Net Neutrality -- Can We Trust the FCC Not to Censor the Internet?

The history of the FCC is replete with examples of attempts to apply decency rules and censorship to content. Should we believe that 'this time it's different?'
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The proponents of Net Neutrality have long claimed that the FCC needs to lay down some rules insuring freedom of speech on the internet.

As a songwriter I have a problem wrapping my mind around the concept that the FCC is going out of the censorship business and into the protection of free speech.

Wasn't it the FCC that banned Billy Holiday's wonderful recording of "Love for Sale" and Cole Porter's "I Get a Kick Out of You?"

Wasn't it the FCC that agreed with Vice President Spiro Agnew that the recording industry was promoting 'drug culture' with songs like "Puff the Magic Dragon" and "A Little Help From My Friends?"

Isn't it the FCC that gave us Janet Jackson's 'Nipple Gate' and drove Howard Stern off the air and onto satellite radio? Didn't they ban Ice-T for Cop Killer? Fine Bono for cursing at an awards show?

I could go on, but I hope this short list demonstrates the controversial history of the FCC's role in censoring free expression in music.

Here is a video of Chase Fontaine, an enthusiastic, and thoroughly fictitious, supporter of Net Neutrality, attempting to explain the free speech 'benefits' of Net Neutrality (with mixed results)...

The Songwriter's Guild of America is not the only organization that is concerned about the idea of the FCC's protection of free speech on the internet.The EFF, a strong proponent of Net Neutrality, has also expressed concern: "While we're big fans of net neutrality, we worry that the FCC may want to build its net neutrality regulations on a rotten legal foundation,"Title I 'ancillary authority' which is both discredited and unbounded. As we've said before, if ancillary jurisdiction is enough for net neutrality regulations (something we might like) today, the FCC could just as easily invoke it tomorrow for any other Internet regulation that the commission dreams up (including things we won't like, like decency rules and copyright filtering)."

So even some of the most fervent Net Neutrality supporters understand that turning over the internet to the FCC may be a problem for people who want free expression to survive and thrive in the wonderful new information medium that is the Internet.

Net Neutrality supporters tell us to distrust the ISP's, who have, with no Net Neutrality rules in place, given us an Internet that is the closet thing in history to a censorship-free zone. Alternatively, they ask us to trust the FCC, which has been banning, bleeping, and blurring everything in sight ever since the 1930's.

While the EFF realizes there are problems with the "rotten legal foundation" that underlies attempts to regulate the internet under the "unbounded" Title I ancillary authority, we worry about similar problems under Title II.

Under Title I, where the Internet is classified as an information service, the FCC could potentially look directly at content in order to see if all transmitters are being treated equally. But what if the FCC decides to do what it has done so many times in the past; and seeks to apply decency rules to content? Therein lies the very serious problem of Title I regulation of the Internet.

Under Title II, if the internet is classified as a telecommunication service, the FCC would purportedly make sure that everyone has equal access to the "on-ramp" of the Internet at the
purely data transport level. The FCC promises it would 'forebear' any attempt to control content under Title II. Seriously, they 'promise'.

But can we really trust the FCC to 'forebear' authority to reach any further than the transport level? The history of the FCC is replete with examples of attempts to apply decency rules and censorship to content. Should we believe that 'this time it's different?' We already have groups like Free Press calling for the FCC to reach up into the content level of the Internet and take action against 'hate speech'.

Laudable as their underlying objective might be, the effect would be to put the FCC squarely into the internet content censoring business.

If other strong Net Neutrality supporters like the Electronic Frontier Foundation realize that FCC regulation might very well have a negative effect on freedom of expression on the Internet, one would hope that a group calling itself 'Free Press' would share those same concerns.

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