By Berin Szoka & Adam Thierer

This morning, The Progress & Freedom Foundation (PFF) and the Electronic Frontier Foundation (EFF) filed joint comments with the Federal Communications Commission (FCC) in the inquiry “Empowering Parents and Protecting Children in an Evolving Media Landscape.” (MB Docket No. 09-194)  As Adam summarized here before, the stated purpose of this FCC Notice of Inquiry is to:

seek information on the extent to which children are using electronic media today, the benefits and risks these technologies bring for children, and the ways in which parents, teachers, and children can help reap the benefits while minimizing the risks [and] to gather data and recommendations from experts, industry, and parents that will enable us to identify actions that all stakeholders can take to enable parents and children to navigate this promising electronic media landscape safely and successfully.

In our joint comments with Lee Tien and Seth David Schoen of EFF, we warned that the FCC should tread carefully when considering taking action on areas described in their inquiry. The agency simply has no authority to act on many of the topics discussed throughout the NOI, and it should not attempt to preempt successful private sector solutions. Congress never authorized the Commission to regulate Internet media, nor asked the agency to consider doing so.  In fact, Congress plainly declared that the Internet should be kept “unfettered by Federal or State regulation.”

Any regulation of online media would also fail to pass First Amendment scrutiny, as there are less restrictive means than government regulation to control minors’ access to objectionable content.  In addition, any mandate on content creators or access providers to rate or tag content would constitute compelled speech.

In response to the agency’s request for comments on the awareness and adoption of parental control technologies, we catalog the diverse array of tools and methods available to parents to tailor their exposure to potentially objectionable media and advertising, but advise that only a small percentage of U.S. households potentially need such technologies.  We also warn against a government-run content ratings system because of the overwhelming volume of content available online and because content outside the U.S. would be outside the government’s jurisdiction but just as easily accessible.

Finally, we also respond to the agency’s questions concerning children and advertising, explaining that, in addition to jurisdictional and First Amendment concerns, increased regulation of advertisements could have a negative impact on the production of children’s programming and content, since the majority of this content is supported by advertising or, on the Internet, flows over platforms like YouTube and Facebook that are supported by advertising.

In light of such concerns, “the Commission should continue what it began with its Child Safe Viewing Act Notice by expanding information and education about existing tools and ratings systems and encouraging parents to use these tools and methods and to talk to their children about appropriate media use,” we conclude.  “Beyond that narrow Congressionally-sanctioned mission, the Commission should tread cautiously.”

Read the entire filing here or down below in the Scribd reader.

PFF-EFF Response to FCC Empowering Parents Protecting Children NOI MB 09-194 http://d1.scribdassets.com/ScribdViewer.swf

By Berin Szoka & Adam Thierer

We learned from The Wall Street Journal yesterday that “Federal Communications Commission Chairman Julius Genachowski gets a little peeved when people suggests that he wants to regulate the Internet.” He told a group of Journal reporters and editors today that: “I don’t see any circumstances where we’d take steps to regulate the Internet itself,” and “I’ve been clear repeatedly that we’re not going to regulate the Internet.”

We’re thankful to hear Chairman Julius Genachowski to make that promise. We’ll certainly hold him to it. But you will pardon us if we remain skeptical (and, in advance, if you hear a constant stream of “I told you so” from us in the months and years to come). If the Chairman is “peeved” at the suggestion that the FCC might be angling to extend its reach to include the Internet and new media platforms and content, perhaps he should start taking a closer look at what his own agency is doing—and think about the precedents he’s setting for future Chairmen who might not share his professed commitment not to regulate the ‘net. Allow us to cite just a few examples:

Net Neutrality Notice of Proposed Rulemaking

We’re certainly aware of the argument that the FCC’s proposed net neutrality regime is not tantamount to Internet regulation—but we just don’t buy it. Not for one minute.

First, Chairman Genachowski seems to believe that “the Internet” is entirely distinct from the physical infrastructure that brings “cyberspace” to our homes, offices and mobile devices. The WSJ notes, “when pressed, [Genachowski] admitted he was referring to regulating Internet content rather than regulating Internet lines.” OK, so let’s just make sure we have this straight: The FCC is going to enshrine in law the principle that “gatekeepers” that control the “bottleneck” of broadband service can only be checked by having the government enforce “neutrality” principles in the same basic model of “common carrier” regulation that once applied to canals, railroads, the telegraph and telephone. But when it comes to accusations of “gatekeeper” power at the content/services/applications “layers” of the Internet, the FCC is just going to step back and let markets sort things out? Sorry, we’re just not buying it.

Chairman Genachowski may sincerely believe that a clear, bright line can be drawn between the “infrastructure layer” (which he’s certainly going to regulate) and what he likes to think of as “the Internet” (which he promises not to regulate). But as we warned last October, the day after the FCC launched this NPRM:

The promise made yesterday by the FCC—to only apply neutrality principles to the infrastructure layer of the Net—is hollow and will ultimately prove unenforceable. The reality is that regulation always spreads. The march of regulation can sometimes be glacial, but it is, sadly, almost inevitable: Regulatory regimes grow but almost never contract… The basic premise of neutrality regulation is already being proposed for other layers of the Internet….  whatever the FCC might say today, any large online intermediary with a popular platform potentially faces the threat of “network neutrality” mandates—because every platform is essentially a “network,” too. We’re not just talking about “search neutrality” (Google as well as Microsoft) but also about “device neutrality” (mobile handsets), “app neutrality” (Apple’s iTunes store, Facebook’s developers and Google’s Android mobile OS) and so on for social networking, email, instant messaging, online advertising, etc.

We explained how the intellectual foundations for this regulatory creep have already been laid by groups like Free Press and Public Knowledge and law professors like Columbia’s Tim Wu (father of “Net Neutrality”), Harvard’s Jonathan Zittrain (father of “API/device Neutrality”), and Seton Hall’s Frank Pasquale (father of “Search Neutrality”). Joining this intellectual vanguard of Internet regulation is George Washington law school professor Dawn Nunziato, whose new book, Virtual Freedom: Net Neutrality and Free Speech in the Internet Age, is a veritable manifesto for expansive neutrality regulation (especially of Google)—and how the First Amendment (“Congress shall make no law…”) should be twisted not just to allow such regulation of speech platforms, but to require it! Even Wu, whose work blazed a trail for these others, is pretty clear about the breadth of his original vision for “neutrality” regulation, as his popular Net Neutrality FAQ makes clear:

The promotion of network neutrality is no different than the challenge of promoting fair evolutionary competition in any privately owned environment, whether a telephone network, operating system, or even a retail store. Government regulation in such contexts invariably tries to help ensure that the short-term interests of the owner do not prevent the best products or applications becoming available to end-users.

Zittrain, Pasquale, and Nunziato don’t pull any punches either: They don’t shy away from flirting with nebulous neutrality definitions and wide-ranging government powers to regulate. So we don’t have to imagine what the “slippery slope” might look like: There are plenty of very smart and highly influential legal academics out there hard at work sketching out precisely where the path Chairman Genachowski has started us down will ultimately lead.

It’s no less clear why we’ll wind up marching down that path, no matter what the current FCC leadership intends.

1. The current net neutrality rulemaking sets a profoundly dangerous legal precedent of essentially unlimited claims of “ancillary jurisdiction”: As our friends at the Electronic Frontier Foundation (who have a soft spot for net neutrality in theory) put it, “If ‘ancillary jurisdiction’ is enough for net neutrality regulations (something we might like) today, it could just as easily be invoked tomorrow for any other Internet regulation that the FCC dreams up (including things we won’t like).” Our PFF colleague Barbara Esbin carefully dissected this issue for the Commission in her recent filing in this proceeding.
2. As explained above, the general regulatory principle of controlling “gatekeepers” doesn’t end with infrastructure.
3. As EFF notes, “Experience shows that the FCC is particularly vulnerable to regulatory capture.”
4. Now that FCC has opened the door to micro-managing online business practices in the name of “neutrality,” the companies that have made America the leader in the Digital Revolution are already turning on each other in a dangerous game of brinksmanship, escalating demands for regulation and playing right into the hands of those who want to bring the entire high-tech sector under the thumb of government—under an Orwellian conception of “Internet Freedom” that makes corporations the real “Big Brother,” and government, our savior.

This strategy of political escalation will thus quickly steamroll over whatever promises made today to narrowly cabin the principle of neutrality regulation—and end in “Mutually Assured Destruction.” That’s why we referred to the day the FCC started down this path back in September as “The Day Internet Freedom Died.”

If that title sounds melodramatic, take a step back and consider that, back in 1996, Congress decided to enshrine in law the principle that the Internet is different from traditional media: Apart from an ill-considered effort to censor online indecency and obscenity (which was quickly struck down by the Supreme Court as unconstitutional) and the enforcement of intellectual property and criminal laws, Congress decided to take a purely laissez-faire approach to the Internet.  As Barbara reminded the Commission in her net neutrality filing, “Section 230(b)(2) flatly declares that it is the policy of the United States ― to preserve the vibrant competitive free market that presently exits for the Internet and other interactive computer services, unfettered by Federal or State regulation.”

So Chairman Genachowski’s decision to revert to the common carrier model of the railroad era marks a fundamental break with the approach Congress decided we would take to the Internet. The DC Circuit will likely soon rule that the FCC has vastly overstepped its authority in trying to set Internet policy without any clear grant of authority from Congress to do so.

Wireless Innovation & Investment Notice of Inquiry

In fact, the same kind of thinking is already being extended by this FCC in a number of other arenas using a flurry of innocuous-seeming “Notices of Inquiry.” While these notices purport only to ask questions, they either:

1. Foreshadow where the Commission intends to go in proposing new regulations based on its nearly limitless conception of its own regulatory authority;
2. Are intended to pressure Congress to give the agency more statutory authority; or
3. Are intended to intimidate industry into “playing ball” so the FCC won’t actually have to stick its neck out by trying to write rules to regulate Internet activities that are clearly beyond its existing authority and might well be unconstitutional even if Congress ever did expand that authority.

Exhibit A is the language in the Commission’s August 2009 Wireless Innovation and Investment Notice of Inquiry, (paragraph 60, pg. 21) that suggests the FCC is angling to become the Federal Cloud Commission:

As other approaches, such as cloud computing, evolve, will established standards or de facto standards become more important to the applications development process? For example, can a dominant cloud computing position raise the same competitive issues that are now being discussed in the context of network neutrality? Will it be necessary to modify the existing balance between regulatory and market forces to promote further innovation in the development and deployment of new applications and services?

Good morning, Google!  Hello, Facebook! Is anyone out there in the cloud listening to the rumbling thunder of federal regulation? What began as academic theory in a law school ivory tower is coming soon to a regulatory agency near you! But wait… there’s more!

National Broadband Plan Public Notice #21 (Cloud Computing)

Last November, as part of the Commission’s ongoing effort to develop a National Broadband Plan, the FCC released a request for information “on data portability and its relationship to broadband.”  (NBP Public Notice #21) “The Commission seeks tailored comment on broadband and portability of data and their relation to cloud computing, transparency, identity, and privacy,” the notice says.  Here was the second item on the list of things the Commission said it was investigating (p. 2):

When considering the portability of data, we also consider the processes through which data are moved. In this context, we seek comment on how to identify and understand cloud computing as a model for technology provisioning…. What types of cloud computing exist (e.g., public, hybrid, and internal) and what are the legal and regulatory implications of their use? … To what extent are consumers protected by industry self-regulation (e.g., the Cloud Computing Manifesto), and to what extent might additional protections be needed? … What specific privacy concerns are there with user data and cloud computing? What precautions should government agencies take to prevent disclosure of personal information when providing data? Is the use of cloud computing a net positive to the environment? Are there specific studies that quantify the environmental impact of cloud computing?

We suppose some might claim there’s nothing wrong with the FCC looking into these issues, and that the agency’s interest in cloud computing is entirely benign. (Never mind the fact that the Federal Trade Commission already enforces the privacy policies of cloud computing providers and is looking hard at online privacy.)  Seeing all these open-ended questions about something so obviously beyond the scope of the FCC’s authority just makes the potential for—and perhaps even inevitability of—regulatory creep hard to miss.  Eventually, when a regulatory agency asks enough questions, especially the sort of questions highlighted above… well, to paraphrase Master Yoda:

Open-ended inquiries about new regulations are the path to the Dark side. Inquiries lead to agency oversight. Agency oversight leads to regulation. Regulation leads to suffering for innovators and consumers alike.

Again, we’re not just inventing bogeymen here. It’s quite clear that regulatory advocates want to take neutrality regulation into “the Cloud.” As Jason Lanier, author of the popular book You Are Not a Gadget summarizes one of his key themes:

While there is a lot of talk about networks and emergence from the top American technologists, in truth, most of them are hoping to thrive by controlling the network that everyone else is forced to pass through. Everyone wants to be a “Lord of a Computing Cloud.”

In Lanier’s dystopia of techno-feudalism, the Lords oppressing the poor digital “peasants” certainly aren’t just those running broadband service providers. It’s the Google, Facebooks, and Twitters of the world. It’s similar to the “sharecropper” concern raised by Nick Carr in his book The Big Switch. Complaints like those will only grow in the years to come, and few will buy—or even pause to remember—the distinction Chairman Genachowski seems to stand on now between infrastructure and “the Internet.”

National Broadband Plan Public Notice #29 (Privacy)

The “Recovery Act” passed in January 2009 tasked the FCC with formulating “a detailed strategy for achieving affordability of such service and maximum utilization of broadband infrastructure and service by the public.” The FCC seized this as an opportunity to solicit suggestions as to how regulate the use and collection of data by the private sector on the grounds that concerns about privacy might somehow be slowing broadband adoption.

Chairman Genachowski’s flurry of open-ended inquiries about new regulation are clearly intended to give a bully pulpit to regulatory advocates to demand that the FCC issue the very sort of Internet regulations the Chairman purports to abhor (or that Congress give the agency authority to do so). But most of these notices at least appear to be objective requests for comments written independently of the groups the Commission seems so eager to hear beg for Internet regulation. But in this case, the Commission dispensed with that tedious formality and just outsourced the writing of the inquiry itself to one of the outside groups clamoring the loudest for data regulation in the name of “privacy”: our friends at the Center for Democracy & Technology, with whom PFF has worked closely on many free speech issues in the past.

CDT is on to something when they write that “Consumers will not embrace broadband if they have a sense that everything they do online will be watched by government officials.” We’ll join with them in the fight to protect consumers’ privacy from the Real Big Brother—government!—but once again, as with net neutrality, advocates of regulation see government as the protector of our digital liberties (if only we can forever make sure noble civil-libertarians are in charge of the regulatory apparatus of the state!). So CDT has it exactly backwards when they say: “Consumer privacy concerns encompass not only what companies do with their data, but also the extent to which the government accesses it.” And instead of just suggesting that the FCC’s National Broadband Plan include a recommendation that Congress clean up the antiquated laws intended to limit government surveillance, CDT pushes for sweeping regulations that would affect the ability of most online services and sites to collect and use the data they need to improve their services, innovate, and maybe even try to make some money on advertising to support all the free content and services they give away.

Thus, instead of focusing on the clear harm from government, the FCC’s outsourced inquiry goes after online operators as “privacy proxies” for concerns about government action. At least Congress actually asked for the FCC’s recommendations in this case, unlike all the other inquiries the agency has launched sua sponte. But as Berin noted in his comments on this inquiry, the Recovery Act allowed the FCC to “recommend only those policies that it concludes will, on net, help achieve “affordability” and ‘maximum utilization’ of broadband.” That means the Commission would actually have to consider the many trade-offs inherent in the private sector use of data before recommending regulation: If the Internet ecosystem is impoverished by government intervention, however well-intentioned it may be, users will have that much less reason to adopt and “utilize broadband.” So the FCC would have a lot of cost-benefit analysis to do before it could actually make the kinds of regulatory recommendations CDT wants. And we suspect that, on the whole, that analysis wouldn’t turn out the way CDT thinks it would.

Child Safe Viewing Act Notice of Inquiry

In a somewhat similar vein, Congress last year asked the agency to examine how well parental control technologies work to allow parents to filter objectionable content online. So while the FCC may have had, for once, the authority to ask broad questions, it’s startling just how broad those questions were. The Commission obviously has no authority over video games or virtual worlds, online video distribution networks or video hosting sites, mobile web content, MP3 players or iPods, P2P networks, VCRs or DVD players, PVRs or TiVo, Internet filters, safe search tools, laptops, and so on. And yet, all these things (and much more) were mentioned in the Commission’s Child Safe Viewing Act Notice of Inquiry.

The proceeding raises the prospect of what Adam has called “convergence era content regulation” since it opens the doors to FCC meddling on a number of new fronts in the name of “protecting children.” Although the Commission’s final report to Congress stopped short of calling for an substantive expansion of the agency’s content regulatory regime, it teed up another proceeding, discussed next. (And if Congress hasn’t moved more quickly to grant the FCC new power in this area, it’s probably because they’re busy trying to figure out how to get around a line of First Amendment cases that consistently require government regulation to yield to “less restrictive” alternatives like parental control tools and education.)

Empowering Parents & Protecting Children Notice of Inquiry

This wide-ranging inquiry reads like the ultimate “fishing expedition” by a regulatory agency—fishing for new jurisdictional authority to regulate, that is!  The questions asked are too broad, far-flung and various to catalog here (we’ll have a big filing coming in the matter soon), but the Commission asks about extending to Internet media the model of the 1990 Children’s Television Act, which imposes “public interest” obligations on broadcasters and cable operators to offer “education” content while also strictly limiting how much advertising may be shown during children’s TV. The Commission also alludes, ominously, to the V-chip model for requiring universal ratings for television and hints that it would really like for “current laws [to] be updated to reflect this convergence and to keep pace with changes in technology” (¶ 41).

The Commission mentions only in passing at the very end of the Inquiry that it “has varying degrees of statutory authority with respect to different media. We ask commenters, in proposing any action, to discuss the source and extent of the Commission’s authority to take the action, or whether new legislation would be needed to authorize such action” (¶ 58). Translation: “Uh, yeah… so… we know we don’t have a statutory leg to stand on here, but we think it’d be really cool if we did, so let’s just all, you know, kinda brainstorm about what kind of regulation we could be imposing here and what kind of law we’d need get Congress to pass to make it all legal. Or if you have any creative ideas on how we could get away with just making up the jurisdiction thing on our own, that’d be even better!”

YouTube, you’re first on the list of targets for the kind of online video regulation the FCC is hinting at here—and none too subtly. But why stop there? The FCC’s laundry list of complaints aren’t limited just to video, but could apply to essentially all online media. But this is all in the name of “protecting the children,” and Chairman Genachowski doesn’t want to regulate the Internet, so we really don’t need to worry—right?

Future of Media Notice of Inquiry

Most recently, in late January, the Commission launched the ambitiously-named “Examination of the Future of Media and Information Needs of Communities in a Digital Age.” The FCC asks a number of good questions about how government could get out of the way of media struggling to reinvent themselves in the digital era by scrapping outdated regulations. The inquiry also tips its hat to the vital importance of advertising in supporting media. But it’s otherwise pretty bad news as a harbinger of a “Chill Wind” for the future of a free press in this country, as Ken Ferree, PFF’s former president and current board member noted.

In particular, the Commission comes right out with a “trial balloon” about imposing public interest obligations on online operators—the very thing it hinted at slightly more delicately in the “Empowering Parents” inquiry mentioned above:

Broadcasters have certain public interest obligations, including that they provide programming responsive to the needs and issues of their communities and comply with the Commission’s children’s programming requirements. Cable and satellite operators have their own responsibilities…  Should such obligations be applied to a broader range of media or technology companies, or be limited in scope?

OK, so we’re not going to “regulate” online content operators; we’re just going to impose “public interest” obligations on them to provide certain kinds of content preferred by politicians. Right… and if Google News or YouTube don’t do enough to “serve the public interest,” what then? Will the Federal Search Commission take away Google’s search license or cloud computing license?

Of course, we don’t mean to suggest that even the “Federal Cloud Commission” would ever be so unsubtle as to create a formal licensing system when they can probably achieve the same ends with far less obvious regulation. But how is this all going to work, exactly? Again, this is exactly the kind of hopelessly vague regulatory morass Congress had in mind when it declared that the federal government would avoid “fettering” the “vibrant competitive free market … for the Internet and other interactive computer services” with regulation.

The FCC goes on to revive the kinds of broad net neutrality ideas discussed above in asking:

How would policies related to “open Internet” or “universal broadband” or other FCC policies about communications infrastructure affect the likelihood that the Internet will meet the information needs of communities? Are there search engine practices that might positively or negatively affect web-based efforts to provide news or information?

In other words, “Tell us why and precisely how we should start regulating search engines in order to help ‘save  news.'” Google, here’s looking at you, kid! You want to keep your search license, dontcha? Well, just do what the nice men from Washington want and there won’t be any trouble.

Finally, the Commission opens the door to the noxious proposal for a “public option” for media, which Adam has lambasted. Here’s what the Commission says:

In general, what categories of journalism are most in jeopardy in the digital era? What categories are likely to flourish? While much is still to be determined as media companies test various business models and payment approaches in the coming years, based on what is known now, are there news and information needs that commercial market mechanisms alone are unlikely to serve adequately?

Don’t worry, it’s not as if government will exercise control over the media companies it funds if the media-socialist fantasies of the neo-Marxist Robert McChesney and his ironically-named “Free Press” group actually come true. Nope, government’s just here to help!

We’d all do well to remember that subsidies always come with strings attached—namely, regulation. That’s the Golden Rule: “He who has the gold, makes the rules!”

Conclusion

Chairman Genachowski, with all due respect, if you don’t like people suggesting that the FCC may be positioning itself to regulate the Internet and digital media platforms, then you might want to take a careful look at what your agency has been doing. You should think hard both about the precedents that will be set by “neutrality” regulation for online content and services, and also about the quasi-regulatory effect that your agency’s flurry of open-ended inquiries will have on the operators you claim not to want to regulate.

What will future Chairmen do with these precedents? What will emerge from every “Pandora’s Box” you’ve opened with each new sweeping inquiry? The answer, we fear, is an endless parade of new Internet regulations—and the death by a thousand cuts of real Internet freedom.

Can the Federal Communications Commission (FCC) just do anything it wants? If it wants to bring the entire Internet under its thumb, or regulate any speech uttered over electronic media, can it just do so on a whim? The agency’s recent actions on the Net neutrality and free speech fronts seems to suggest that the agency thinks so.

I don’t need to rehash here what the FCC has been up to on the Net neutrality front.  Most everyone is familiar with how the agency has essentially been trying to invent its authority to regulate out of thin air.  If you want the whole ugly history of how this charade has unfolded over past few years, I encourage you to read these amazing comments filed today in the FCC’s net neutrality NPRM proceeding by my PFF colleague Barbara Esbin.  Barbara simply demolishes the FCC’s argument that it can do anything it wants under the guise of its “ancillary jurisdiction.” As Barbara argues in her comments, the FCC’s position “is akin to saying that the FCC can regulate if its actions are ancillary to its ancillary jurisdiction, and that is one ancillary too many.”  She notes that:

The proposed rules regulating the services and network management practices of broadband Internet providers must rest, if at all, on the Commission‘s implied or ancillary jurisdiction and the NPRM fails to provide a basis upon which the exercise of such jurisdiction can be considered lawful.

She shows how farcical it is for the FCC to concoct its supposed authority to regulate from provisions of the Communications Act that have nothing whatsoever to do with Net neutrality or even expanding regulation in general. Specifically, the agency’s reliance on sections 230(b) and 706(a) of the Telecommunications Act of 1996 is completely outlandish.  Anyone who knows a lick about telecom law and the nature of those two sections understands they were never intended to serve as the basis of an expansive new regulatory regime for the Internet. As Barbara puts it:

This exercise—searching for snippets and threads of regulatory authority over a communications medium as significant as the Internet in multiple, unrelated statutory provisions—should signal to the Commission that no credible source of authority to regulate Internet services exists.

All I have to say is, thank God for checks and balances. I believe the courts will put a stop to this nonsense, but it will take some time.  Until then, I suppose the FCC will continue to act like a rogue agency, hell-bent and tossing the constitution to the wind and concocting asinine theories about why they should be allowed to do anything they want. But there are signs that the courts are ready to start holding the FCC more accountable.

If you want some concrete proof, Exhibit A would be the recent D.C. Circuit Court of Appeals oral arguments in the Comcast v. FCC case, which involves the FCC’s assertion of Net neutrality authority from vague “principles” it laid down a few years back. The headline from Wired about the court arguments really says all you need to know: “Court to FCC: You Don’t Have Power to Enforce Net Neutrality.”  Indeed, by all accounts, things did not go well for the agency. “No decision has been made yet,” reports Tony Bradley of PC World, ” but, if Friday’s arguments… are any indication, it doesn’t appear that the FCC will prevail in exerting its authority over Comcast.”

Exhibit B would be the stunning oral arguments that the Second Circuit Court of Appeals in New York heard this week in the remand hearing of the case Fox Television v. FCC. You have to watch this video of the arguments to appreciate just how fed up some judges are with this agency.  It is like nothing else I have ever seen.  Andy Schwartzman of Media Access Project described it as “a slaughter,” and an unnamed source told John Eggerton of Broadcasting & Cable, “To say that the justices were extremely skeptical of the FCC’s application of the indecency law from a constitutional perspective in this case is an understatement.”  I’ll say.  Watch it yourself to see.

Meanwhile, as I’ve been writing here lately, the FCC is busy trying to expand or invent new authority to regulate digital media and online safety issues in its “Child Safe Viewing Act” and “Empowering Parents and Protecting Children” proceedings. The agency also recently began looking at cloud computing, forcing me to wonder, “Is the FCC Becoming the Federal Cloud Commission?”  And then there was the Commission strong-arming of Apple about the iPhone app store process. Who knows where that authority came from.  Finally, just yesterday, the FCC launched a new inquiry into privacy issues — get this — as part of its National Broadband Plan! The agency is asking for public comment about “the use of personal information and privacy in an online, broadband world.” (Someone should probably call the Federal Trade Commission and let them know that that there is a new sheriff in town!) Again, no word where the FCC’s authority to do any of this comes from.  When it comes to statutory authority, it’s an ‘anything-goes’ world over at the FCC these days. They just make it up as they go along.

Simply put, the FCC is out of control and I sincerely hope the courts rope it back in soon. If the agency wants the authority to regulate in any of these areas, it should go to Congress and ask for it.  That’s how things are suppose to work in a constitutional republic.  Until then, FCC officials should stop behaving as if they are above the law.

On Friday, the Federal Communications Commission (FCC) released a new Notice of Inquiry entitled, “Empowering Parents and Protecting Children in an Evolving Media Landscape” (MB Docket No. 09-194).  The purpose of this investigation is to:

seek information on the extent to which children are using electronic media today, the benefits and risks these technologies bring for children, and the ways in which parents, teachers, and children can help reap the benefits while minimizing the risks. (p. 2)… Our goal with this NOI is to gather data and recommend-ations from experts, industry, and parents that will enable us to identify actions that all stakeholders can take to enable parents and children to navigate this promising electronic media landscape safely and successfully. (p. 3)

This Notice builds on the FCC’s August 31st Report to Congress (“Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming”) that was required pursuant to the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of that bill and the FCC’s proceeding (MB Docket No. 09-26) was to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.” [I filed 150+ pages worth of comments in that proceeding, and here’s my analysis of why the bill and the FCC’s proceedings are worth monitoring. In previous posts here, I also listed all the major filings and reply comments that were submitted to the FCC in the matter.]

While the FCC’s new Notice outlines several positive impacts that media use may have for children, it then goes on to itemize a variety of concerns about media exposure:

While we recognize that electronic media technologies offer these potential benefits to children, we also explore the risks of harm that media use presents. As discussed below, these risks include (i) exposure to exploitative advertising; (ii) exposure to inappropriate content (such as offensive language, sexual content, violence, or hate speech); (iii) impact on health (for example, childhood obesity, tobacco use, sexual behavior, or drug and alcohol use); (iv) impact on behavior (in particular, exposure to violence leading to aggressive behavior); (v) harassment and bullying; (vi) sexual predation; (vii) fraud and scams; (viii) failure to distinguish between who can and who cannot be trusted when sharing information; and (ix) compromised privacy. We seek comment on these risks, whether parents, teachers, and children are aware of them, and what can be done to protect children from them.

It’s not really clear to me where the FCC finds the jurisdictional authority to investigate some of these things (hate speech? bullying?), but let’s not worry about that here. The question a lot of folks — especially those with strong First Amendment leanings — will be asking is: Where is the FCC heading with this in terms of new speech controls or content regulation?

In my earlier work on the “Child Safe Viewing Act,” I worried that the bill and resulting FCC investigation might be the beginning of “convergence-era content regulation.” I was pleasantly surprised, however, with the FCC’s final Report to Congress about the Child Safe Viewing Act, which did a very nice job highlighting the amazing diversity of parental control tools and methods on the market today.  That being said, the proceeding noted that “no single parental control technology available today works across all media platforms” and might have left the impression in minds of some critics that it was somehow possible to create a “universal” parental control or rating mechanism to deal with content across platforms.

Not only is it highly unlikely that such a silver-bullet solution is possible, but it’s unclear that it is even desirable.  I spent some time addressing this issue in my big filing to the FCC earlier this year.  If you jump to pg. 98 of my filing, you will find a section on “The Perils of Mandatory Controls, Restrictive Defaults or ‘Universal’ Ratings.” In it I argue:

the search for technological silver?bullet solutions and “universal” ratings or controls represents a quixotic, Holy Grail?like quest. Simply stated, if it sounds too good to be true, it probably is. There are no simple solutions or quick fixes to concerns about objectionable media content or online child safety. Only a “layered” approach—involving many tools, methods, and strategies—can get the job done right. And technological blocking controls are probably the least important part of that mix. Education and mentoring are far more important. Moreover…  any move to force “universal,” top?down solutions could destroy future innovation in this space. [There are] unforeseen downsides to mandating controls and defaults as well as efforts to create universal rating or labeling schemes.

Again, to be clear, the FCC’s final report to Congress did not recommend any such thing, and the agency is to be commended for that.  But, at the end of the Child Safe Viewing Act report to Congress, the agency also noted that another Notice of Inquiry would dig a little deeper into possible solutions, and now here it is.  But it still remains unclear where the FCC might take this in terms of concrete steps. I was pleased to see a strong focus on the importance of education and media literacy in the agency’s latest notice, so that’s very good news. But there’s also plenty of hand-wringing about the supposed negative impacts of media throughout the report, which leads one to believe that the agency isn’t going to just settle for education-based solutions.

Importantly, there’s also a lot of talk about the supposed dangers of advertising to children in the new Notice:

Exposure to excessive and exploitative advertisements is a significant risk children face from electronic media. Advertisements of particular concern for children include: (i) those that promote products specifically to children; (ii) those that promote unhealthy food, thereby contributing to childhood obesity, and (iii) those that contain inappropriate content, such as offensive language, sexual content, and

This is actually one area where the FCC does have a little jurisdictional authority under the Children’s Television Act of 1990. But I don’t see how the agency can read that statute, which was intended for broadcast television, too broadly.  Regardless, if I had to bet on one thing we are certain to see come out of this proceeding, I’d say some expanded advertising restrictions are in the works.  But, again, the agency’s limited jurisdiction makes it hard for me to understand where they plan to go with this or how it would pass muster in the courts once challenged.

Anyway, stay tuned. Comments in the matter are due to the FCC by late December.  Meanwhile, one wonders how long it will be before Sen. Rockefeller and others up on Capitol Hill start to engage more on content-related issues.  They’ve been fairly silent so far this year.  In light of Sen. Rockefeller’s past efforts on this front, it seems likely he’ll eventually engage in this debate — and likely in a very pro-regulatory fashion.

As I mentioned in a post last month, dozens of comments were filed with the Federal Communications Commission (FCC) as part of the agency’s “Child Safe Viewing Act” Notice of Inquiry.  Again, this proceeding was required under the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of the bill and the FCC’s proceeding (MB 09-26) is to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.”  I filed 150+ pages worth of comments in this matter, and here’s my analysis of why this bill and the FCC’s proceeding are worth monitoring closely.

Anyway, this week saw many of the same groups that filed before (and some new ones) file reply comments about those earlier submissions.  To make things simple, I have collected most of the notable reply comments down below in case anyone is interested.

• Association of National Advertisers
• American Legislative Exchange Council
• Children’s Media Policy Coalition
• Coalition for Independent Ratings
• Comcast
• Consumer Electronic Association
• Digimarc
• Electronic Frontier Foundation
• Entertainment Software Association
• Funai Electric Co.
• ION Media Networks
• Microsoft
• Motorola
• NAB, NCTA, & MPAA
• Nintendo
• Parents Television Council
• Smart Television Alliance
• TiVo
• T-Mobile
• TV Guardian

The Federal Communications Commission (FCC) has just released a Notice of Inquiry (NOI) in the matter of “Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming.” (MB Docket No. 09-26)  This NOI was required by S. 602, the “Child Safe Viewing Act of 2007,” which Congress passed last October and President Bush signed into law on December 2nd.  The measure requires the FCC to examine:

(1) the existence and availability of advanced blocking technologies that are compatible with various communications devices or platforms; (2) methods of encouraging the development, deployment, and use of such technology by parents that do not affect the packaging or pricing of a content provider’s offering; and (3) the existence, availability, and use of parental empowerment tools and initiatives already in the market.

The Act defines the term “advanced blocking technologies” as “technologies that can improve or enhance the ability of a parent to protect his or her child from any indecent or objectionable video or audio programming, as determined by such parent.”  Importantly, the Act also directs the agency to look into blocking technologies that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms” and which “operate independently of ratings pre-assigned by the creator of such video or audio programming.”   The Act requires that the FCC issue a report to Congress about these technologies no later than August 29, 2009.

When writing about the Child Safe Viewing Act shortly after its introduction in the summer of 2007, I noted that the measure potentially represented the beginning of “convergence-era content regulation” at the FCC.  Those two clauses highlighted above are of particular importance in that regard.  Congress has essentially invited the FCC to engage in unprecedented oversight of media platforms and ratings systems that the agency previously had very little ability to influence. 

First, the Act’s stipulation that the FCC examine advanced content blocking technologies that “operate independently of ratings pre-assigned by the creator,” seems to imply that existing voluntary rating and labeling systems cannot be trusted. That is a dangerous presumption that suggests the FCC might be able to come up with better media ratings on its own. But the fact that the agency has been empowered to look into rating systems for media content outside its area of authority (ex: movies, mobile media, online video) means that the agency might now be potentially placing greater pressure on media providers and distributors in those fields to “clean up” their content that same way that the agency pressures TV and radio broadcasters.

Similarly, the Act’s requirement that the agency look into blocking technologies on “wired, wireless, and Internet platform” is an open-ended invitation for the FCC to oversee content on platforms and mediums that the agency previously had no control over.  This clause on page 4 of the FCC’s NOI is telling in that regard:

The Senate Report also explains that the Act requires the Commission to consider technologies that may be appropriate across a variety of content distribution platforms “[i]n recognition of the fact that television content is currently being made available over the Internet and over mobile devices.” This language suggests that Congress intended that we focus on television content and the variety of platforms over which such content can be displayed and consider technologies capable of blocking inappropriate audio or video content transmitted as part of such programming.

In some ways, this makes all the sense in the world. The fact that Congress and the FCC have long been engaged in the regulation of content by its means of transmission to the viewer or listener has always been a bit silly. Basing regulation on what Randy May has called “techno-functional constructs” has resulted in a jurisprudential Twilight Zone in terms of speech regulation: identical words and images transmitted over one medium end up being regulated different than when transmitted over another. (See my article “Why Regulate Broadcasting?” for more discussion.)  Traditionally, this has meant broadcasting drew the short straw when it came to First Amendment treatment, with their analog signals or digital bits being deemed worthy of less First Amendment protection than the signals or bits transmitted over cable, satellites, fiber, or even print media.

As lawmakers increasingly realize that an age of media abundance and technological convergence has made those silly techno-functional constructs even more preposterous, we can expect Congress to introduce more legislation like the Child Safe Viewing Act and encourage FCC scrutiny of content regardless of its means of transmittal.  But such proposals raise a number of interesting questions, including:

(1) Does the FCC have the statutory authority to be regulating (or even investigating) speech on those other platforms?  What are the First Amendment issues at stake here?

(2) Assuming it has some authority, if the FCC finds that “advanced blocking controls” are not present, or do not work effectively, what remedies would the agency pursue?  (Can you say “universal ratings”?)

(3) Just what sort of resources will be required to allow the FCC to police all “wired, wireless, and Internet platforms”?

I don’t want to go overboard here and suggest that the agency is going to jump right onto the censorship bandwagon and start regulating everything under the sun thanks to S. 602.  Again, to be clear, the Child Safety View Act only authorizes the agency to study to market for advanced blocking tools.  It’s hard to argue against “the study” of anything.  But what concerns me here is the specter of regulatory creep. As I concluded in an earlier essay about the measure:

We have to hope that the FCC doesn’t use this “study” as an excuse to undermine existing voluntary parental controls and private content rating efforts or, worse yet, embark on an effort to impose new speech controls or mandatory rating and labeling schemes on media content. If they follow that path, a serious First Amendment battle awaits.

Is that a valid concern, or am I over-stating things? Well, consider this.  Between pages 15-20 of the NOI, in a section on”Content Available over the Internet,” the agency poses dozens of questions about new digital technologies and services including: Hulu,YouTube, TiVo, iTunes and the iPhone, iPod and Mp3 players, peer-to-peer networks, wi-fi hot spots, Teen Second Life, and even video game consoles.  In fact, on page 16 of the NOI the agency asks: “What impact, if any, does the interface between video gaming systems and the Internet have on children’s online safety?”  It’s certainly a legitimate question for public debate, but is anyone else besides me uncomfortable with the fact that the Federal Communications Commission is asking it?  If, like me, you’ve spent you’re life fighting over-zealous FCC content regulation, then you might appreciate my concern.  Will the FCC soon be fielding complaints about the next installment of “Grand Theft Auto”?  Are uncensored “Saturday Night Live” clips on Hulu suddenly going to be subjected to broadcast TV-like indecency fines?  Is my iTunes podcast fair game for federal regulators?  Again, I hope none of this paranoia is justified, but I think there are reasons to be concerned.

The more constructive path forward for the FCC is to help highlight the useful tools and rating systems already on the market and encourage parents to take advantage of them if they feel so compelled. As FCC Commissioner Jonathan Adelstein noted in his statement about the NOI, “Blocking technology strikes a balance beneficial to all parties involved: it allows us to protect our children while respecting the creative and expressive rights of content creators.”  Indeed, as I have argued in my book on “Parental Controls and Online Child Protection:”

The ideal state of affairs, therefore, would be a nation of fully empowered parents who have the ability to perfectly tailor their family’s media consumption habits to their specific values and preferences. Specifically, parents or guardians would have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Importantly, those tools and methods would give them the ability to not only block objectionable materials, but also to more easily find content they feel is appropriate for their families.

If the FCC can help build public awareness about such user-empowerment tools, that’s wonderful. I’m all for that. But it’s what the agency might do above and beyond that which has my spider sense tingling.

Anyway, you can read the bill and the NOI below and judge for yourself. [Note: The version of S. 602 below is the version passed by the Senate. The final version agreed to by the House stripped out Sec. 2, the findings section, and Sec. 3 became the new Sec. 2. For some reason, the GPO never produced a final PDF version of the bill as passed by the full Congress. If someone else has it, please forward it to me so I can post it here.]

S602 Child Safe Viewing Act http://d.scribd.com/ScribdViewer.swf?document_id=12963165&access_key=key-1uqqvj45uwpa1z9qihzq&page=1&version=1&viewMode=list

FCC NOI for Child Safe Viewing Act (MB 09-26) http://d.scribd.com/ScribdViewer.swf?document_id=12963105&access_key=key-12ctxrbeq6b7cuh98m6t&page=1&version=1&viewMode=list

Yesterday, the Senate passed S. 602, “The Child Safe Viewing Act of 2007,” which was introduced by Sen. Mark Pryor (D-AR) in February 2007. The bill requires the Federal Communications Commission (FCC) to study the market for “advance blocking technologies” (i.e., parental controls and rating systems) that parents can use to protect their kids from inappropriate content from various sources and platforms. On the surface, the measure seems harmless enough, but in practice, it could have some troubling long-term free speech implications if it leads to more government meddling with parental controls and ratings systems.

The measure requires the FCC to initiate a notice of inquiry to consider measures to examine:

1. the existence and availability of advanced blocking technologies that are compatible with various communications devices or platforms;
2. methods of encouraging the development, deployment, and use of such technology by parents that do not affect the packaging or pricing of a content provider’s offering; and
3. the existence, availability, and use of parental empowerment tools and initiatives already in the market.

That all sounds harmless enough. Indeed, such a study could produce some useful information about the state of the parental controls marketplace.  (Of course, I could save them some taxpayer dollars and just send copies of my big Parental Controls & Online Child Safety report to all FCC officials!)

But it’s what comes next in the bill that causes me some heartburn. As part of the review mandated by the bill, S. 602 commands the FCC to “consider advanced blocking technologies that”:

1. may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms;
2. may be appropriate across a wide variety of devices capable of transmitting or receiving video or audio programming, including television sets, DVD players, VCRs, cable set top boxes, satellite receivers, and wireless devices;
3. can filter language based upon information in closed captioning;
4. operate independently of ratings pre-assigned by the creator of such video or audio programming; and;
5. may be effective in enhancing the ability of a parent to protect his or her child from indecent or objectionable programming, as determined by such parent.

I have highlighted the two provisions that are cause for concern since they raise the specter of what I referred to as “convergence-era content regulation” in a PFF paper about the bill last year.  Let me explain.

Regarding that first provision, here’s how I stated my concern in my old paper:

In demanding that regulators investigate and consider requiring blocking technologies for “wired, wireless, and Internet platforms,” the measure potentially opens the door to the beginning of convergence-era content regulation at the FCC. The agency currently has no authority to regulate content (or parental control technologies or rating systems) on most media or communications platforms outside of broadcasting, and its authority over broadcasting is limited. But S. 602 would potentially give regulators the ability to begin expanding the horizons of federal content regulation. One wonders what sort of resources the FCC would need to carry out this task. After all, we’re talking about numerous platforms and a potentially enormous volume of content. The FCC would likely need a small army of regulators to ensure that all “wired, wireless, and Internet platforms” were in compliance with the law. Will there be a specific team of FCC officials devoted to monitoring advanced blocking mechanisms for the official websites of major media operators? What about YouTube.com, MySpace.com and other major websites that host both user-generated content and professional media content? What about the new media platforms and content that mobile operators are offering? Many advanced blocking tools already exist to screen or filter online content, but whether other types of regulation could be required under S. 602 remains unclear. Moreover, the global reach of many of these online platforms raises other enforcement issues.

Second, regarding the second provision I highlighted above (about “independent ratings”), here again is how I stated my concern in my paper:

in specifying that these new advanced content blocking technologies should “operate independently of ratings pre-assigned by the creator of such video or audio programming,” S. 602 seems to imply that existing voluntary rating and labeling systems cannot be trusted. That is a dangerous presumption. Existing rating and labeling systems, while not perfect, are well-established and comprehensive. It is simply unrealistic to expect that all new advanced content blocking technologies will operate independent of existing rating and labeling systems, such as the television rating system, the MPAA movie rating systems, and the video game industry’s ESRB rating system. It is important to realize that these systems rate and label almost all the entertainment content produced in their respective fields. While third-party rating systems can supplement these official industry rating schemes, it is unlikely those independent schemes will ever be as comprehensive as the official industry systems. More importantly, existing blocking tools on the market today, such as the V-Chip and cable and satellite set-top boxes, rely on those official rating and labeling systems, which most Americans are already familiar with. It is unrealistic to expect all new consumer media devices to employ alternative blocking schemes or be able to read independent rating systems. Thus, it remains unclear what that sponsors of S. 602 are hoping to accomplish by specifying that new blocking systems “operate independently of ratings pre-assigned by the creator.” Regardless, the real danger here is that that language could fuel a push for “universal” media ratings that would be imposed by the government or a third-party which has the government’s blessing. It goes without saying that such a proposal would raise serious First Amendment concerns. But, even setting aside the clear First Amendment concerns, there is no practical reason to believe that the government could actually do a better job of assigning ratings or creating parental control tools. If the government were responsible for assigning content ratings or labels, for example, five unelected bureaucrats at the FCC or some other regulatory agency would simply substitute their own values for those of the voluntary rating boards or other labeling organizations in existence today.

Importantly, however, the version of S. 602 that the Senate passed was amended before being voted out of the Senate Commerce Committee on August 2, 2007. The amended version made a few important wording changes to the original version of the bill. Specifically, the Senate Commerce Committee struck the phrase that specified the FCC would have the power ” to encourage or require” the use of advanced blocking technologies.  Needless to say, that’s a very important deletion since it means that S. 602 hasn’t granted the FCC sweeping new powers to require the creation of content controls or ratings systems.  It’s one thing for the FCC to study the marketplace of existing controls and ratings systems. It’s quite another for the agency to get actively involved in the business of mandating or regulating those controls or rating systems.

Sen. Pryor and his Senate colleagues are to be commended for avoiding direct content regulation and instead focusing on empowering families to make media consumption decisions on their own. Nonetheless, in an attempt to empower parents it is important that Congress not empower regulators instead.  S. 602 opens the door to an expansion of the FCC’s authority over media content on multiple platforms and threatens to undermine private, voluntary rating systems in the process.  There are better ways to help parents and protect kids.

Further reading / sources:

• The Senate-passed version of S. 602
• press release from Sen. Mark Pryor about Senate passage
• article by Ted Hearn of Multichannel News about Senate passage
• my PFF white paper on the earlier version of the bill: “Convergence-Era Content Regulation? S. 602, The Child Safe Viewing Act of 2007“.