Today I visited the Federal Communications Commission meeting room to attend a workshop on “Speech, Democratic Engagement, and the Open Internet.”  Honestly, I think I was stuck in the Twilight Zone, because from what the speakers at this ridiculously one-sided panel had to say: (1) the First Amendment means something entirely different than what the Constitution says; and (2) the whole Internet world is set to go to hell unless government intervenes and saves us a litany of corporate conspiracies to “silence” us.

Seriously, I thought the FCC was trying to make their broadband workshops and Net neutrality proceeding “balanced” and “evidence-based.” This one was neither.  One speaker after another regaled us with spooky stories and asked us to imagine how their particular group or service would be “blocked” or “silenced” unless Net neutrality regulations were put on the books.  But no evidence was offered supporting their scary tales.

By the time Michele Combs of the Christian Coalition got done breathlessly delivering her conspiratorial rant, for example, I half expected her to ask “What would Jesus do?” about Internet regulation.  She really laid it on thick, suggesting that ISPs were hell-bent (excuse the pun) on blocking Christian messaging across multiple platforms.  Yeah, cause it would be a brilliant business strategy to piss off tens of millions of Christians in this country. Sure, that makes a lot of sense.

Similarly, a woman from an online video company spoke of “gatekeepers” and “filters” that were supposedly lurking around the corner that would shut her down. But no evidence was presented supporting that fear. Instead, she asked us to believe Big Brother was coming in the form of private ISPs and that the “filters” would be imposed on us were private ones, not governmental. Uh-huh.

Popular blogger Glenn Reynolds had plenty of tales of impending doom of his own as did a couple of other minority-oriented site providers who testified. Lots and lots of spooky stories were told but, again, no evidence was offered that ISPs were currently doing anything to hurt their businesses or speech.  I sure would have liked to hear Glenn at least develop a theory about why ISPs would want to block his blog and millions of others like his. After all, it’s really hard for me to understand how they’d make any money by blocking content and angering all their customers.

Then there was Jack Balkin of Yale Law School and Andy Schwartzman of the Media Access Project who, as they have always done, told us that the First Amendment was a club that government could use to basically beat private media providers into submission. (Funny, because I always thought “Congress shall make no law…” was a pretty clear statement.  But perhaps I missed some footnotes in the Constitution.) Like the other panelists, they told spooky stories of their own about how ISPs would not allow “participation” in the “new town square.”  At least Andy tried to cite some evidence to back up his scary tales, but it was the same rehashed stuff from the past. Seriously, how many times can someone say “Madison River” without getting bored?

The only thing missing from the event was an appearance by Stephen King to do a reading from his forthcoming books: “ISPs Kitten Killers” and “How Broadband Providers Stole Our Souls and Sent Us to Hell.”  Perhaps the agency can invite him next time.

The token opposition to all this insanity was Robert Corn-Revere, one of America’s greatest living defenders of the First Amendment.  Thankfully, Bob was able to take some time out of his busy court schedule – since he spends much of his life in court fighting various FCC efforts to control speech – to come to the FCC and set the record straight on the true meaning of the First Amendment and the dangers of empowering federal regulators to oversee online content more generally.  Bob cited a litany of history examples – and these would be the only actual facts that made an appearance at this particular FCC event – showing how it is GOVERNMENTS, not private actors, who have historically been the primarily threat to our freedom of speech and expression. Bob reminded the crowd that, over the past 15 years, Congress has tried continuously to impose speech controls on the Internet and impose a host of other content-based regulations.

In conclusion, I just want to repeat to those FCC officials who care: This was one of the most insanely one-sided panels I have ever seen in my life and it was in no way, shape, or form “evidence-based.”  At least panel moderator Stuart Benjamin had the courage to push back against the conspiracy theories and ask a couple hard-nosed questions to bring the semblance of balance to the event. But if our broadband plan and Net neutrality rules are built on the sort of conjectural harms, scary stories, and a completely contorted view of the First Amendment that we heard at the FCC today, then God help us all.

PS: FCC Commissioner Robert McDowell delivered some excellent remarks to kick off today’s session that are well worth reading.

PFF has just released the transcript of an excellent panel discussion I moderated last week entitled, “Let’s Make a Deal: Broadcasters, Mobile Broadband, and a Market in Spectrum.”  As I’ve mentioned here before, one of the hottest issues in DC right now is the question of broadcast TV spectrum reallocation.  Blair Levin, who serves as the Executive Director of the Omnibus Broadband Initiative at the Federal Communications Commission, recently raised the possibility of reallocating a portion of broadcast television spectrum for alternative purposes, namely, mobile broadband. Such a “cash-for-spectrum” swap would give mobile broadband providers to spectrum they need to roll out next generation wireless broadband networks while making sure broadcaster receive compensation for any spectrum they hand over.  The FCC just recently released a public notice on “Data Sought on Users of Spectrum,” (NBP Public Notice # 26) that looks into the matter. “This inquiry,” the agency says,” takes into account the value that the United States puts on free, over-the-air television, while also exploring market-based mechanisms for television broadcasters to contribute to the broadband effort any spectrum in excess of that which they need to meet their public interest obligations and remain financially viable.” Meanwhile, the House Energy and Commerce Communications Subcommittee is set to hold a hearing on the issue next Tuesday.

PFF’s panel discussion on this issue featured an all-star cast of characters, including opening remarks by Blair Levin, and a terrific discussion ensued. [You can hear the full audio from the event here.]  Down below I have highlighted some of the major points each speaker made during the discussion and also embedded the complete transcript in a Scribd reader.  Also, just a reminder that my PFF colleague Barbara Esbin and I authored a short paper on this issue recently: “An Offer They Can’t Refuse: Spectrum Reallocation That Can Benefit Consumers, Broadcasters & the Mobile Broadband Sector.”

• Blair Levin, Executive Director of the FCC’s Omnibus Broadband Initiative, began the discussion by describing how additional spectrum will be needed to expand wireless broadband and why spectrum currently held by broadcasters would be a good option.  In addition to identifying spectrum that has the technical qualities to support broadband, he explained, “You also would look at things like where there’s an economic gap between the current use and potential wireless use.  You would want to look at bands where maybe there are regulations which constrain the market mechanism.  You also might want to look at bands where you can have a meaningful reallocation of spectrum while, nonetheless, preserving current uses.”
• Coleman Bazelon, Principal at The Brattle Group, presented findings from his recent paper on the value of spectrum currently held by broadcasters if it was reallocated to commercial mobile or wireless broadband uses. “This analysis shows that there are significant gains from reallocating the broadcast band, and I think the takeaway should be that there are significant gains, not that its $42 billion or $51 billion, but that its tens and tens of billions of dollars,” Bazelon stated.
• David Donovan, President of the Association for Maximum Service Television, Inc., questioned the estimates of the additional value of broadcast spectrum that could be gained if it was auctioned for other uses.  “If you are valuing over the air television broadcasting and its importance to the American public, using a snapshot based on an auction valuation at a particular point in time is really highly inappropriate,” he stated. “The business model of broadcasting is heavily regulated. … and that defines, of course, the value, just like heavy zoning defines the price of land.”
• Kostas Liopiros, Principal of The Sun Fire Group, discussed the technical feasibility of using various blocks of spectrum for wireless broadband use.  “Only additional spectrum can produce the required gains of capacity in the future, but if the gains capacities are oriented towards wireless broadband, for national wireless broadband capability, you need to focus on the right type of spectrum,” he explained.
• John Hane, Counsel in the Communications Practice Group of Pillsbury Winthrop Shaw Pittman LLP, warned of the legal difficulties of modifying broadcast licenses.  “Extinguishing licenses requires a hearing, potentially hundreds of them, each one affecting one or more Congressional districts.”  Although the FCC is able to modify a license without the licensee’s consent, he continued, “that is a very long and complicated process with an uncertain time frame.  If there really is a spectrum crisis, the stick approach …is not going to solve it very fast.”
• Paul Gallant, Senior Vice President of Concept Capital, discussed the possible effects of Congress involvement in auction of broadcast spectrum.  If broadcasters are reluctant to modifying their business model, Gallant explained, it might be beneficial for them to have Congress involved in such a deal.  However, he warned that Congressional involvement could also result in uncertainty for the broadcasters.  “It is not clear, if Congress does pass a bill, whether broadcasters come out better or worse than they would if they had worked something out with the FCC.  The main reason is there is tremendous budget pressure in Congress today.  They are looking for new sources of revenue,” Gallant explained.
• Andrew Jay Schwartzman, President and CEO of Media Access Project, expressed that he was resistant to the idea of auctioning spectrum.  “It isn’t property,” He stated.  “They favor incumbents.  They’re rigged.  They don’t generate the revenues that OMB and Congress seem to think they will.” He also warned of the possible impact of auctions on innovation. “Auctions lock in existing technology and near-term foreseeable technology. The people who are able and willing to bid are basing it on technology that they know they can generate and that does not allow the spectrum to be used in better ways coming down the road.”

Transcript of Dec 1 PFF Event on Broadcaster TV Spectrum Reallocation [PFF – Thierer] http://d1.scribdassets.com/ScribdViewer.swf?document_id=23980532&access_key=key-wdpoolnrm5gxq1xu7c6&page=1&version=1&viewMode=list