January 14, 2010
FOR IMMEDIATE RELEASE
Contact: Art Neill, Executive Director, New Media Rights, (619) 591-8870

New Media Rights and UCAN Support Federal Anti-SLAPP Law to Protect First Amendment Rights

“Coalition Seeks to Protect the First Amendment” 

San Diego, California – UCAN and New Media Rights have joined with the Federal Anti-SLAPP Project (FASP) and other organizations, which are working to secure federal protections for the First Amendment rights of petition and free speech.

SLAPPs – also known as “Strategic Lawsuits Against Public Participation” – are meritless lawsuits brought with the purpose to threaten, intimidate and silence free speech. The Citizen Participation Act (CPA) protects against SLAPPs by allowing the defendant of a meritless lawsuit arising from speech to have it quickly dismissed and to recover the fees, costs, and damages incurred in defending against it. The CPA also provides protection for anonymous Internet speech by requiring persons bringing these lawsuits to first demonstrate that the case has minimum merit.  This law protects those whose use their anonymity to avoid censure, harassment or worse at work, school, and in the community.

New Media Rights and UCAN have consistently supported the rights of citizen journalists to speak out on issues of public interest.  The CPA upholds this freedom of expression and preserves the willingness of people to express their views. 

“Although federal rules and doctrine provide some limited protection for public participation, we need comprehensive and uniform federal legislation,” explained FASP Legislative Director Samantha Brown. “Many states do have anti-SLAPP protections, but there is no uniform protection in place. This means that free speech, as well as the right to petition our government with grievances, depend on where a person exercises his or her First Amendment rights. Also, even in states that do have anti-SLAPP laws, federal and state claims in federal court may not be covered.”

Brown said, “It has been proven time and time again that honesty and accountability are directly tied to free speech, on the part of citizens, the media and elected officials. Lawsuits brought against people who speak pose as much a danger to speech and petition as any law banning such speech could.” 

Now is the time for Congress to secure the protections of the kind of citizen participation that creates a well-functioning, open, accountable democracy.  New Media Rights and UCAN urge Congress to enact the proposed Citizen Participation in Government and Society Act of 2009 to do just that.

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New Developments in the NBC-Comcast Merger

There has been a lot of unease expressed in the past few weeks from community media groups, media reform groups, entertainment journalists, tech policy writers and others about the now agreed upon Comcast and NBC merger. This week The New York Times reported that General Electric has reached a "tentative agreement" to buy Vivendi, a French media company that had a 20 percent stake in NBC Universal. This step in the negotiating process was apparently "crucial to completing the G.E.-Comcast deal". The Times article, "G.E. Pact with Vivendi Clears way for Sale of NBC", says that under the "current outlines of the agreement...Comcast would pour in billions of dollars in cash and its own cable channels for a 51 percent stake, while G.E. would hold an initial 49 percent and contribute about $12 billion in debt." Jeff Zucker is to remain chief executive of the venture according to Rueters.

On December 3, 2009, the merger was formally announced by the companies. Representative Henry Waxman (D-Calif.) said that the agreement "has the potential to reshape the marketplace. This proposal raises questions regarding diversity, competition, and the future of the production and distribution of video content across broadcasting, cable, online and mobile platforms. It is imperative that the FCC, the Justice Department, and the FTC rigorously assess whether this transaction is in the public interest".

Public interest groups plan to press the Obama Administration to enforce his campaign promises of reviving anti-trust enforcement. During President Obama's campaign he said, "I strongly favor diversity of ownership of outlets and protection against the excessive concentration of power in the hands of any one corporation, interest or small group."

The administration needs to consider that this media deal has far-ranging implications. A number of public interest groups are now calling for the administration to exercise their anti-trust authority and demonstrate disapproval of continued media consolidation "mega-mergers" as a breach of anti-trust laws.  The negatives incentives (ie. towards net neutrality and a fair content competition playing field) created buy a service provider like Comcast having such a far reaching content properties should be closely scrutinized.

What the merger entails

Data compiled by Free Press on the merger says that Comcast serves customers in 39 states and reaches 24 million homes. NBC Universal owns broadcast properties and cable channels like Bravo, CNBC, MSNBC, NBC Sports, Oxygen, and USA Networks. It also owns Universal Pictures as well as web sites including Hulu and Fandango. In Cecilia Kings's Washington Post Article, "A new kind of company, a new challenge for feds", Bernstien Research notes, "Comcast would be calling the shots for one out of every five viewing hours in the United States".

Public-interest groups warn that that this "mega-merger" will most likely mean higher prices, fewer choices, less diversity in content and less access for you the consumer. In Josh Silver's (executive director of Free Press) article "Too Big to Block? Why Obama must stop the Comcast-NBC Merger" he writes that if history repeats itself  "it will trigger a "merger wave" throughout the industry as distribution companies and content companies seek to "muscle up" to match the new threat that the vertically integrated Comcast poses". Media consolidation in the past has lead to fewer voices, viewpoints and less diversity in ownership and programming. Silver emphasizes that current anti-trust can and should block the NBC-Comcast deal for several reasons.

One big reason is that Comcast-NBC would control several distribution platforms including a major television network, the largest cable company and the largest internet service provider. "The merged company will have strong incentives and the market power to discriminate in granting access to its wealth of programming. It will have the incentive and market power to enforce anti competitive "bundling" and price-gouge other cable companies, especially smaller cable companies." An example of "anti-competitive bundling" would be putting Internet access to NBC programming behind a paywall that would force consumers who want to watch NBC online to buy a Comcast internet and television subscription. According to the New York Times article, "Web-TV Divide is Back in Focus with NBC Sale" Comcast has already used its power to limit how many shows are available in the past online and now owning part of Hulu it will be in their best interest to restructure Hulu, "the biggest site that threatens to undercut its core business".

Comcast creating problems locally

Marc Stier's blog cross-posted on Young Philly Politics argues that "Comcast like the rest of the cable industry is about monopoly". Comcast headquarters are located in Philadephia and Marc writes that Comcast's success has not come by being innovative or having good customer services, but from wielding political and economic power. "Here in Philadelphia Comcast has worked vigorously to deny other companies the right to wire the city. It has negotiated sweetheart deals with our city government that allow it to raise its rates even where there is no economic justification for doing so. And it has encouraged the city to stall for years on the requirement that Comcast contribute to public access TV in the city."

Comcast creates problems nationally and the FCC rules against them in 2008

In fact, Comcast doesn't have a great reputation servicing the public on the national level either. On August 1st, 2008 the FCC ruled against Comcast's BitTorrent blocking. At the time there were "at least five class-action lawsuits pending against Comcast as a result of its BitTorrent blocking". The FCC did not order a direct punishment but told Comcast that it would have to disclose details about it's current network management practices and stop interfering with traffic on peer-to-peer file sharing technologies. Kevin Martin, chairmen of the FCC said "If we aren't going to stop a company that is looking inside its subscribers' communications, blocking the communication when it uses a particular application, hiding what it's doing by making its consumers think that the problem is their own, and lying about it to the public, what would we stop?" to NPR news.

The significant thing that manifested from this case was it created more support around Net Neutrality as a tangible example of content and technological discrimination by an Internet Access Provider. Two democratic FCC commissioners — Jonathan Adelstein and Michael Copps — made it clear that they would also like to see new rules against discriminative behavior. Copps said a specific non-discrimination statement would ensure that “…the commission does not have a one-night affair with Net Neutrality.”  The debate on "Net Neutrality" is occurring simultaneously with the merger debate, and while the two issues will likely be "siloed"  and separated as much as possible from each other, robust Net Neutrality rules may actually be critical in addressing many of the deepest concerns raised by the merger.

The merger is certainly bad for the consumer and some argue even bad for our democracy (see Marvin Ammori's latest article "Comcast-NBCU Merger is Bad for Democracy" ) where he writes that there are three main reason why the merger is bad for democracy. "Targeted private censorship, closing out independents, favoring one-way Comcast-controlled communications. It is not routine business. The public should take note of this effect on our democracy." 

If you agree the merger is bad for innovation, business and democracy, you can Take Action against the Comcast-NBC merger by signing the Free Press petition and look out for local organizing efforts against the merger.

“Comcast eats GE, NBC owned by cable provider” by Flikr user Avatar/ΣΙΓΜΑ used under Creative Commons Attribution 2.0 license

“Comcast Center” by Flikr user Saturdave used under Creative Commons Attribution 2.0 license

“Comcast protest” by Flikr user Steve Rhodes used under Creative Commons Attribution 2.0 license

The FCC has released a proposed set of rules for an open and transparent internet, and awaits comments to its net neutrality proceeding in January. The purpose is noble, to protect the public from discriminatory practices by Internet Access Providers. For example, this would prevent an IAP from arbitrarily slowing down a customer's internet, merely because he or she is streaming movies or downloading large files, favoring a particular content provider or technology over another (nevermind that there is already typically a 3 tier system prioritzing, in this order, 1) voice calls 2) tv and 3) Internet on cable and fiber networks). While this is a great proposal in principle, we cannot overlook one important question: does the FCC actually have authority over the internet to make these rules?

A History Lesson

Empowered by Congress

Congress created the FCC through the Communications Act of 1934. The government wanted a single agency with broad authority to regulate interstate commerce in telephone and radio services.

Congress later passed the Telecommunications Act of 1996, restating the authority of the FCC. In response to an active and evolving telecommunications industry, the new Act further opened the markets to competition and removed unnecessary regulatory barriers to entry.

The FCC derives its power from Congress. Thus, it can only regulate what Congress has authorized.

Congress Did Not Carve Out Authority Over the Internet

Congress expressly granted the FCC authority over interstate communications in radio, television, wire, satellite and cable.

Congress did not intend the Internet to be regulated. Congress only mentions the internet twice in the Telecommunications Act, under sections 157 and 230.

Section 230 is a provision within the Communications Decency Act. The CDA attempted to protect minors from indecent and obscene materials online. In section 230(a)(4), Congress recognized that the Internet has "flourished...with minimum government regulation." Furthermore, in section 230(b)(2), the policy of the US is for an Internet "unfettered by state or federal regulation." As noted in Zeran v. America Online, Inc., the "Communications Decency Act (CDA) was enacted, in part, to maintain robust nature of Internet communication and, accordingly, to keep government interference therein to minimum." [italicized for emphasis]

Ancillary Jurisdiction

Even though the FCC does not have express authority over the Internet from Congress, the FCC claims that it has "ancillary authority."

Ancillary means that the power is additional or supplementary to the already authorized power. Even though this power is unauthorized, it is being used to enforce regulations that are already authorized.

The FCC is currently trying to assert ancillary authority over the internet in the Comcast v. FCC case. In this case, the FCC sanctioned Comcast for drastically reducing internet speeds of BitTorrent users. Comcast claims that as an ISP, the FCC has no authority to sanction it in the first place.

The FCC argues in its reply brief to Comcast that Congress gave the FCC comprehensive and expansive powers over new communication technologies. The FCC cites National Broadcasting Co., Inc. v. United States, in which the Supreme Court emphasized the importance of these powers in a field characterized by constant, rapid, and dynamic change. Broadband internet is a relatively new communication technology. Thus, the FCC reasoning goes, it has an implied power to regulate ISP's. (FCC reply brief, p 30)

Furthermore, The FCC also claims that courts have continually supported ancillary authority.

While courts have upheld ancillary authority, it has been limited to applications in which Congress has already expressly granted authority. For example, the FCC could have ancillary authority over telephone equipment because it has express authority over telephone service providers. Since there is not express grant over the Internet, it is less likely courts will broaden the authority to encompass it. Simply put, the authority cannot be ancillary because it is not additional or supplementary to an existing power.

Trojan Horse

Sure, Comcast should be ridiculed for its throttling of Bittorrent, but allowing the FCC to assert authority over the Internet using broad, ancillary jurisdiction may  cause greater problems down the road. The Electronic Frontier Foundation, despite their interest in an open and free internet, correctly suggests this acquiescence could be a dangerous Trojan horse. While users should have a open and transparent internet, perhaps the FCC is not the one who should regulate it, at least with so broad a reach as it may wish under its ancillary powers. A common example is that currently, the FCC can fine and punish television and radio stations for broadcasting indecent materials. The trojan horse argument asserts that there is nothing to stop the FCC from later turning its eye from an "neutral" internet and applying these same restrictions online. The internet is a place where people can find truly diverse and uncensored information. This must be preserved. Once the FCC is given the keys to the Internet, there is nothing to stop them from later locking all the doors and windows through stricter and harsher rules.

An easy way to picture this issue is to imagine the FCC as a crossing guard. The guard has been given authority to stop traffic throughout the city to protect pedestrians. However, the guard has not been given any authority over the open freeways. The guard claims authority over the freeways because it is implied in his job to protect the people and streets. The problem is that if we let him have this power now, it has dangerous future implications. The guard could later make the roads worse by enforcing more stops, forcing lower speed limits, and determining which cars cannot have access.

Ancillary authority exists, but not over the internet. If the FCC is to exercise jurisdiction over the Internet, clear guidance from Congress (is such a thing possible?) could be of use down the road to avoid a trojan horse.