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Pirate radio = drug dealing and municipal broadband is anti-competitive censorship

The world according to FCC Commissioner Michael O'Rielly

Comment It has long been a sad truth that Washington DC lives within its own distorted universe, but even by DC standards a recent speech by federal regulator Michael O'Rielly is a wonder to behold.

O'Rielly is one of four current commissioners on the Federal Communications Commission (FCC) and on occasion is known for his sharp insights in telecoms regulation, particularly when it comes to the FCC's own outdated systems and work patterns.

His speech [PDF] at "The Media Institute" last week as a keynote during its "Free Speech America Gala" was not one of those times.

We have repeatedly marveled at the current FCC's leadership obsession with pirate radio – passing numerous rules on this outdated technology and issue, and promising heavy-handed enforcement actions – and it seems that O'Rielly is the key driver for that pointless focus.

O'Rielly outlined three key areas where his work as an FCC Commissioner and the First Amendment covering free speech overlapped and, amazingly, pirate radio was one.

"While I am a firm supporter of removing illegitimate restrictions on broadcasters’ speech, I also believe that individuals who use the public airwaves must play by the rules, meaning that, at the most basic level, they must have an authorization," he began. "For this reason, I have pushed for the FCC to use all of its tools – and have advocated for expanded authority – to combat illegal pirate radio stations."

He provided no analysis of how big an issue pirate radio really is in the age of the internet – where literally anyone can broadcast their views to millions of people across the globe for free. Nor did he reflect on the fact that most of the people that the FCC is busting for pirate radio stations are pastors, using radio to reach their constituents and pass on the word of god.

Fight against the little man

But there was a personal story, and one where O'Rielly stood up against the forces of evil and defended the First Amendment.

"Earlier this year, I noticed an article in an uber-small Colorado publication discussing the existence of a local pirate radio station operating nearby," he noted. Incredibly, O'Rielly noted, the newspaper was actually "advocating that townspeople listen to it while it's still in operation, at least until the federal government shuts it down."

Did this apparent support of an illegal operation and criticism of his own organization cause Mike to pause and reflect – perhaps consider what was being broadcast, why a paper would support it, why the federal government would face criticism for imposing the law? No, of course it didn't.

"In response, I wrote a letter to the editor raising concerns regarding their publication's approach and arguing it should notify the local FCC office of illegal activities rather than romanticize these 'broadcasts' or provide the 'station' with some type of legitimacy," he proudly recalled. (The newspaper in question - the Longmont Observer - initially thought it was a joke and had to verify it was from an actual FCC Commissioner.)

Mike was then further baffled when the publication didn't recant and immediately recognize the dangers of promoting an illegal radio station. In fact, he recalled with amazement, the publication "took great umbrage with my criticism and eventually used my letter in an op-ed campaign as an example of its resistance to efforts to curtail the First Amendment rights of a free press."

Commissioner O'Rielly then points out that this appeal to the First Amendment – by a newspaper about a radio broadcast – was the wrong kind of free speech. And to prove his point, O'Rielly noted that he – as a commissioner of a federal regulator – "didn’t even suggest that people stop reading the publication, withhold advertising, or cancel their financial support memberships."

To quickly reiterate: this is the story FCC Commissioner Michael O'Rielly decided to tell during a keynote at the "Free Speech America Gala" run by "The Media Institute."

Completely reasonable comparison

Mike wasn't finished though. Having embarked on a campaign against a tiny publication - one in which he consciously decided not to use his power to hurt them - he revealed that pirate radio stations are equivalent to drug dealing, at least in his eyes.

"Consider if the publication promoted the locations of nearby buildings or schools where dealers could sell drugs, favored looting of a local grocery store that lost its power, or published detailed instructions on how to steal from the local bank when it upgraded its software in the middle of the night," he reasoned.

And he pointed out – in his speech celebrating free speech - that "the First Amendment does not make those who enjoy its protections immune from criticism. It should never be viewed as a shield against challenges of facts, style, or substance. While it protects the right of everyone, especially press officials, to state what they would like to state, it does not protect these same individuals from being called out for their inaccuracy, inappropriateness, or lunacy – depending on the circumstances – even if done so by government officials."

Indeed it does not, which is why we are sure Commissioner O'Rielly will stand proudly by our assertion that he seems to have been overtaken by the very lunacy he is railing against.

As you would expect from an audience at "The Media Institute" during a "Free Speech America Gala," this bizarre series of arguments was met with cold disdain.

No of course it wasn't. Because this is Washington DC and the "media institute" doesn't actually have anything to do with the media and also isn't an institute in any meaningful way.

Who would you expect to sit on the Board of The Media Institute? Probably someone from a bastion of the free press. Certainly the head of a major TV network or a radio network. Some academics maybe.

Ah, I see

Nope. It's all right-wing corporate America: Disney's, Verizon's and LG Electronics' main lobbyists; advertising companies (IAB, Tegna); Washington's two biggest lobbying law firms, Wiley Rein and Covington & Burling; several more lobbyists – the chair of the comedically titled "Business in the Public Interest" and "consultant" Michael Regan; and two "media" companies.

You won't have heard of the two media companies - HC2 Broadcasting and iHeartMedia – who are represented, again, by their lobbyists. And that's because they are both the by-products of bankers: companies that have been bought, sold, laden with debt, profited from and dumped. It just happens that these companies' main assets are in the media business but that is not their defining characteristic. They are as far from the "media" as you can get without, you know, making it up.

So The Media Institute is not really about the media. Which naturally enough explains why the "free speech gala" wasn't actually about the First Amendment or free speech either. It was instead yet another way for the same powerful folks with the same agenda to cozy up to policymakers, this time under the guise of supporting one of America's most famous attributes.

Which is why no one balked at a federal regulator telling a weird story about fighting a small-town publication, considering using his power to hurt them, and arguing that a key element of free speech is to attack those people that use it.

But it doesn't end there. While O'Rielly's obsession with pirate radio is odd, it doesn't impact many people. What does is his equally bizarre views about the medium that people do care about in 2018 – the internet.

As has been revealed countless times, the United States suffers from an unusual situation where a small number of very large companies have colluded to form local monopolies over internet access.

So long as it's in black

As such, the majority of Americans effectively only have one choice of ISP when it comes to fast internet access. It is a highly uncompetitive market despite significant demand. And that means that Americans pay more for less: slower internet speeds than other Western nations at a higher cost.

One of the more effective solutions to breaking that market control has been the introduction of municipal networks. Local governments that have decided internet access is more of a utility like electricity or water or roads than a product or service like food or clothing.

As such, numerous local governments – mostly city councils – have dug into the cost of creating and running their own fast internet networks and found that in many cases they can offer faster internet access at a lower cost than the market.

As you can imagine, this approach has not been welcomed by the corporations that make billions of dollars each year from the current arrangement. As so municipal networks have found themselves under relentless attack, largely by lobbyists, sometimes through fake campaigns.

As an FCC Commissioner, Michael O'Rielly is one of the very few people that can have a direct impact on this dynamic. The FCC is formally charged by Congress to make sure that Americans are getting good broadband in a fast and efficient manner, and the regulator has some significant powers that it can use to ensure that happens.

Which is why what O'Rielly had to say about municipal networks is more mind-boggling than even his pirate radio meanderings.

"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."

That's right, you just heard an FCC Commissioner say that municipal networks represent a threat to the First Amendment – and an "ominous" one at that. What deranged twist of logic has led him to that conclusion?

One man's hate is another's... freedom?

It was the issue du jour – hate speech. In the past week, one man has been arrested for sending bombs to critics of the president, and another arrested for murdering 11 people and injuring more at a synagogue in Pittsburgh.

In both cases, both men have been notable followers and publishers of hate speech on the internet. The events have further strengthened the argument that online discourse needs some kind of controls for the worst kind of speech – that which incites violence.

It is this issue that O'Rielly chooses to make his case for why municipal networks are a threat to one of the most fundamental tenets of American life.

"Municipal broadband networks have engaged in significant First Amendment mischief," he argued in his speech – which we would note again was given during a keynote at the "Free Speech America Gala."

He goes on: "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'."

He goes on: "These content-based restrictions, implicating protected categories of speech, would never pass muster under strict scrutiny. In addition to conditioning network use upon waiver of the user's First Amendment rights, these terms are practically impossible to interpret objectively, and are inherently up to the whim of a bureaucrat's discretion. How frightening."

It's notable that policymakers that work for a municipality are "frightening bureaucrats" while the audience O'Rielly was presumably hoping to persuade was full of the exact same people but working for for-profit organizations.

O'Rielly's arguments – aside from being self-contradictory – ignore an extremely long history of First Amendment legal cases and an equally long history of people in the media – and now also in ISPs – drawing up rules and policies that balance free speech rights with limiting damaging behavior and liability.

Of all the places in the world that would understand that balance, "The Media Institute" should, at least on paper, be one of the biggest. But it isn't because the media institute and its free speech gala were kind of a sham. And Michael O'Rielly has once again identified himself as the exact kind of bureaucrat that he chose to rail against.

Welcome to fear and self-loathing in the internet age. ®

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