New Media Rights speaking at LA Media Reform Summit on Saturday March 27th

On Saturday, March 27th Occidental College will be hosting the 3rd annual LA Media Reform Conference."sdmjcomp2"  by Flikr user xinyoureye  used under Creative Commons Attribution-Noncommercial-Share Alike 2.0 Generic

Art and Mera of New Media Rights will be speaking at the conference and we would love for you to be there, if you can make it.

Art will be speaking on "How the Law Empowers Citizen Media Creators: the Fair Use Doctrine and Creative Commons", highlighting how the law can be used by citizen media creators and those concerned with the current state of traditional media. Art will also be a panelist during the "Bridging the Abyss – The San Diego move toward citizen journalism" session. This panel will highlight New Media Rights work with citizen journalists as well as what San Diego News Network, Activist San Diego and Liberty One Radio are doing in San Diego to transform media for the better and put the power back into the people's hands.

Mera will be speaking on how individuals and groups can communicate net neutrality during legislative visits. How to frame your message to a legislator or staff member will be one part of the panel called "Communicating Net Neutrality". Mera will also be speaking on the "Bridging the Abyss Panel" discussing San Diego media reform, it's importance and the different ways our community can engage with this issue.

To see who else is speaking at the Summit check out the speakers HERE. Click here to Register for the summit. We hope to see you there !

Preserving Democracy

Also keep an eye out for news of a similar conference in San Diego this fall.

"sdmjcomp2" by Flickr user xinyoureye used under Creative Commons Attribution-Noncommercial-Share Alike 2.0 Generic

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New Media Rights offering paid filmmaking opportunity for San Diego filmmakers

 


Are you a San Diego filmmaker looking to change the world through film?

New Media Rights and UCAN are looking to hire a couple good filmmakers for a summer video project. Both organizations will be contributing to a video series and we would love to see if your skills are a good match for the project. An ideal candidate would be comfortable and knowledgeable using a camera. Shooting in different environments, knowing how to set up mikes and lights is important to the job, as well as good computer editing skills. We have Final Cut Pro in the office, that you can use. 

It is also very important that you have a strong interest in helping uncover consumer issues that San Diegans are faced with everyday. UCAN receives many calls a day about cell phone cramming, local money scams, financing schemes and concerns over increasing electricity and water rates. We aim to create videos about these important issues that are of excellent quality and bring these topics to the public in an educational and entertaining way.

Please fill out the following fields below if you are interested:

Filmmaking Video Opportunity Summer 2010

Please submit your information in this form. If you add a URL, website or youtube link within your cover letter or resume and we will make sure to take a look. 

   
   
   
   
   
   

Call us if you have any further questions and we will be in touch !

     

 

Please create an account for our site

You can collaborate within out NMR community and we will keep updated on our latest resources

 

"Shooting B-roll footage" by Flickr user Chris Doelle used under Creative Commons Attribution 2.0 license

"The Long Weekend" by Flickr user garryknight used under Creative Commons Attribution 2.0 license


Update: New Media Rights is always looking for more filmmakers to collaborate with. For the time being we have concluded our search for filmmakers on this project. Please sign up to the site and subscribe to our newsletter and we will be sure to keep you updated.

 

 

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Lenz court interprets and limits damages available under DMCA 512(f) for wrongfully issued takedown notices

The most recent decision in the Lenz saga (the YouTube video takedown of baby dancing to Prince’s “Let’s Get Crazy”) is really the first to discuss the types of damages available when a copyright owner sends a takedown notice for no reason.  Specifically, Lenz alleges that Universal violated 17 U.S.C. 512(f)  which says that a copyright owner who “knowingly materially misrepresents” that the material is infringing or was removed by mistake in a takedown notice “shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer . . . .” 

In an opinion by Judge Jeremy Fogel, the federal district court for the Northern District of California determined that “any damages” are not limited to substantial economic damages (monetary loss) – for example they may be available for First Amendment harms from loss of speech.  But, to recover damages they must have been proximately caused by the misrepresentation to the service provider and the service provider’s reliance on that misrepresentation.  Proximate causation, as opposed to “but-for” causation (i.e. when the driver was not speeding immediately preceding the accident but would not have been at the accident site at that moment but for his prior speeding), requires a more direct relation between the harm and the alleged harm-doer’s act and imposes a higher burden on the plaintiff. 

With respect to recovering costs and attorneys’ fees the court stated those incurred (even if the work is performed on a pro bono basis like it is in Lenz by the EFF) “prior to the institution of suit under § 512(f)” are recoverable.  For example, the costs of drafting and issuing the counter notice fall here. 

On the contrary, Judge Fogel determined that attorneys’ fees incurred after filing the 512(f) suit are excluded and governed by  17 U.S.C. § 505 which is the Copyright Act’s fee-shifting provision that allows courts to use discretion in awarding reasonable attorneys’ fees to the prevailing party.  According to Sam Bayard, “this ruling may drain much of the force out of 512(f) as a practical deterrent to abusive takedowns because automatic, post-suit attorneys’ fees are the only item of damages that could foreseeably get big enough to make big content owners uncomfortable.” 

So, while the portion of the decision noting that losses do not have to be substantial and economic to be recoverable as damages seems helpful to plaintiffs, when it is coupled with the uncertainty in recoverable attorney’s fees, requirement of showing proximate cause, and the already present requirement of showing the copyright owner acted with bad faith realistically make 512(f) actions difficult for plaintiffs like Lenz

 

Other blogs addressing this topic include:

Copyrights and Campaign by Ben Sheffner,

http://copyrightsandcampaigns.blogspot.com/2010/02/court-narrowly-construes-damages.html

 

Citizen Media Law Project,

http://www.citmedialaw.org/blog/2010/lenz-v-universal-music-court-limits-damages-recoverable-bogus-takedowns

 

Technology and Marketing Law Blob by Eric Goldman, http://blog.ericgoldman.org/archives/2010/02/standards_for_5.htm

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Exploring new experiments in journalism: Newsday paywall fails, while Spot.us lets readers decide what news to pay for

After months of speculation about new paywalls on the Internet, we are starting to get some picture of how paywalls are working out. Put simply, paywalls have not proven to be a successful model yet, and their application beyond a select few publications is questionable. As The New York Observer and countless other blogs have reported, Newsday has hit another rough patch, trying to get people to subscribe with added online fees. Newsday started charging $5 a month/ $260 a year for subscription. After three months of putting its site behind a paywall, Newsday has apparently attracted only 35 subscribers. Newsdays' website relaunch alone cost $4 million dollars and they have only made back $9,000 from their 35 new subscribers. Newsday counters that they offer free subscriptions to Cablevision and Optimum Online broadband service customers, which is why their subsciption numbers appear so low. Their representatives say that 75 percent of Long Island either has a Cablevision subscription or Optimum Cable. While Newsday's efforts to create a paywall for local Long Island news content may be struggling, there are a number of innovative news sites that are creating new ways for the public to both 1) pay for content and 2) add input to what stories are most important to us.

This week I interviewed Spot.us founder, David Cohn to hear about his outlook on paywalls and ideas on his new journalism venture. Spot.us is an innovative journalism venture, where independent journalists pitch their ideas and the public gives money for the stories that we want investigated. The news content focuses mostly on local news in the Bay Area and Los Angeles. David says that micro-lending sites like Kiva.org have been inspiration for applying a similar business model to new media journalism. Kiva.org is a person-to-person microlending website, where any entrepreneur can post their project and the public becomes their lenders. According to the Kiva.org, $1,097,375.00 has been lent this week and there have been 17,928 lenders made a loan, reinforcing the enormous potential of microlending. Spot.us has taken this brilliant idea and applied it to online journalism. On Spot.us, you can read about the journalist's experience to get a better understanding of his/her background. The site promotes transparency and accountability, on the part of the journalist and the public. The public is able to see the cost of stories including research, assistant researchers and other critical expenses which would help produce the full story.

One of the main reasons we don't receive great news information on a daily basis is that newsrooms do not supply the money to fund hard-hitting investigative stores. Cohn, a freelance journalist himself, knows how rare it is for the public to have imput in what stories make it to print. ".0001% of the news reading population sets the news agenda, editors." Spot.us shows the public that real journalism does cost and if the public prefers real news then we have to add capital to support it. One pitch is: Investor’s Club: Do the UC Regents Spin Public Funds into Private Profit? National-award winning investigative reporter Peter Byrne, would investigate the "very wealthy, politically powerful men" who "are fixtures on the regent's (University of California) investment committee, including Richard C. Blum (Wall Streeter, war contractor, and husband of U.S. Senator Dianne Feinstein), and Paul Wachter (Gov. Arnold Schwarzenegger’s long-time business partner and financial advisor)" adding that "the public needs to know who benefits from controlling the University of California’s $53 billion in Wall Street investments." The investigation is very timely considering the state's financial situation, and the thousands of students that have been active in protesting recent tuition hikes within the UC system.

Cohn says that Spot.us is "an experiment that has to be tried." Cohn believes that putting up a paywall might work for bigger, international papers like the Wall Street Journal, Financial Times and New York Times, but that more regional papers like the San Francisco Tribune should explore other options. Paywalls are "not a good idea for the flow of information" Cohn says. Indeed, they just create another barrier to information access. No one knows for sure the future of journalism, but it's crucial that we explore, experiment and evolve ideas on how we can receive, create, and interact with our news in smarter ways.

Journalism in 10: Students on the Future of Media

Source: The Nation online

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

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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Court appears ready to strike a blow against the FCC's net neutrality authority.

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DC Court of Appeals - Mr. T in DC - CC by ND 2.0

The U.S. Court of Appeals for the District of Columbia heard oral arguments last Friday for the Comcast v. FCC case. The court appeared unconvinced of the FCC's authority to assert its net neutrality principles.

Comcast is appealing a 2008 FCC enforcement action in which the FCC alleged Comcast throttled BitTorrent and other Peer-to-Peer programs of its users. The FCC claimed Comcast violated the FCC's net neutrality principles because this throttling did not constitute "reasonable network management."

Comcast has appealed the ruling, arguing that the FCC has no authority to enforce its net neutrality principles. Thus, Comcast contends that these principles are mere guidelines, not binding or enforceable rules.

In a previous blog, New Media Rights discussed the FCC's endeavor to promulgate rules for an "open and transparent Internet." While regulation is needed to ensure the integrity the internet, the FCC may not currently have the authority to do so.

The three judge panel in the Comcast case appears to be mining this question, as it consistently questioned the FCC about the source of power behind its net neutrality principles. As Judge Raymond Randolph apparently told the FCC, "You have yet to identify a specific statute.”

While oral arguments do not always predict how a court will decide, the judges' questioning regarding the FCC's authority suggests that Comcast has a real chance at getting a favorable decision. The effect of the decision will also strike a blow toward the FCC's ability to enforce its net neutrality principles, and shift the debate about net neutrality to Congress.

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The mega-merger of Comcast and NBC: a lethal marriage

New Developments in the NBC-Comcast Merger“Comcast eats GE, NBC owned by cable provider” by Flikr user Avatar/ΣΙΓΜΑ used under Creative Commons Attribution 2.0 license

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.

“Comcast Center” by Flikr user Saturdave used under Creative Commons Attribution 2.0 licenseOn 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 protest” by Flikr user Steve Rhodes used under Creative Commons Attribution 2.0 licenseComcast 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 Flickr user Avatar/ΣΙΓΜΑ used under Creative Commons Attribution 2.0 license

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

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

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How service providers deny users the right to counternotify for content removed by DMCA takedown notices

DMCA pic

The DMCA 512(c) safe harbor creates a process allowing rightsholders to contact service providers (ie websites, social media services, IAPs) and request takedown of content they allege is infringing (see more specifics here). The safe harbor process has a built in balance, that allows users to respond with a counternotice and have content restored if the rightsholder decides not to file a lawsuit. Some common criticisms include that the safe harbors are 1) a prelitigation injunction, 2) can chill legitimate speech, and 3) service providers just don’t have the time to review content.

But here’s a new one, the fact that users are being denied enough information to even respond to content removal by DMCA takedowns. It may save time on the part of a service provider, but it results in gutting the DMCA of its important balancing mechanisms, both counternotification letters, as well as sanctions that can be enforced against a sender of takedown notices who “knowingly materially misrepresents” (512 (f)) “that material or activity is infringing” (512 (f)(1).

How this DMCA problem works

New Media Rights recently heard from a blogger who received notification that a takedown notice was sent to their service provider, a website that hosts individuals blogs, and that the user’s content was removed (the blogger chooses to remain anonymous).

The website notified him that a copyright owner alleged that he had infringed on his/her/its work, but failed to inform him of a) who exactly filed the notification against him, and b) any details of the assertions in the takedown notice. Was it for images, text, sound, video on the page, the blogger doesn’t know.

Despite much discussion of the DMCA and its “safe harbor” provisions, this poses an interesting question that gets little to no attention in the DMCA meme.

What is a service provider required to tell its user when it receives a notification of alleged copyright infringement? What does "reasonable steps" mean?

The DMCA is not very helpful. It says that the service provider must take “reasonable steps” to inform the user that it has removed or disabled access to the material. Nowhere does the DMCA define or explain what constitutes “reasonable steps.” Courts don’t seem to have addressed the issue either.

Moving beyond that ambiguity for a moment… the user may file a counter-notification if he or she believes that the material was incorrectly taken down. The counter-notification has to include, among other things, a statement under penalty of perjury that the user has a good faith belief that the material was “removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled,”; the user’s name, address, and telephone number; and a statement that the person consents to Federal District Court jurisdiction and will accept service of process from the person who provide the original notification of alleged infringement.

Summarizing the problems

1) The user / blogger has no clue who might be filing an action against them. DMCA takedown notices can only be sent by the actual copyright owner, but they are often sent by bully third parties who simply don’t like the content. Providing the user with no identification of the sender of the takedown notice means users who have content taken down cannot challenge the takedown on the basis that it was sent by a third party other than the copyright holder.

2) Denying the user who has content taken down the details regarding specifically what is alleged to be infringing, means the user will lack the knowledge they need to make a statement under penalty of perjury that they believe there was a mistake or misidentification.

Essentially this guts the DMCA, and give the big content companies exactly what they want: an extrajudicial (outside the courthouse) injunction on speech on the Internet. Users should challenge social media services who take such a lax view of their first amendment rights.

The last injustice originates not with service providers or copyright holders, but with the DMCA itself. It is simply inequitable that the DMCA requires that the counter-notification sent by the user must be sent to the party alleging infringement, but the original DMCA takedown notice alleging infringement and asking for the material to be taken down, is not required to be sent to the user, who is denied their right to counternotice and protect their speech on the Internet.

A new wrinkle to DMCA injustice?

“THE DMCA” by Flickr user urlesque used under Creative Commons Attribution 2.0 license

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The FCC's Unauthorized Attempt to Control the Internet

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Restricted Area - Alain-Christian - CC BY SA 2.0The 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.

No Computer Anything - deanj - CC by 2.0The 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 Trojan Horse - myhsu - CC by ND 2.0 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.


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.

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New Media Rights offers journalists and filmmakers in the San Diego area a unique opportunity with the NMR's community journalism project

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