FCC Commissioner O’Rielly Keeps On Going

. . . Claiming, With Zero Evidence, That Community Broadband Is An Ominous Threat To Free Speech

by Karl Bode, Dec 17, 2018 | Original Tech Dirt article here.

. . . from the Misdirection Department . . .

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 terms-of-service 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 blog post, entitled "Muni Broadband’s Ominous Threat to the First Amendment" received a thorough Disqus comment from Mike Watza:

The titled suggestion, followed by the sophomoric and inept defense of an apparent argument that municipal broadband, which imposes virtually identical rules of use as the private sector, somehow threatens the 1st Am, is so preposterous that I could not help but compare the author to my memory of Greg, in the movie "Animal House", who rose and defended the indefensible while wrapping himself in the flag. I think a future in comedy may be in the offing. If only I could be assured that in fact the intent was to amuse.

If on the other hand, the intent is serious, then as a member of a very small group who get to decide much about how we all communicate with one another across this country, the author is in great need of at least a brief introduction to the reality the rest of us are much too familiar with.

Not a single municipal mayor, councilwoman, staff member or resident has ever awakened on any morning anywhere in this great land and thought, let alone acted upon the idea that –

"Today, I am going to reject that marvelous hi-speed/fairly priced/ubiquitous information super highway which at&t, Verizon, Comcast or Charter have built, with fees paid many times over, to my home and place of business, connecting me with all my global neighbors. And instead, I’m going to add to my already overfilled plate of obligations and take on the task and expense of building and operating such a system in my town. Oh, and all this so I can suppress my neighbor’s freedom of speech."

Not ever. Not anywhere in this land. Not in our lifetimes.

Municipal Broadband exists because a still too few community leaders, acting bravely on behalf of needs and even demands from residents, have acted to fill the absolute void that exists right where that marvelous hi-speed/fairly priced/ubiquitous information super highway is supposed to be. That system so many of our global competitors have but which the author, and other friends of communications monopolists, have squelched by blind obedience to the dictates of monopolist industry overlords.

We saw much the same 100 years ago when the domineering electric industry told municipal leaders that they could not and should not build their own electric systems, even in places where the industry had no intention of ever building. All to protect their monopoly markets. And that industry had its cheer leaders too, who made such speeches, defending the indefensible while wrapping themselves in a flag they had no real understanding of or allegiance to.

Thankfully, the children in those towns today read by the wonder of electric lighting. A thing their towns bravely fought for and now provide to their residents. A thing the industry and its puppets resisted for decades. Only through dogged perseverence by city residents and leaders, electric lights have become a reality despite the purveyors of darkness who wrapped themselves in a flag and extolled a market system that never existed in the electric industry and does not exist today in the communication industry.

And, on that 1st Am issue, which is more likely to support 1st Am principles, practices and speech? A ubiquitous fiber based, robust, fairly priced and open information super highway such as the City of Chatanooga has built for its residents or, a vastly overpriced, usage capped, antiquated, speed choked, dirt road, which is what the US Communication two track is today for most Americans. Thanks much to the protectionists of monopolies occupying some corners of the FCC.

We should be so fortunate as to have more leadership like that found in the City Hall of Chattanooga, who understand reality, embrace the needs of those they serve and the guts to do what needs doing. I’ll put my trust in that kind of elected leadership to help protect my 1st Am rights, over that of the monopolists and their supporters.

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.

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 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 community anger. Communities aren’t getting into the broadband business because they think it’s 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.