Column: An FCC commissioner attacks municipal broadband systems by falsely claiming they’re a threat to free speech

The Republican-dominated Federal Communications Commission has set new standards in delivering favors to the big businesses under its jurisdiction at the expense of consumer protection. But FCC Commissioner Michael O’Rielly may have established his own high-water mark a few days ago with an attack on municipal broadband systems.

In a speech Oct. 24 to the Media Institute, a Washington think tank, O’Rielly labeled “state-owned and -operated broadband networks” a “particularly ominous...threat to the 1st Amendment.” He accused them of having engaged in “significant 1st Amendment mischief.”

Interestingly, O’Rielly didn’t point to any specific cases of such “mischief,” much less make the case that publicly owned broadband networks have infringed on the 1st Amendment. The reason for that may be that there are no such cases. “There’s certainly no record of any local governments censoring in the way that he suggests they either are or could,” says Christopher Mitchell, a public broadband expert at the Institute for Local Self-Reliance.

Mitchell said that even though free enterprise — that is, the removal of regulations that irk private internet service providers and other telecommunications companies — seems to be a guiding force in FCC policymaking in the Trump era, O’Rielly seems to be operating somewhat out in front of his GOP colleagues on the panel, Chairman Ajit Pai and Commissioner Brendan Carr.

The Republican majority hasn’t worked to place new constraints on municipal broadband expansion. The reason may be that the courts and conservative state governments can do the job for them. The majority Democratic FCC under President Obama, for example, tried to block state governments from interfering with municipal broadband projects in Tennessee and North Carolina, but a federal appeals court nullified the FCC’s action as an impermissible interference in state-municipal relations.

Public internet services have been growing strongly in recent years, filling a vacuum left by commercial ISPs such as Comcast, Verizon and AT&T. That’s an improvement over the concept’s earliest, halting steps, when it was hampered by poor technology and unfamiliarity. In the city of Anaheim, for instance, EarthLink abandoned a public-private partnership to install citywide wireless connectivity in 2008 after only two years of work—its wireless technology was relatively slow, had difficulty penetrating exterior walls and couldn’t reach around hills. Newer generation systems offer faster and more robust fiber and cable connections.

Municipal networks “have provided incredible opportunities for communities where there’s been no service or really poor service,” says Deb Socia, executive director of Next Century Cities, an advocacy group for municipal broadband systems.

Publicly owned systems have been proliferating. More than 130 communities have a publicly owned service offering high-speed gigabit broadband, and 197 communities have at least some public fiber service, often to a business district or public buildings. But barriers to local investments in such infrastructure exist in 19 states.

When municipal networks are up and running, they can be effective competition for the private companies, forcing them to reduce prices and upgrade speeds and customer service. What red-blooded American industry wants to face that?

An industry group that included Comcast spent about $1 million last year to defeat a ballot initiative in Fort Collins, Colo., to set up a municipal system. Backers of the measure spent only about $15,000 — and won. Public systems are proliferating, and often are highly popular. Chattanooga, Tenn.’s, system, a pioneering network launched in 2010 and operated by the city-owned electric utility, has three times as many subscribers as its founders anticipated, turns a profit and garners some of the highest marks for customer service in the country. In Southern California, the cities of Culver City and Beverly Hills are building fiber broadband infrastructure to serve, initially, businesses and public buildings.

O’Rielly’s hand-wringing over these systems’ threat to free speech is so extreme as to border on the bizarre. His only concrete reference is to research by Enrique Armijo, a law professor at Elon University in North Carolina. Armijo has been on the warpath for years about terms of service set for subscribers by Chattanooga and other municipal ISPs that frown on hate speech, “obscene, threatening, abusive or hateful” material or content that offends “the privacy, publicity or other personal rights of others.”

Armijo’s argument, set forth in a series of posts at the website of the libertarian Free Speech Foundation and elsewhere, is that municipal networks are government actors and therefore shouldn’t be restricting speech in any way.

That may or may not be so, but it hasn’t been tested in court and it’s unlikely that the FCC would be the proper agency to set forth a constitutional judgment — if some hate group gets banned from the Chattanooga system, perhaps it will sue and we’ll find out. In the meantime, for O’Rielly to assert, as he did last week, that “municipalities such as Chattanooga, Tenn., and Wilson, N.C., have been notorious for their use of speech codes” is a ludicrous misstatement. In any event, such language parallels the terms of service buried in the subscriber agreement of almost every ISP.

When I queried O’Rielly’s office for a clarification, he backtracked a teensy bit. It wasn’t exactly that the municipal networks were “notorious” in using speech codes or engaging in “significant 1st Amendment mischief,” he told me in an emailed statement, but that “when a government-owned network preconditions use on adherence to vague speech codes, the potential for political or discriminatory censorship raises significant 1st Amendment concerns.” (Emphasis mine.)

The truth is that the real threat to free speech online is less likely to come from municipal networks than from privately owned ISPs, which have a commercial incentive to throttle some content because it comes from competitors or sources that won’t pay them a vigorish. ISPs with their own content to sell already have established a record of downgrading rival material.

Comcast owns NBC and AT&T owns Warner Bros., CNN, and Turner Broadcasting — do you trust them to give first-rate transmission to content from other video services? Me neither. But “if you’re a city government,” Socia says, “you can’t go against the 1st Amendment.” Leaving aside the constitutional constraint, “you won’t get reelected.” She says O’Rielly’s 1st Amendment argument “is one I haven’t heard before.”

The most curious element of O’Rielly’s complaint is that he doesn’t have a very firm grasp of free-speech principles himself, or at least of the role of the free press. In the same speech last week, he also hared off against “pirate radio,” specifically a rogue FM station that was broadcasting in or around Longmont, Colo., late last year. The Longmont Observer, an online news site, noticed the station’s signal, acknowledged that it was probably powerful enough to violate FCC rules, and advised its readers to “enjoy Longmont’s pirate station while it lasts.”

This infuriated O’Rielly, who told the Observer by letter that once it learned of the station, its proper role was to “alert the Federal Communications Commission’s (FCC) Field Office in Denver to initiate an investigation and potentially enforcement proceedings, not suggest people listen while they can.” O’Rielly repeated that position in his speech.

“The publication took great umbrage with my criticism,” O’Rielly told his audience, even though he didn’t suggest that “the government had a right to stop any further publications or impose a penalty … given that the FCC has no authority whatsoever over newspapers.” (Lucky us.) “I didn’t even suggest that people stop reading the publication, withhold advertising, or cancel their financial support memberships.”

But here’s an additional primer for Commissioner O’Rielly: The news media aren’t the FCC’s police force or moral shock troops. You think the pirate station is violating the law, go to town on them. Leave us out of it.

What O’Rielly probably doesn’t wish to acknowledge is that the only reason we have so much interest in municipal broadband networks is that the private ISPs overseen by the FCC have done a horrible job bringing connectivity to the U.S. Vast swaths of the country remain unserved because they’re judged to be unprofitable; while some of the most affluent, tech-savvy regions nevertheless have lousy service at sky-high rates. American internet service is the laughingstock of the developed world. Maybe Commissioner O’Rielly should be worried about that, instead of whether Chattanooga is a threat to the Constitution.

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