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

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.

In a recent PFF paper I argued that “We Are Living in the Golden Age of Children’s Programming,” and showed how, despite incessant complaints by many policymakers:

the overall market for family and children’s programming options continues to expand quite rapidly. Thirty years ago, families had a limited number of children’s television programming options at their disposal on broadcast TV. Today, by contrast, there exists a broad and growing diversity of children’s television options from which families can choose.

I then documented there and in my book, Parental Controls & Online Child Protection:

• the many excellent family- or child-oriented networks available on cable, telco, and satellite television today;
• the growing universe of religious / spiritual television networks;
• the many family or educational programs that traditional TV broadcasters offer; or
• the massive market for interactive computer software or Internet websites for children.

And every time I turn around I find another great show, service, or site for families to choose from.  Earlier today I highlighted the excellent new online video search service, Clicker.com, which is essentially a “TV Guide for the Internet.”  It is absolutely awesome and I highly recommend you play with it. You’ll be instantly hooked if you are TV junkie.

Better yet, Clicker.com offers a wonderful compendium of kid- and family-oriented video programming options. Although the site is still fairly new, you can already find 660 shows and almost 5,000 unique episodes of kids programming there.  A lot of it is just good ‘ol fashion couch potato fare ranging from the old (The Jetsons, Fat Albert, The Flintstones, etc) to the new stuff that you’d find on various cable channels today.  But there’s also plenty of wonderful educational programming to be found on Clicker including shows like Arthur, Sesame Street (over 1,000 episodes), Martha Speaks, The Electric Company, Animal Exploration with Jarod Miller, Jonathan Bird’s Blue World, Postcards From Buster, Science on Brain Pop, Technology on Brain Pop, and more.

Although my kids aren’t really into TV, as they grow older, I bet they’ll be watching a lot more programming via services like Clicker.  Currently, my kids enjoy watching snippets of video via kid-oriented online search portals like KidZui and Glubble.  Such online walled gardens offer a safe place for parents to find terrific online content for their kids.   Bottom line: compared to the miserable state of affairs some of us faced growing up in the 1970s, kids and parents have never had it better in terms of the video programming options at their disposal.

Anyway, some of “kid-vid” issues — including potential expansion of the Children’s Television Act of 1990 — could be up for discussion in the FCC’s new proceeding, “Empowering Parents and Protecting Children in an Evolving Media Landscape” (MB Docket 09-194).  The FCC just tweeted about it here and I posted my thoughts on where the agency might be heading in this proceeding in this post last month.