When he spoke at the “Free Speech America” Gala in October, did FCC Commissioner Mike O’Rielly think he would still be explaining himself almost two months later? After trying and failing to justify his false claim that munis violate the First Amendment, he’s once again on the defensive. He's getting no help from the big national ISPs he's trying to support.
“Flirting With A Perverse Form of Socialism"
In October, O’Rielly’s accused municipal networks, including Chattanooga’s EPB Fiber Optics, of violating the First Amendment by limiting subscribers free speech. Journalists and organizations who know better were quick to correct him. In a December 13, 2018, blog post, he lashed out at his critics and tried to defend or explain his earlier comments, but once again missed the mark.
In his newest commentary, O’Rielly dramatically describes local decisions to invest in broadband infrastructure as “flirting with a perverse form of socialism.” He goes on to state that publicly owned networks deter private entities from entering the market. He’s correct if we only consider the large, corporate ISPs that refuse to compete with anyone on order to preserve the characteristics monopolies created through concentration of power: shoddy customer service, unchecked rates, and lackluster Internet access.
If we look at private ISPs more interested in serving the local community than in boosting share prices, however, we see some healthy competition. As in the case of Grant County, Washington, where more than a dozen ISPs offer services via the Grant County PUD open access network, if a private provider doesn't perform to subscriber standards, there are others to try.
Contrary to what Commissioner O'Rielly claims, when local communities invest in infrastructure, it often encourages private invetment. In Longmont, Colorado, incumbents Comcast and CenturyLink upgraded their services to keep up with the local publicly owned NextLight. In West Plains, Missouri, the local cable Internet access company upgraded their services to offer gigabit connections when the city developed a pilot project, and in Huntsville, Alabama, Comcast upgraded services to compete with Google Fiber, which had just entered into an agreement to operate via the city's dark fiber network.
It’s in the AUP
O’Rielly argued that municipal networks violated the First Amendment because they, like ISPs in the private sector, require subscribers to adhere to certain acceptable use policies (AUPs). In an article published soon after O’Rielly made his October speech, ISP OTELCO, which is now offering services via Leverett, Massachusetts’s municipal network, addressed O’Rielly’s concerns with AUPs.
OTELCO compares the language of AUPs from Verizon, the town of Islesboro (also providing municipal high-quality Internet access), and OTELCO. The company writes:
As you can see for yourself, there is very little difference in these AUPs, private or municipal. All of these AUP’s are asking the same things from their users: don’t break the law, don’t say cruel things to others, and don’t prevent other people from using the Internet. Most of these things are just basic human decencies.
OTELCO also took a critical look at O’Rielly’s source to back up his claims that municipal networks are likely to infringe on subscribers’ First Amendment protections, Professor Enrique Armijo from the Elon University School of Law. Neither gentleman could or did provide an example of a municipality that suppressed subscribers’ speech either purposely or through error.
It’s also important to remember that local governments don’t abandon all their own rights when dealing with First Amendment matters. Municipalities still have the ability to put some limits on time, place, and manner of speech -- for example, loudspeakers aren't typically allowed in the middle of the night in a residential area -- and there are specific limitations, with defamation, fraud, and child pornography being a few.
This legal precedent is often haughtily debated in courts of law. Unfortunately, racist, sexist, and bigoted speech are not covered by this. That is probably why municipal AUPs don’t directly mention those types of speech, whereas private ISPs do. A clear effort being made on the municipality’s part to uphold its citizens First Amendment rights.
OTELCO goes on:
The fact that O’Rielly is suddenly concerned about this so-called threat to the First Amendment would be laughable if it wasn’t so concerning. Studies done on the supposed threat to freedom of speech posed by municipalities are full of speculation. ISPs need to create acceptable use policies to protect their users and their network. Municipal owned networks are not doing anything that a normal ISP wouldn’t do, and they clearly have a right to do so.
Protecting the First Amendment?
Throughout his October 24th speech and his follow-up blog post, O’Rielly states that he’s motivated by the desire to protect the First Amendment. As Next Century Cities Executive Director Deb Socia points out, he’s expending his energy in the wrong direction:
If Commissioner O’Rielly and the FCC were more focused on fixing known problems with broadband internet access across the U.S., the responsibility would not fall on cities to take action.
Commissioner O’Rielly cannot identify a single instance of a municipal broadband network infringing on anyone’s freedom of speech. He dances around the issue with examples of national governments around the world, but the Mayor of Chattanooga is not comparable to the Prime Minister of some national government on another continent.
Local government officials have a Constitutional obligation to uphold free speech. Mayors and council members are accountable to their constituency – they live and shop and attend events with the residents in their communities. If they are not adhering to the expectations of that community, they will be held accountable on election day.
In a recent Communications Daily article on O’Rielly’s reply to being called out about his misstatements, our Christopher Mitchell offered a similar sentiment on local power:
O’Rielly is conflating local governments with national governments, said Mitchell. “I’m probably with Commissioner O’Rielly in not wanting the federal government to control my broadband network, but I trust my local government." Local citizens have more of an ability to influence the behavior of their local government than they do to influence a large, national ISP, Mitchell said.
Lack of Influence
How fortuitous that this lack of influence on CenturyLink led to their decision to block the Internet for their Utah customers within just a few days of the year anniversary of the FCC’s end of federal network neutrality protections.
The large, national ISP took it upon themselves to disable subscribers Internet access, only allowing people to get back online after acknowledging an opportunity to purchase kid-safe filtering software. Those who were blocked all resided in Utah, where the state recently passed a law requiring ISPs to notify customers “of the ability to block material harmful to minors.” It was, however, CenturyLink’s idea to force people offline to do so. The law allows ISPs to put notification in with a monthly bill or in some other “conspicuous manner.”
Ars Technica wrote about the incident, reported by CenturyLink subscriber and independent journalist Rich Snapp. On his blog, Snapp described how, while streaming video, his TV went blank; all other devices confirmed that his Internet access was not available. When he checked his phone, he was directed to a website that required him to acknowledge that CenturyLink had offered him the chance to purchase the filtering service before he could return to his online activities. He soon discovered that other Utahns had been having the same experience.
When reaching out via Twitter to the sponsor of the legislation, Senator Todd Weiler confirmed that the bill did not require such drastic action. Weiler also replied that no ISP had blocked subscribers; he is, of course including the multiple ISPs that operate on the publicly owned UTOPIA network. This type of behavior is unique to the large, national Internet access companies that Commissioner O'Rielly appears to put so much faith in as gatekeepers of free speech.
We’re not sure whether or not to expect another explanatory response from Commissioner O’Rielly. In his December 13th blog post, he expressed deep concern that municipal networks would block subscribers from content protected by the First Amendment. He didn’t offer his opinion, however, about those big, national ISPs that block subscribers from ALL online content.
Maybe in his next blog post he’ll enlighten us.