Category Archives: FCC

Supreme Court Upholds FCC’s Ability to Sanction a Single Expletive

By Drew Clark

April 28, 2009 – The Federal Communications Commission may proscribe the broadcast of a single expletive, the Supreme Court held on Tuesday, overturning an appellate court determination that such restrictions amounted to a change of policy.

In a 5-4 decision on Tuesday authored by Justice Antonin Scalia, the Supreme Court ruled narrowly, on the grounds of administrative law, that the FCC’s sanction against Fox Television Stations for the broadcast of those words on television shows involving the celebrities Cher and Nicole Richie, in the 2002 and 2003 Billboard Music Awards.

But in remanding the case, FCC v. Fox Television Stations, to the Second Circuit Court of Appeals with instructions to consider those constitutional issues, the case is almost certain to return to the Supreme Court for a full review of the issues.

Under administrative law, an action by an agency like the FCC may be set aside if it is “arbitrary or capricious.” Scalia said that was not here the case.

“If the Commission’s action here was not arbitrary or capricious in the ordinary sense, it satisfies the Administrative Procedure Act’s ‘arbitrary [or] capricious’ standard; its lawfulness under the Constitution is a separate question to be addressed in a constitutional challenge,” Scalia wrote.

In 1978, the Supreme Court permitted the FCC to sanction the broadcast of “indecent” material, including expletives with sexual reference, in FCC v. Pacific Foundation. That case concerned George Carlin’s “seven dirty words” – the satiric monologue about the seven words, as he put it, that “you couldn’t say on the public, ah, airwaves, um, the ones you definitely wouldn’t say, ever.”

A father who heard the monologue in his car – with his young son along for the ride – a  complained to the FCC, which sanctioned the Pacifica station that carried Carlin’s monologue.

The Pacifica decision, however, suggested that a policy against the “fleeting” use of a single expletive might run afoul of the First Amendment.

Hence the administrative law issue in the Fox case. The issue of whether the FCC had changed course arose because of a prior FCC ruling. The agency sanctioned NBC for broadcasting the singer Bono’s use of the phrase “fucking brilliant” in the 2003 Golden Globes award ceremony.

In its 2004 ruling against NBC, the FCC acknowledged that it had changed policy, to proscribe the use of a single curse word. Acknowledging the policy shift, the FCC did not impose a monetary fine on NBC.

The FCC subsequently sanctioned Fox – and also did not charge a fine – for the Cher and Richie comments.

The substance of the opinion was joined by Chief Justice John Roberts, and by Justices Samuel Alito, Anthony Kennedy and Clarence Thomas.

In a separate, concurring opinion, Thomas argued that rationale for affording broadcasters lesser First Amendment protections than those accorded to users of the internet or cable television should be reconsidered.

Such an exercise would revisit the holding of Red Lion Broadcasting v. Federal Communications Commission, the 1969 decision upholding the “Fairness Doctrine,” which required broadcasters to offer free time to individuals representing the opposing side of a controversial issue covered in a broadcast.

Although the Fairness Doctrine was repealed by the FCC in 1987, the legal rationale underpinning the doctrine remains in force, and could be reinstated by Congress, or by the FCC.

AT&T Reacts to FCC Action Against Comcast

WASHINGTON, August 1, 12:13 p.m. – AT&T has issued this statement on the FCC action:

“Regardless of how one views the merits of the complaint against Comcast, the FCC today has shown that its national internet policies work, and that they are more than sufficient for handling any net neutrality concerns that may arise,” said Jim Cicconi, senior executive vice president of AT&T. “We have argued repeatedly that there is no need for federal legislation in this area, and today’s FCC action proves that point.

“Once a complaint was filed alleging that Comcast had violated the FCC’s national internet policies, it was appropriate for the FCC to adjudicate the complaint. We are pleased the FCC decided to handle the matter on its own unique facts, setting a wise precedent for dealing with such complaints on a case-by-case basis. We are also pleased that, by deciding not to levy a fine, the FCC effectively recognized there was no evidence of anticompetitive intent in Comcast’s practices.”

Comcast, Free Press React to FCC Decision on Network Management

WASHINGTON, August 1, 11:53 a.m. – Comcast has issued this statement:

“One need look no further than today’s FCC decision for proof that engineering challenges on the Internet should be solved by engineers, not government officials,” said National Cable and Telecommunications Association CEO Kyle McSlarrow. “In second-guessing reasonable network management techniques (with no notice or guidelines in place) that benefit the overwhelming number of broadband subscribers in America, the FCC has inexplicably elevated the interests of a few bandwidth hogs over everyone else.”

Free Press has issued this statement:

“The FCC’s bipartisan decision to punish Comcast is a major victory,” said Free Press Executive Director Josh Silver. “Defying every ounce of conventional wisdom in Washington, everyday people have taken on a major corporation and won an historic precedent for an open Internet.

“Comcast’s history of deception and continued blocking show contempt for the online consumer protections established by the FCC. We commend Chairman Martin and Commissioners Copps and Adelstein for standing up for Internet users and working across party lines to protect free speech and the free market.

“Today’s order makes it clear that there is nothing reasonable about restricting access to online content or technologies. Moving forward, this bellwether case will send a strong signal to cable and phone companies that such violations will not be tolerated.

“But the fight is far from over. A duopoly market — where phone and cable companies control nearly 99 percent of high-speed connections — will not discipline itself. We look forward to working with the FCC and Congress to ensure proactive measures keep the Internet open and free of discrimination, and accessible to all Americans.”

FCC Gives Comcast to Year-End to Disclose Practices

WASHINGTON, August 1, 11:37 a.m. – The Federal Communications Commission “announced its intention to exercise its authority to oversee federal Internet policy in adjudicating” Comcast’s network management practices, the agency said this morning.

The five commissioners are still debating the matter, but according to a release issued by the FCC, the agency will require Comcast, within 30 days, to:

“Disclose the details of its discriminatory network management practices to the Commision;”

“Submit a compliance plan describing how it intends to stop these discriminatory management practices by the end of the year;”

“Disclose to customers and the Commission the network management practices that will replace current practices.”

The commission vote has not yet been taken, but is expected to be 3-2, with Chairman Kevin Martin, a Republican, siding with the agency’s two Democrats. Republican Commissioners Robert McDowell and Deborah Taylor Tate have already voiced their dissent.

FCC Releases Broadband Data Order For Census-Tract Data

By Drew Clark, Editor,

WASHINGTON, June 15 – In an effort to increase the data that the Federal Communications Commission has available as it designs broadband policies, on Thursday the FCC ordered broadband providers to provide the agency with more detailed information.

For the past eight years, broadband providers had to provide the FCC with semi-annual information about the number of subscribers that they have in each ZIP code. Now, they will need to provide the number of subscribers in each Census tract, too.

In a last-minute change sought by AT&T and the non-profit group Free Press, the FCC decided to also require broadband carriers to separate out the number of business from residential customers.

Additionally, under a new form created by the broadband data order, carriers must also say how many of their subscribers within each Census tract fit into each of eight separate speed tiers.

The tiers are as follows:

(1) greater than 200 kbps but less than 768 kbps; (2) equal to or greater than 768 kbps but less than 1.5 mbps; (3) equal to or greater than 1.5 mbps but less than 3.0 mbps; (4) equal to or greater than 3.0 mbps but less than 6.0 mbps, (5) equal to or greater than 6.0 mbps but less than 10.0 mbps; (6) equal to or greater than 10.0 mbps but less than 25.0 mbps; (7) equal to or greater than 25.0 mbps but less than 100.0 mbps; and (8) equal to or greater than 100 mbps.

Data about the numbers of subscribers in each ZIP code is kept by the agency and has not been released to the public. Additionally, the FCC does not release the names of which carriers offer broadband service within a particular ZIP code.

The orders released by the FCC on Thursday make no changes to existing rules regarding the confidentiality of this data.

However, the broadband data order does initiate a new proceeding whereby the FCC will consider how it should voluntarily collect additional broadband data, including data about customer Internet speeds. The agency says it is doing this so that it may propose “a national broadband availability mapping program.” It says it wants to consider confidentially rules for such additional data.

The FCC has been under growing pressure for years to collect more comprehensive information about broadband. A variety of public and private initiatives have been launched seeking access to more granular broadband data, including efforts by the California Broadband Task Force, ConnectKentucky, and this publication,

Additionally, a Freedom of Information Act lawsuit, filed by the Center for Public Integrity, sought the names of broadband providers offering service within each ZIP code. A federal district court judge denied the effort in October 2007.

And at least three pieces of federal legislation seek better data from the FCC and other communications agencies: the “Broadband Census of America Act,” H.R. 3919, introduced by Ed Markey, D-Mass., Chairman of the House Subcommittee on Telecommunications and the Internet, the “Connect the Nation Act,” S. 1190, by Sen. Dick Durbin, D-Ill., and the “Broadband Data Improvement Act,” S. 1492, by Senate Commerce Committee Chairman Daniel Inouye, D-Hawaii. Markey’s bill has passed the House of Representatives; neither of the Senate measures has passed the chamber.

The broadband order had been pending nearly three months at the communications agency. It was relased together with a separate order modifying its original one. The FCC voted to enhance the reporting details on March 19, but hadn’t required broadband carriers to separate out the number of business from residential customers.

FCC Democratic Commissioners Michael Copps and Jonathan Adelstein applauded the change to separate out business and residential reporting.

“Without this fundamental change, the usefulness of the improvements that we made in March would have been severely compromised,” Adelstein said in a Thursday statement released with the revised order. “By now distinguishing between residential and business customers at a more granular level, we will be much better positioned to understand the factors that affect broadband adoption,” he said.

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Organizations and Topics Mentioned in this Article:

Editor’s Note: has been closely following the data collection issue. We will issue a statement reacting to the FCC’s order later today.

-Drew Clark, Editor,

Digital Inclusion About More Than Connectivity, Says One Economy CEO

By Drew Clark, Editor,

WASHINGTON, June 2 – Ensuring that all Americans have access to broadband is about more than ensuring high-speed Internet connectivity, said the CEO of the One Economy, a non-profit organization promoting a philosophy of “digital inclusion.”

In addition to ensuring that broadband is present, affordable and available for adoption by low-income Americans, groups aiming to make a difference in stemming the digital divide must also focusing on human capital and digital media content, said Rey Ramsey of One Economy, speaking last week at plenary session the International Summit for Community Wireless Networks here.

One Economy has been seeking to bring broadband into public housing developments, and then to create the tools and incentives for residents to use broadband. The group has sought created its digital content, including the Web site, about emergency preparedness, and is currently developing a “public internet channel,” which aims to provide what it calls “a 21st century public service benefit for all Americans.”

“It is important to attack everything on the supply and demand side,” said Ramsey, rather than focus merely on the availability of broadband in a particular community. “So much attention is placed on the connectivity” piece of broadband, he said.

Ramsey said specifically that Internet speeds needed to be included in analyses of digital inclusion.

“We have to upgrade the thinking. We are falling behind in terms of speed,” he said of measurements of U.S. broadband. And he criticized the Federal Communications Commission’s inclusion of office use of the Internet in its broadband statistics. “We should only be looking at high-speed in the home.”

Others speaking at the conference, an annual gathering of volunteers and others who have been seeking up wireless community networks for more than a half-decade, also emphasized the need for a holistic approach to leveraging community engagement in the Internet.

Mark Ansboury, Senior Vice President and Chief Technology office of OneCommunity, spoke about the need to not only engage in dialogue about connectivity, but to create a platform for universal adoption of broadband within a community. OneCommunity is a non-profit organization targeting universal Internet access, social inclusion and economic development in northeast Ohio.

The group wants to make broadband as ubiquitous and free as the air we breathe, said Ansboury. But that noble goal doesn’t mean avoiding engaging with the business community — including the telecommunications carriers.

Among wireless communications networks, “the fear is that the incumbent carrier is going to come after me [so that] I have to stay so far beneath the radar,” Ansboury said. “We have built a commercially scalable network in northeast Ohio, but have structured it in a way that is a win for us and win for them.”

OneCommunity is funded by the John S. and James L. Knight Foundation, which has committed up to $25 million over five years to create universal Internet access programs in 26 cities of focus by the foundation.

It uses next-generation fiber-optic networks, and also wireless communications, to meet its goals, said Ansboury.

Organizations Mentioned in this Article:

International Summit on Community Wireless Networks
One Economy Corporation


Supreme Court Will Hear Indecency Case

By Drew Clark


Here’s a maxim for Supreme Court watchers: the high court likes to be entertained.


The justices’ decision to take the Federal Communications Commission v. Fox Television Stations case means that the court will finally hear a case pitting broadcast-style indecency regulation against the more recent rulings that the First Amendment forbids restrictions on the Internet and cable television.


The tension between the rules governing broadcasting and the rules governing cable television and the Internet has become extreme. The FCC has been vigorously enforcing broadcast indecency over the past five years — at the very time in which technological developments are making the broadcast versus Internet distinction meaningless.


Some First Amendment observers believe that the FCC v. Fox case could result in a decision overturning the entire framework of broadcast indecency.


Although the Supreme Court could rule more narrowly, the fact that it took the case may signal that the justices are finally ready to square what appears to be the single most glaring inconsistency in First Amendment jurisprudence.


The tension has arisen as the FCC has significantly increased the number and the dollar value of the fines it has levied against about broadcasters for airing indecency. The agency has also begun to sanction isolated instances of a single profanity, including the words “fuck” and “shit.”


As the Forum on Communications and Society last August at the Aspen Institute in Colorado, FCC Chairman Kevin Martin defended this approach by referring to the George Carlin monologue – about the seven dirty words that you can’t say on the public airwaves – that was the subject of the 1978 Supreme Court decision, Pacifica v. FCC, that sustained the indecency ban:


The commission has never had an action about anything besides the words that were included in that original monologue. We are down to enforcing only two to three of those words, and we actually take into consideration the context…. It is important to distinguish between the fact that we have a narrow set of words, and we have been very restrained in our enforcement…. Indeed, those broadcasters that have complained that it is not clear, if we had a per se ban, they would complain just as much.


Broadcast indecency rules have existed since the passage of the Federal Radio Act in 1927. But notwithstanding the 1978 Pacifica decision (decided on a 5-4 vote), indecency has only recently become a live political and legal controversy.


Our current indecency watch began in late 2002, when a string of celebrities, including Cher, Bono, and Nicole Ritchie, used an instance of the “f-word” in awards ceremonies that were carried on live television. These instances raised the hackles of Congress. And then, after Janet Jackson’s breast was briefly exposed by Justin Timberlake during the half-time show of the Super Bowl on February 1, 2004, political momentum became strong for new indecency legislation. The law, passed in 2006, raised the maximum fine for each instance of indecency from $32,500 to $500,000.


After the FCC imposed sanctions against the Fox television network, and others, over the Cher and Nicole Ritchie utterances, during the December 2002 and December 2003 Billboard Music Awards, the network sued, challenging the agency’s decision. In June 2007, the 2nd Circuit Court of Appeals court sided with Fox, holding that the agency had acted arbitrarily in imposing the fine for a single instance of the “f-word.” In November 2007, Solicitor General Paul Clement urged the high court to weigh in, and yesterday, the high court took the bait.


The FCC v. Fox case lies at the fulcrum of he indecency framework — and what might be called a line of Internet free speech cases.


In 1997, the Supreme Court decision American Civil Liberties Union v. Reno held that the Internet should receive the level of protection according the printed world – and not inherit the restrictions that had been imposed upon broadcasters.


The use of filtering technology ended up playing a central role in the ACLU v. Reno case – as well as subsequent cases involving Internet and cable pornography. Because software filters are less restrictive than other forms of regulating content, the Supreme Court seized upon their existence in striking down the Communications Decency Act (CDA) of 1996. It also placed a heavy emphasis on the value of filters in Ashcroft v. ACLU in 2004.The decision effectively undercut the Child Online Protection Act of 1998 – which, as with the CDA, attempted to regulate objectionable material on the Internet.


Now, issues caused by the television/Internet convergence are higher on the political agenda. “Indecency” applies only to broadcast television and radio – and not to cable, satellite, or the Internet. Sometimes this difference has been justified because broadcasters utilize publicly-owned airwaves, and sometimes because of the pervasiveness of broadcast television. Remaining categories of speech – material that is “harmful to minors,” obscenity, and child pornography – apply across media.


“Harmful to minors” material like pornography is intrinsically hard to define, because it is legal for adults and yet forbidden for children. This standard has been the focus of the Supreme Court decisions focusing on Internet filtering. State laws that require Playboy and Penthouse to be wrapped up on magazine stances are a variant of these laws.


Obscenity differs from both indecency and material that is harmful to minors in that obscene material is not protected by the First Amendment, even for adults. But in practice, even hard-core pornography – which may, legally speaking, be obscene – is infrequently prosecuted because the difficulty of meeting the Supreme Court’s “community standards” test. The very notion of community standards has itself been undercut by the Internet.


Child pornography remains the one clear-cut case of harmful content that is illegal throughout the U.S. Prosecutions and criminal sentence are quite strict.


Now that filtering has proven itself – both legally and practically – in the online world, broadcasters seek to use filtering as example about why the indecency laws can no longer pass constitutional muster, even for broadcast television.


In the FCC v. Fox case that is now before the Supreme Court, Fox’s argument relies heavily on the existence of the “v-chip,” named after the images of violence or sexual content on TV the display of which it aims to guard against. After the passage of the Telecommunications Act of 1996, all television manufacturers must include this electronic device within their sets. The consumer has the option of activating it. Cable is already exempt from indecency law because it uses a subscription medium, and because it will “filter” shows and channels that the subscriber wants blocked. In U.S. v. Playboy Entertainment Group (2000), the high court held that Congress didn’t even have the power to limit the hours in which cable subscribers could view pornography on the Playboy channel!


If the least-restrictive means of Internet filtering makes the Communications Decency Act unconstitutional, strains the effectiveness of the Child Online Protection Act, and invalidates laws restricting the time in which cable subscribers may view pornography, surely the existence of the v-chip filter renders broadcast indecency rules obsolete.


After FCC v. Fox, indecency rules could be dead, or at least fatally wounded. Particularly in an election year, this may be a decision that the body politic has failed to anticipate, let alone absorb.


In Comcast vs. Verizon, Comcast is Down Two Counts

By Drew Clark


Dominance in the broadband market is a battle of both technology and politics. Right now Comcast, America’s leading cable company, is losing on both counts.


Comcast Executive Vice President David Cohen emerged from the Federal Communications Commission’s hearing on Internet practices in Cambridge, Mass., as unable to defend himself and his company against charges of blocking the peer-to-peer (P2P) Internet application BitTorrent.


Comcast also came out looking like the kind of bullying corporation that resorts to packing the auditorium with its own employees.


Besides, Comcast is not a very good FOK, or Friend of Kevin — as in Kevin Martin, the chairman of the agency. Martin has done nearly everything in his power to harm Comcast and the cable industry since he took over the FCC in March 2005.


That political battle with the cable industry is all about a la carte, or per-channel television programming. But it comes right back to Comcast’s technological disadvantage: cable — unlike both fiber and DSL (Digital Subscriber Line service) — is a “shared service” among many consumers. The network was designed to “broadcast” video in a cable pipe, and not to facilitate large uploads by P2P users and others.


By contrast, Verizon Communications and its Executive Vice President Tom Tauke emerged from the hearing, held at Harvard Law School, with a squeaky-clean image. “At the current time, we have found no need to have a network management tool,” said Tauke. “We don’t have a shared network.”


Note even the pre-ordained and subtle digs, visible in this photograph: It is “The Honorable Tom Tauke” on the left, but merely “David L. Cohen” on the right. (Tauke received this honorific because he is a former Congressman, a Republican from Iowa.)


Cohen’s basic point was as follows: we don’t block P2P applications, but we do manage them by “delay[ing] the request for uploads; we don’t block it.”


Said Cohen:

Comcast not block web sites, applications, web protocols, including P2P services.

What we are doing is a limited form of network management, objectively based upon an excessive bandwidth consumptive protocol during limited periods of network congestion.


But he wouldn’t say what those “objectively based” forms of management are. No user has any way of knowing when they are exceeding the speed limit. Nor did he address the counter-arguments of Professors Yochai Benkler, of Harvard Law School, or Timothy Wu, of Columbia Law School — that delaying a BitTorrent transmission is tantamount to blocking it.


“Comcast has been blocking Bittorrent, and that is the end of the story,” said Wu. “That is a violation” of the FCC’s Net Neutrality principles.


The basic problem for Comcast is that users of P2P applications like BitTorrent do consume an extraordinary amount of bandwidth . But BitTorrent users aren’t hogging the fat, downstream pipe that cable offers. It’s the the scrawny upstream trickle that everyone is fighting over.


DSL service, in general, has the same “asymetrical” character, offering far greater downstream speeds than upstream speeds. But the cable modem service’s shared network compounds this problem.


Contrast this with the message that Tauke imparted. Given the capacity of Verizon’s fiber optic service (FiOS), “at the current time, we do not have the necessity of thwarting or curtailing traffic.” Tauke even touted Verizon’s 20/20 service, or 20 megabits downstream and 20 megabits upstream. The Bell company announced this symmetrical during the same week in which the revelations of Comcast’s BitTorrent behavior surfaced last fall.


National Public Radio on Kevin Martin

Kevin Martin’s Contentious Turn at Helm of FCC


[7 min 45 sec]

All Things Considered, February 5, 2008 · FCC Chairman Kevin Martin has come under fire from almost all quarters for the agenda he has set during his tenure at the commission. Does that mean he’s doing something right? How is the chairman doing, and what have previous commissioners attempted and accomplished?