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FCC Falsely Claims Community Broadband an 'Ominous Threat to The First Amendment'

In reality, the real threat posed by community broadband is to big telecom’s monopoly revenues.
FCC Commissioner Mike O’Rielly
Image: Gage Skidmore/Flickr

The Trump FCC has declared towns and cities that vote to build their own broadband networks an “ominous threat to the First Amendment.”

The claims were made last week during a speech given at the telecom-funded Media Institute by FCC Commissioner Mike O’Rielly. In his speech, O’Rielly insinuated, without evidence, that community owned and operated broadband networks would naturally result in local governments aggressively limiting American free speech rights.


“I would be remiss if my address omitted a discussion of a lesser-known, but particularly ominous, threat to the First Amendment in the age of the Internet: state-owned and operated broadband networks,” claimed O’Rielly. More than 750 such networks have been built in the United States in direct response to a lack of meaningful broadband competition and availability plaguing America. Studies have routinely shown that these networks provide cheaper and better broadband service, in large part because these ISPs have a vested interest in the communities they serve.

In his speech, O’Rielly highlighted efforts by the last FCC, led by former boss Tom Wheeler, to encourage such community-run broadband networks as a creative solution to private sector failure. O’Rielly subsequently tried to claim, without evidence, that encouraging such networks would somehow result in government attempts to censor public opinion. “Municipalities such as Chattanooga, Tennessee, and Wilson, North Carolina, have been notorious for their use of speech codes in the terms of service of state-owned networks, prohibiting users from transmitting content that falls into amorphous categories like 'hateful' or “threatening,” O’Rielly claimed. Chattanooga, Tennessee, is home to EPB Broadband, which is owned and operated by the city’s power utility. A recent Consumer Reports survey of 176,000 Americans found the ISP was rated the highest in the country in terms of speed, value, and reliability. A perusal of the EPB terms of service shows no language that varies in any substantive way from the usual restraints on bad behavior and hate speech imposed by most ISPs country wide. The closest O’Rielly gets to supporting evidence appears to be a 2015 white paper written by Professor Enrique Armijo for the ISP-funded Free State Foundation. That paper similarly alleges that standard telecom sector language intended to police “threatening, abusive or hateful” language somehow implies community-run ISPs are more likely to curtail user speech.


But municipal broadband experts say the argument has no basis in fact.

“There is no history of municipal networks censoring anyone's speech,” Christopher Mitchell, a community broadband expert and Director of the Institute for Local Reliance, told Motherboard.

“In our experience, the Terms of Service from municipal ISPs have been similar to or better than those of for-profit ISPs in terms of benefiting subscribers,” he added. “And when concerns have been raised about related issues…the municipal ISPs have listened to public sentiments far more than any large cable or telephone company has.”

The FCC refused to comment on O’Rielly’s claims when contacted by Motherboard, only referring us to O’Rielly’s press office, which did not immediately respond to a request for comment. While there’s no substantive evidence that such networks infringe on the public’s free speech rights, there’s ample evidence that such networks frequently force incumbent ISPs to offer better service in areas they face community broadband competition. In Chattanooga, ISPs like AT&T and Comcast have been forced to dramatically reduce their pricing for gigabit broadband in particular. Comcast was also forced to deploy significantly faster broadband in the city, after it attempted to prevent the network from being built by filing several unsuccessful lawsuits.

ISPs could easily prevent such networks from being built by offering better, cheaper service. Instead they’ve historically turned to more underhanded efforts to not only hamstring these networks, but curtail local authority over how taxpayer money should be spent.

Of particular note are the more than 21 state laws the broadband industry has lobbied to pass that greatly restrict your town or city’s ability to build its own networks, even when nobody else will. Such laws are quite literally often written by the telecom industry, then usually proposed via proxy organizations like the American Legislative Exchange Council. O’Rielly was clearly hoping to imply that the community broadband network model shouldn’t be embraced because it will lead to government censorship. In reality, the most frequent result of such efforts (assuming they’re built on solid business models) tends to be better, cheaper, faster, and more widely-accessible broadband.