Thank you, Commissioners Mignon Clyburn and Jessica Rosenworcel for speaking truth to power. Since this is published on the FCC website, Clyburn’s is an official federal document, and thus automatically in the public domain. Please reprint widely. Rosenworcel’s may be as well, but I found it on CNET so am linking, not reprinting.

Note: I met Commissioner Clyburn several years ago when she addressed a National Conference on Media Reform. I was impressed with her as a speaker Now I am impressed with her as a writer, too.

DISSENTING STATEMENT OF COMMISSIONER MIGNON CLYBURN Re: Destroying Internet Freedom, WC Docket No. 17-108

Dissenting FCC Commissioner Mignon Clyburn in 2014 (courtesy Wikipedia)
Dissenting FCC Commissioner Mignon Clyburn in 2014 (courtesy Wikipedia)

“I dissent. I dissent from this fiercely spun, legally lightweight, consumer-harming, corporate-enabling Destroying Internet Freedom Order.

“I dissent, because I am among the millions who is outraged. Outraged, because the FCC pulls its own teeth, abdicating responsibility to protect the nation’s broadband consumers. Why are we witnessing such an unprecedented groundswell of public support, for keeping the 2015 net neutrality protections in place? Because the public can plainly see, that a soon-to-be-toothless FCC is handing the keys to the internet — the internet, one of the most remarkable, empowering, enabling inventions of our lifetime — over to a handful of multibillion dollar corporations. And if past is prologue, those very same broadband internet service providers, that the majority says you should trust to do right by you, will put profits and shareholder returns above what is best for you.

“Each of us raised our right hands when we were sworn in as FCC Commissioners, took an oath and promised to uphold our duties and responsibilities ‘to make available, so far as possible, to all the people of the United States, without discrimination… a rapid, efficient, nationwide and worldwide wire and radio communication service with adequate facilities at reasonable charges.’ Today the FCC majority officially abandons that pledge and millions have taken note.

“I do not believe that there are any FCC or Congressional offices immune to the deluge of consumer outcry. We are even hearing about state and local offices fielding calls and what is always newsworthy is that at last count, five Republican Members of Congress went on the record in calling for a halt of today’s vote. Why such a bipartisan outcry? Because the large majority of Americans are in favor of keeping strong net neutrality rules in place. The sad thing about this commentary, it pains me to say, is what I can only describe as the new norm at the FCC: a majority that is ignoring the will of the people. A majority that will stand idly by while the people they serve lose.

“We have heard story after story of what net neutrality means to consumers and small businesses from places as diverse as Los Angeles’ Skid Row and Marietta, Ohio. I hold in my hand letters that plead with the FCC to keep our net neutrality rules in place but what is striking and in keeping with the new norm, despite the millions of comments, letters and calls received, this Order cites not even one. That speaks volumes about the direction the FCC is heading. That speaks volumes about just who is being heard.

“Sole proprietors, whose entire business model, depends on an open internet, are worried that the absence of clear and enforceable net neutrality protections will result in higher costs and fewer benefits because you see: they are not able to pay tolls for premium access. Even large online businesses have weighed in, expressing concern about being subject to added charges as they simply try to reach their own customers. Engineers have submitted comments including many of the internet’s pioneers, sharing with the FCC majority, the fundamentals of how the internet works because from where they sit, there is no way that an item like this would ever see the light of day, if the majority understood the platform some of them helped to create.

“I have heard from innovators, worried that we are standing up a mother-may-I regime, where the broadband provider becomes arbiter of acceptable online business models. And yes, I have heard from consumers, who are worried given that their broadband provider has already shown that they will charge inscrutable below-the-line fees, raise prices unexpectedly and put consumers on hold for hours at a time. Who will have their best interests at heart in a world without clear and enforceable rules overseen by an agency with clear enforcement authority? A toothless FCC?

“There has been a darker side to all of this over the past few weeks. Threats and intimidation. Personal attacks. Nazis cheering. Russian influence. Fake comments. Those are unacceptable. Some are illegal. They all are to be rejected. But what is also not acceptable is the FCC’s refusal to cooperate with state attorney general investigations, or allow evidence in the record that would undercut a preordained outcome.

“Many have asked, what happens next? How will all of this — net neutrality, my internet experience — look after today? My answer is simple. When the current protections are abandoned, and the rules that have been officially in place since 2015 are repealed, we will have a Cheshire cat version of net neutrality. We will be in a world where regulatory substance fades to black, and all that is left is a broadband provider’s toothy grin and those oh so comforting words: We have every incentive to do the right thing. What they will soon have is every incentive to do their own thing.

“Now the results of throwing out your net neutrality protections may not be felt right away. Most of us will get up tomorrow morning and over the next week wade through hundreds of headlines, turn away from those endless prognosticators and submerge ourselves in a sea of holiday bliss. But what we have wrought will one day be apparent and by then, when you really see what has changed, I fear, it may not only be too late to do anything about it, because there will be no agency empowered to address your concerns. This item insidiously ensures the FCC will never be able to fully grasp the harm it may have unleashed on the internet ecosystem. And that inability might lead decision-makers to conclude, that the next internet startup that failed to flourish and attempted to seek relief, simply had a bad business plan, when in fact what was missing was a level playing field online.

“Particularly damning is what today’s repeal will mean for marginalized groups, like communities of color, that rely on platforms like the internet to communicate, because traditional outlets do not consider their issues or concerns worthy of any coverage. It was through social media that the world first heard about Ferguson, Missouri, because legacy news outlets did not consider it important until the hashtag started trending. It has been through online video services that targeted entertainment has thrived, where stories are finally being told because those same programming were repeatedly rejected by mainstream distribution and media outlets. And it has been through secure messaging platforms, where activists have communicated and organized for justice without gatekeepers with differing opinions blocking them.

“Where will the next significant attack on internet freedom come from? Maybe from a broadband provider allowing its network to congest, making a high-traffic video provider ask what more can it pay to make the pain stop. That will never happen you say? Well it already has. The difference now, is the open question of what is stopping them? The difference after today’s vote, is that no one will be able to stop them.

“Maybe several providers will quietly roll out paid prioritization packages that enable deep-pocketed players to cut the queue. Maybe a vertically integrated broadband provider decides that it will favor its own apps and services. Or some high-value internet-of-things traffic will be subject to an additional fee. Maybe some of these actions will be cloaked under nondisclosure agreements and wrapped up in mandatory arbitration clauses so that it will be a breach of contract to disclose these publicly or take the provider to court over any wrongdoing. Some may say ‘Of Course this will never happen?” After today’s vote, what will be in place to stop them?

“What we do know, is that broadband providers did not even wait for the ink to dry on this Order before making their moves. One broadband provider, who had in the past promised to not engage in paid prioritization, has now quietly dropped that promise from its list of commitments on its website. What’s next? Blocking or throttling? That will never happen? After today’s vote, exactly who is the cop of the beat that can or will stop them?

“And just who will be impacted the most? Consumers and small businesses, that’s who. The internet continues to evolve and has become ever more critical for every participant in our 21st century ecosystem: Government services have migrated online, as have educational opportunities and job notices and applications, but at the same time, broadband providers have continued to consolidate, becoming bigger. They own their own content, they own media companies and they own or have an interest in other types of services.

“Why are millions so alarmed? Because they understand the risks this all poses and even those who may not know what Title II authority is, know that they will be at risk without it.

“I have been asking myself repeatedly, why the majority is so singularly focused on overturning these wildly popular rules? Is it simply because they felt that the 2015 net neutrality order, which threw out over 700 rules and dispensed with more than 25 provisions, was too heavy-handed? Is this a ploy to create a ‘need’ for legislation where there was none before? Or is it to establish uncertainty where little previously existed?

“Is it a tactic to undermine the net neutrality protections adopted in 2015 that are currently parked at the Supreme Court? You know, the same rules that were resoundingly upheld by the DC Circuit last year? No doubt, we will see a rush to the courthouse, asking the Supreme Court to vacate and remand the substantive rules we fought so hard for over the past few years, because today, the FCC uses legally suspect means to clear the decks of substantive protections for consumers and competition.

“It is abundantly clear why we see so much bad process with this item: because the fix was already in. There is no real mention of the thousands of net neutrality complaints filed by consumers. Why? The majority has refused to put them in the record while maintaining the rhetoric that there have been no real violations. Record evidence of the massive incentives and abilities of broadband providers to act in anti-competitive ways are missing from the docket? Why? Because they have refused to use the data and knowledge the agency does have, and has relied upon in the past to inform our merger reviews. As the majority has shown again and again, the views of individuals do not matter, including the views of those who care deeply about the substance, but are not Washington insiders.

“There is a basic fallacy underlying the majority’s actions and rhetoric today: the assumption of what is best for broadband providers is best for America. Breathless claims about unshackling broadband services from unnecessary regulation are only about ensuring that broadband providers have the keys to the internet. Assertions that this is merely a return to some imaginary status quo ante, cannot hide the fact, that this is the very first time that the FCC has disavowed substantive protections for consumers online.

“And when the current, 2015 net neutrality rules are laid to waste, we may be left with no single authority with the power to protect consumers. Now this Order loudly crows about handing over authority of broadband to the FTC, but what is absent from the Order and glossed over in that haphazardly issued afterthought of a Memorandum of Understanding or MOU, is that the FTC is an agency, with no technical expertise in telecommunications; the FTC is an agency that may not even have authority over broadband providers in the first instance; the FTC is an agency that if you can even reach that high bar of proving unfair or deceptive practices and that there is substantialconsumer injury, it will take years upon years to remedy. But don’t just take my word for it: even one of the FTC’s own Commissioners has articulated these very concerns. And if you’re wondering why the FCC is preempting state consumer protection laws in this item without notice, let me help you with a simple jingle that you can easily commit to memory: If it benefits industry, preemption is good; if it benefits consumers, preemption is bad.

“Reclassification of broadband will do more than wreak havoc on net neutrality. It will also undermine our universal service construct for years to come, something which the Order implicitly acknowledges. It will undermine the Lifeline program. It will weaken our ability to support robust broadband infrastructure deployment. And what we will soon find out, is what a broadband market unencumbered by robust consumer protections will look like. I suspect the result will not be pretty.

“I know there are many questions on the mind of Americans right now, including what the repeal of net neutrality will mean for them. To help answer outstanding questions I will host a town hall through Twitter next Tuesday at 2 p.m. ET. What saddens me is that the agency that is supposed to protect you is abandoning you, but what I am pleased to be able to say is the fight to save net neutrality does not end today. This agency does not have, the final word. Thank goodness.

“As I close my eulogy of our 2015 net neutrality rules, carefully crafted rules that struck an appropriate balance in providing consumer protections and enabling opportunities and investment, I take ironic comfort in the words of then Commissioner Pai from 2015, because I believe this will ring true about this Destroying Internet Freedom Order:

I am optimistic, that we will look back on today’s vote as an aberration, a temporary deviation from the bipartisan path, that has served us so well. I don’t know whether this plan will be vacated by a court, reversed by Congress, or overturned by a future Commission. But I do believe that its days are numbered.

“Amen to that, Mr. Chairman. Amen to that.”

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Just as Left and Right joined forces a few years ago to protect Net Neutrality (the right to an open Internet without tollbooths and bandwidth restrictions for those who are not part of big cable or news empires), so we must come together to protect our precious freedom of the press.
Someone commented on a post from one of my right-wing acquaintances that they thought DT was being humorous when he threatened CNN journalists. Here’s my response:
Making thinly veiled threats to beat up journalists is NOT humor. If you don’t see the need to protect press freedom and other First Amendment rights, you are wearing blinders. And your liberties will be trampled just as much as ours on the “other side.” Laughing off threatening behavior as “humor” is creating a culture where the behavior is permissible and excused. Put your glasses back on! We should be able to join across sides to protect First Amendment freedoms.
Another right-wing acquaintance posted on his own page,
If he can destroy the out of control reckless American MSM and force them to recalibrate their models and become honest, unbiased journalistic organizations instead of hacks (and that goes for FOX News), then he will go down as the greatest President of all time.
I responded:
If you want unbiased MSM, start by reintroducing the Fairness Doctrine. Eliminating that began a long slide away from honesty and toward bias. And despite flawed reporting, I still am thankful every day that we have a free press—sand very worried when DT attempts to create a culture where beating up journalists is OK. That’s right out of the Hitler playbook. Without primary sources in the MSM, bloggers with minimal research skills would have no platform.
No sooner had I posted these comments when I scrolled down in my feed and found a chronology of Nazi suppression of press freedom, starting with Hitler’s threats to press freedom in Mein Kampf. The parallels are disturbingly chilling. Please go read the link. I will wait.
Statue of Thomas Jefferson. Photo by Thad Zajdowicz, FreeImages.com
Statue of Thomas Jefferson. Photo by Thad Zajdowicz, FreeImages.com

Thomas Jefferson, whose politics today would be described as Libertarian-Conservative, came back to the theme of the importance of free press over and over again. Here’s a whole page of Jefferson’s quotes on press freedom. His most famous is right at the top:

The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers and be capable of reading them.

Another quote on that page speaks directly to the issue of fake news, and how much of that originates in government:
The most effectual engines for [pacifying a nation] are the public papers… [A despotic] government always [keeps] a kind of standing army of newswriters who, without any regard to truth or to what should be like truth, [invent] and put into the papers whatever might serve the ministers. This suffices with the mass of the people who have no means of distinguishing the false from the true paragraphs of a newspaper.
Why am I not seeing an outcry on the right as the country takes a sharp turn toward thuggish fascism? Their news channels will be restricted and attacked just as much as ours. Look what he said and continues to say about his one-time cheerleaders at Morning Joe.
This is important, folks. Do not let this petty tyrant erode our freedoms. It CAN happen here. Don’t let it.
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By Shel Horowitz, GreenAndProfitable.com

Michael Copps: There’s no larger question in the US right now than how do we get the media back?

We started out in 2002, 03, opposing Michael Powell’s plan to loosen media ownership rules. I said the people have a real interest in this, and thanks to FreePress and other groups, three million people contacted the FCC. We’ve conducted some good holding actions, but it’s time to win the battle.

The real question is, shouldn’t consumers be deciding where they want to go and what they want to do online, and that’s what Net Neutrality is about.

We’ve lost a lot of public interest territory over the years, and you don’t get that back an inch at a time.

How do we ensure that everyone has access to broadband? It’s the future of democracy. The facts are gone; the investigative journalism is gone. Thousands of journalists no longer walk the beat. How many facts are buried so deep that the few journalists left can’t find them? Let’s have the data. I have watched the evisceration of the public interest all of these years. I think it’s the most important issue facing the country. The resolution of all of those other issues rides on how they are depicted by the media—and if the facts are told to the American people so they can make a decision. You can’t get that from the starvation diet, the journalism lite that we get from the traditional newsrooms now.

We should bring back a licensing regimen where the public interest is actually included. Where the public interest controls. Where the localism, the news of our various communities, is actually covered. Where minorities are not caricatured but their real issues are covered. Where we can say, “if you’re not serving your community, we’ll take that license back and give it to someone who will.”

Citizen action can still work. Very few people hold outrageous amounts of power, and control what goes on in this country. But citizen action can still make a difference. Look at women’s rights, labor, minority rights, they all had uphill fight, but they all persevered. It never happens easily. We should rededicate and recommit ourselves, and we can make some real down payments on media democracy in the months ahead. And then we can get real progress in getting media that is of and by and for the people.

 

Mignon Clyburn (former South Carolina State Commissioner and activist)

You reaffirm to me how important it is to fight for parity when I put my head on the chopping block. Remember what people were doing 10 years ago while waiting for flights? Reading a book or staring at the ceiling? Now they’re playing a game with a friend in New Zealand, tweeting, texting, IMing. Count the number of wireless activities next time. I hear about the fast approaching mobile TV and mobile broadband. Wireless availability and ease of use is no longer a fun novelty. It’s an essential part of everyday routines. An overwhelming majority would say they couldn’t live without their cell phones. This is especially true in lower income communities. It may be far more economical to communicate in short text messages than taking up too many voice minutes. Wireless is becoming the choice for students, under 30, families with small discretionary incomes. They are relying on them to find bus arrival times and weather forecasts, and to mange  smoother ways of living. But this ease that many of us take for granted is at risk, for others.

1 in 4 households rely solely on wireless. They’re cutting costs and cutting the cord. Data apps on wireless are far more common in Afro-American and Latino communities, and they take advantage of a much wider array of the data than their white counterparts.

And we must be mindful of the effects of this on the ecosystem. If the costs become prohibitive, we have failed.

Small businesses pay significantly more per user (than big) for wireless.

I am an unlikely candidate for this job.  A non-lawyer from a small, poor, “interesting” state. But I am a person who saw the disconnects, the inequities from the day she was born that minimize the potential in her communities. I know that these technologies, the potential for unlocking the spirit and the hope and desires and the excellence in all of us—we have that potential as commissioners, and you have the potential to not let us get away with anything less than our best.

Response to government shutdown:
Copps: we’re wasting all this time on the high noon shootout when there are all these bigger issues.

Clyburn: A lessons we learned in our household that we can disagree without being disagreeable. We don’t see that in our public spaces and places, and because of that, we’re unable and unwilling to compromise.

Oversight of broadband

Clyburn: We are to ensure a robust telecommunications industry. People expect that when they sign up for a service, that they can access information. We established high-level rules to do just that. They’re not onerous rules. I am comfortable with that direction. At the end of the day, we talk about this consolidation. The majority of Americans have two or fewer Internet providers, and that does not stimulate competition. I’m a substitute for competition.

Copps: Internet users should be very worried, because the Net Neutrality we passed is a partial measure. It does not include wireless telecom and there’s the potential for companies to do mischief. Long-term, we should be more worried. Every new telecom technology starts out as the dawn of an era of openness and freedom, but control gets tighter and tighter. That’s the danger to the future of the Internet, probably the most liberating technology since the printing press, and it’s going down the same road as the rest. We’re talking about keeping this technology free, and not letting a few telecoms put up a toll booth. Of course we have authority to do this. The telecoms convinced previous FCCs to call it information services (not regulatable).

State regulators vs. municipal

Clyburn: There are significant donut holes in this nation. 95% has high-speed access, but that means 14-24 MILLION have no broadband access available. The companies say the economic case can’t be made. So cities and towns should have the flexibility to wire those communities.

Copps: We have a spectrum shortage, we need more for wireless. But that should not translate into taking it from broadcast. We have a democracy crisis in large pat due to the state of our media. Let’s look at how broadcasters are using the people’s spectrum. There’s room for both wireless and broadcast.

What would it take for ATT/TMobile merger to be in the public interest?

Copps: A hell of a lot more than I’ve seen before. We have to say, what about competition? What they’re looking for is deregulated monopoly and I hope that’s not the course of American history.

Clyburn: I look at broadband access as a human rights issue. This is the last opportunity—the TV airwaves are unaffordable and almost unreachable. Those traditional platforms are too expensive. If we let this go, what do we have left? It is the pathway forward.

Copps: I think you can justify access to broadband as a civil right very easily. You’re not going to be a young person who can’t get a job because you can’t apply online. You can’t monitor your kids’ learning, your health. We’re 15th or 20th in the world, and that means all these kids are growing up without that opportunity. You think we’ve got outsourcing now…

License renewals:

We used to have 14 guidelines. I don’t think we need to have that many, but you need an honest-to-god licensing system. I’d have the renewals every three years, and you make a judgment about whether the station is serving the public. And if not, you put them on probation for a year or two, and if not, plenty of other people would like to have access to bandwidth.

Diversity:

Copps: Diversity is one of our mandates, but station ownership doesn’t reflect that diversity. We’ve had a committee that has proposed 70-75 measures we could take. I’ve proposed that we take one of them up each month.

Free Expression:

Clyburn: We have to make space for viewpoints we disagree with. But if we diversify, people have more venues to get their voices across. They get drowned out and we cannot be satisfied with that. We have to push this agency and our lawmakers to be creative thinkers. And the advertisers will follow, and the voices we have problems with become less popular. Speak with your clickers and those voices will be gone.

Copps: I’d like to see the FCC require full disclosure on political advertisements. You hear, “brought to you by Citizens for Spacious Skies and Amber Waves of Grain,” and you don’t know it’s a chemical company.

The FCC is one of many agencies with a revolving door. We should say, for x number of years [former regulators can’t work as industry lobbyists]. It’s the crushing influence of money in Washington.

Clyburn: Reaffirmations that public-private partnerships are the way to go. I am not satisfied about our diversity initiatives. I don’t hear enough southern accents. [race, gender]. The revolving door works both ways. I’m the beneficiary of the expertise of my staffer on mergers, from the outside.

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