Tag 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.

Comcast and Freedom to Obtain Service Plan Information

By Drew Clark
Comcast’s terms of service and other consumer broadband service documents make no mention of any restrictions on the use of “peer-to-peer” applications like BitTorrent, or of any Internet network management.

AT&T and Time Warner Cable, two of the other big broadband providers, do mention restrictions on “peer-to-peer” services in their consumer broadband documents. Verizon Communications does not mention the phrase, according to an analysis of the four broadband providers conducted by DrewClark.com.

Unlike Time Warner Cable, Comcast fails to mention any “management,” “network management” or “reasonable network management” of its consumer broadband service in its documents.

Of the four providers, however, Comcast makes the most extensive warning to consumers against the “excess” use of bandwidth. For example, Comcast declares that the consumer “shall ensure that your use of the Service does not restrict, inhibit, interfere with, or degrade any other user’s use of the Service, nor represent (in the sole judgment of Comcast) an overly large burden on the network.”

The issue of Net neutrality has resurged because of Comcast’s actions limiting subscriber bandwidth available through the peer-to-peer software application BitTorrent. Although the company has conceded delays on traffic in and out of peer-to-peer applications, it defended these on the grounds that they were reasonable network management tools.

Whatever the legality of Comcast’s network management of BitTorrent, another question should loom large. Is Comcast violating what might be called the “missing” Net neutrality principle?

In other words, are consumers receiving true and accurate service plan information about what is being offered and sold as Internet service by Comcast?

On Thursday, a coalition of non-profit groups led by Free Press and Public Knowledge filed a formal complaint (PDF) at the Federal Communications Commission. It charged Comcast with violating several of the Net neutrality principles in the FCC’s August 2005 policy statement (PDF) designed to “encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet.”

In particular, according to the August 2005 principles, “consumers are entitled to access the lawful Internet content of their choice” (principle one), and “consumers are entitled to run applications and use services of their choice” (principle two). Comcast violated those principles through “methods [that] deliberately discriminate against peer-to-peer traffic,” write Free Press and Public Knowledge. They also claim that Comcast undermines the competition that consumers are entitled to have among broadband service providers.

At first, Comcast refused to admit that it blocked Internet access to peer-to-peer applications, in an October 19 story reported by the Associated Press’s Peter Svensson.

Then, speaking on background in a New York Times blog post by Brad Stone, a company official admitted that Comcast “uses data management technologies to conserve bandwidth and allow customers to experience the Internet without delays. As part of that management process, he said, the company occasionally – but not always – delays some peer-to-peer file transfers that eat into Internet speeds for other users on the network.”

Now, in response to the formal complaint, Comcast Executive Vice President David Cohen said that the provisions of the FCC’s Net neutrality policy are constrained by footnote 15, which reads, “The principles we adopt are subject to reasonable network management.”

“We engage in reasonable network management to provide all of our customers with a good Internet experience, and we do so consistently with FCC policy,” David Cohen, executive vice president at Comcast, said in a Thursday statement. “The FCC’s Internet policy acknowledges that the Web is subject to reasonable network management. The commission clearly recognized that network management is necessary by ISPs [Internet service providers] for the good of all customers.”

What is striking is that none of Comcast’s broadband service documents make any mention of either limitations on “peer-to-peer” applications, or the use of “network management” practices on the purchased Internet service.

The only use of the term “management” in any of three broadband documents is about the Comcast Home Networking Service, which refers to the “gateways, routers, or wireless cards rented from or otherwise supplied by or on behalf of us [Comcast] to you [the consumer].” These three documents are Comcast’s Terms of Service agreement for residential services, Comcast’s high-speed Internet Acceptable Use Policy, and the Comcast Abuse Policy.

Comparable terms of service and acceptable use documents of each of the four largest carriers – AT&T, Comcast, Verizon and Time Warner Cable – were examined by DrewClark.com for the adequacy of the statements’ disclosure of issues that may bear on consumer broadband use.

While Comcast omits the phrase “peer-to-peer” entirely, AT&T says, “You agree that the Service is not to be used to host peer-to-peer application that you are not actively using.” Time Warner Cable says that it “may use various tools and techniques in order to efficiently manage its networks,” including “managing network resources through techniques such as limiting the number of peer-to-peer sessions a user can conduct at the same time.”

Besides “peer-to-peer,” the phrases searched for in the documents included the use of network “management,” whether “bandwidth” was deemed to be “excessive” or the “exceed” a particular limitation, whether there was a ban on personal “servers” or the “resale” of broadband service, and whether there were any restrictions on bandwidth for “USENET.” The analysis is available here.

The Federal Trade Commission highlighted the principle of consumer access to service plan information in June 27 Net neutrality report. That report raises consumer protection and deceptive trade practice issues, noting that there are remaining “questions involving the clear and conspicuous disclosure of material terms of broadband Internet access.”

The report specifically references what former FCC Chairman Michael Powell called the “freedom to obtain service plan information,” or the last of the four Internet freedoms he articulated in a February 2004 speech (PDF). This fourth principle was dropped when the FCC, under Chairman Kevin Martin, issued its four Net neutrality principles.

FTC Commissioner Jonathan Leibowitz said it was important to protect “consumers from having to choose Internet service plans without sufficient information about those plans from broadband providers.”