Big Foot exists or not, and you just can’t talk people out of it.

The problem is we’re unhinged from the Constitution, we’re unhinged from the First Amendment, and that’s leading to this ping pong of reclassification. And so, there are some really fundamental questions now, after 15 years, that the Supreme Court can and should intervene on rather than waiting for yet another cycle and reformulation. So we’ll see.

As dysfunctional as Congress is, the one thing that’s a fact is they will not get involved in communications so long as the FCC apparently can do whatever it wants. In other words, there’s no reason for Congress to act if it turns out that the FCC can go, and in the words of Justice Scalia, go on a voyage of discovery. Congress doesn’t need to take the risk to put a stake in the ground and fight the political battles if it turns out that the FCC can do whatever it wants. So, the end of this process really has to be the Supreme Court saying, “No, we don’t see anywhere here where the FCC is allowed to regulate the Internet. And even aside from the FCC, if government wants to regulate the Internet, it needs to follow the First Amendment.” And what they’ve done with the Open Internet Order was invert that, turn it over. And they’re saying, “Government will protect freedom of speech and all the freedoms.” One of the things I say these days is that Orwell is in charge of word definitions. And so, as we approach the Orwellian tyranny, all the words turn upside down and become the opposite. So war is peace. The whole initiative is government claiming, “Hey, we’re going to be the referee to make sure everything’s going to be OK on the Internet.” But again, if you notice what the original First Amendment was, it was a negative impairment for a reason that since the beginning of civilization governments have not been your friend in communications.

The grand history of communications and what people don’t realize is their anxiety about phone companies is really an anxiety about government’s support of phone companies and intervention. So, if you hate the government, or if you hate a telephone company, you need to go examine why. And go back in history and see where government was making innovation illegal. You were not allowed to attach anything to the phone network, and that was government that did that. However big and evil the individual telephone companies might be, having government as a controlling entity there – now that is a world class, unaccountable monopoly. You’re not doing yourself any favors by trading a private sector monopoly or somebody who supposedly has market power for government. The long history proves that, and until it proves something else, we need to presume and follow the Constitution, Separation of Powers and follow the First Amendment. The First Amendment says government shall not screw with my communications. And hopefully the Supreme Court will affirm that next year.


A colleague of mine, Fred Campbell, recently wrote a piece in which he posits, “Maybe We Should ‘End The Internet As We Know It’.

In the piece he notes:

If only the internet we know weren’t such a mess. Policies that net neutrality advocates are clamoring to preserve have facilitated the internet’s roles in undermining fair elections, providing a safe haven for sex traffickers, destroying privacy, nurturing the world’s largest information monopolies (e.g., Google, Amazon), subverting free speech, and devastating publishing industries.

What Campbell specifically refers to is Section 230 of the Telecommunications Act of 1996 – or, what some in the tech industry call “the most important law in tech.” It allows service providers (like those in Silicon Valley) to block “objectionable” material and avoid liability of content trafficking over their networks from third-parties.

Main Street content creators bear the brunt of Section 230’s online favoritism.

It’s important, alright. Many credit it with creating the Web as we know it, relaxing the traditional legal treatment of publishers, who would otherwise be on the hook for everything they put out on their properties.

Google, Facebook and Twitter have used Section 230 protections to the extreme. They’ve enabled the companies to legally exploit the “free” (often pirated) content of third-parties, attracting billions of eyeballs to their platforms to sell ads and other goodies. In practice, 230 represents a tremendous subsidy from Main Street content creators to the online world. The Big Three have reaped an immense windfall as a result.

Should we revisit this policy? Perhaps – if one finds it has somehow distorted the marketplace; or if it has helped create a moral hazard.

I think we are close to (but not yet over) that bar with the behavior of the Big Three.

Recently, Google, Facebook and Twitter have all come into the headlines for profiting from “Russian propaganda” / “fake news” during the ’16 Presidential election. You may also remember their efforts this past year to censor “undesirable speech” pouring over their platforms, such as what resulted from the Charlottesville clashes, or the various speech councils erected to protect against bullying and so-called “hate speech.”

Apparently, the Big Three recognize the peril their behavior has put them in, and, for the time being, they seem to have put on their grown-up pants and have begun acting more like newspapers (which at least one Google-funded academic says they already are). I say seem.  You see, they want to censor and control their facilities through their fastidiously maintained, proprietary algorithms and human content control councils – acts that look strikingly like traditional publishing decisions – yet still avoid the liability for pirated content, defamation, etc. that comes with being a full-fledged publisher.

In other words, they want their cake and eat it, too.

Printing press – The Big Three should come clean and declare themselves traditional publishers, mitigating the distorting effects of Section 230’s subsidy.

Printed newspapers and broadcast outlets have to vet everything they publish. It all has to be sourced and the content paid for / properly titled before it goes out the door. This work is expensive, and puts them at great disadvantage to those who don’t have such legal obligations (like the Big Three).

I don’t have a quick answer here, but something isn’t right about the 230 subsidy / imbalance, especially when you see Silicon Valley push another Valley-favoring subsidy – Net Neutrality – which it and its political beneficiaries designed to prevent ISPs from doing the very things Google, Facebook and Twitter are doing right now: arbitrarily / unreasonably / non-transparently censoring, blocking and discriminating against unaffiliated content.

Let’s face it, Google, Facebook and Twitter bend our information markets at their will, not the market’s. They should be held to a higher standard.

I’m not advocating changing the protections of Section 230 (though some in Congress are). Rather, I think it’s incumbent on the Big Three to accept what the market already knows to be the truth.  That is, they should come clean and declare themselves to be real newspapers / publishers. This means they would have to play by the same rules (and costs) others in the real-world bear to gather and present information in a trustworthy manner. I think this would go far to rid the marketplace of “fake news” and other nonsense that both taints the information diets of a majority of Americans, and undermines the very content creators whom the platforms exploit.

How long will Americans accept the tale from the Big Three, “Hey, it’s not our fault we traffic such crappy stuff, which (so greatly) affects your daily lives”?  What a morally repugnant stance.

The law does not require use of Section 230’s protections. It is an election.  The whole information ecosystem would be better off if the Big Three un-elected their distorting, hypocritical and exploitive 230 subsidy.


I wrote the following piece, which appeared in Morning Consult, September 26, 2017.

Bots Lose, Real Americans Win With the Internet Policy Debate

According to data gathered from the Federal Communication Commission’s Electronic Comment Filing System, approximately 22 million comments have flowed into the agency’s Restoring Internet Freedom proposal — a rulemaking seeking to modify the 2015 Commission’s controversial Title II net neutrality order.

But there’s a hitch. Millions, that is.

It seems the majority of those comments aren’t real. And the balance that remains shows that the prior FCC Order should be repealed. A study commissioned by industry group Broadband for America concluded that “69.9% of [RIF] comments are in favor of repealing Title II once accounting for fake and unverifiable international comments.”

This has net neutrality proponents crying “conspiracy,” caterwauling that the BoA research is no more than corporate-funded FUD designed to undermine millions of comments in the “ballot box,” which “prove” that “real” Americans demand keeping Title II net neutrality to regulate the internet.

Among those leading this ironic (we’ll get to that in a minute) witch hunt is former FCC official Gigi Sohn. She’s called on the agency to explain itself because, as she points out, the ECFS doesn’t authenticate comments which invites the spam, therefore undermining the integrity of the system and putting it in potential conflict with the Administrative Procedure Act.

Now, let’s address why this argument is, in fact, ironic.

Three years ago, the FCC, including Ms. Sohn, was in the exact same position as the current FCC and failed to “authenticate” comments regarding its proposed Title II net neutrality order — the exact thing they are now blasting the current FCC for.

And that’s not all. In addition, over 220 pages of FOIA’d e-mails recently released by the FCC to my organization, MediaFreedom, indicate that as “4 million” comments flooded the FCC on its Title II net neutrality proposal in 2014, the agency at its highest levels of leadership willfully ignored authenticating them.

Interesting. We didn’t hear the FCC screaming then as that proposal became law, did we? Nope.

Of course, if the agency had investigated the 2014 comments – as 12 market-based groups urged then-FCC Chairman Tom Wheeler and his inspector general to do three years ago – it would have been forced to toss out tons of them. Doing so, however, would have doomed the “4 million” net neutrality “votes” purportedly asking “for” utility regulation of the internet.

Quite simply, the prior FCC knew its comment count was, well, fake news. But unwilling to let the PR jackpot it helped create go to waste, the agency doubled down and continued spinning its tale, using those unverifiable “voices” to disenfranchise average Americans so it could get Title II net neutrality into law.

Let’s address the facts and nothing more. Most admit that the ECFS has flaws, this is true. And the lack of authentication is key among them. Yet, as we’ve seen with the past and present net neutrality battles, this open system can be easily abused by unscrupulous characters (the FCC is presently addressing solutions that encourage the public to comment, but which also stop the spam).

Chairman Ajit Pai’s FCC will make its decision as soon as November based on meticulously parsing through comments to discover what is real and what is not. Then, balanced with the need to gather diverse facts from the public to inform the record, the due process demands of the APA, the statute which outlines the commission’s powers, and court precedent, the agency will use its expertise to transparently decide how best to move forward.

Much to the chagrin of people like Ms. Sohn, the current process indicates that the charade is over. Bots lose. Real Americans win. Of course, they’ll continue kicking and screaming to fuel the net neutrality propaganda machine. This includes blitzing Capitol Hill in several weeks with what they’re calling a “Net Neutrality Day of Advocacy” in which activists will escort volunteers to puppet activists’ net neutrality message (another irony in this tale, considering they’re going to lawmakers although they’ve flat-out denounced a legislative solution to the matter).

Facts — not fake comments and sensationalist messaging — are back in the driver’s seat at the FCC. And this good (shall I say, renewed) process will prevail.


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