Marvin Ammori

Yesterday, consumer groups called for government agencies to investigate TV Everywhere – a new scheme that would require Internet users to pay for a cable TV subscription if they want to watch popular shows online. As detailed in a new report issued on Monday, from the public record, TV Everywhere appears to be the product of collusion between major programmers and the big cable, satellite and phone companies to keep content off the Internet.

Spearheaded by Comcast and Time Warner Cable, the TV Everywhere initiative appears to be built on cable operators (and other distributors) agreeing to work together to pressure content providers to make their content available on the Internet only to viewers that have paid for a cable TV subscription in addition to an Internet connection.  Thus, TV Everywhere ties online TV distribution to the existing cable, phone, and satellite distributors’ TV subscriptions. (I refer to all these as “cable,” for brevity.)  Citing news reports, statements by industry executives and other evidence, the consumer groups argue there is enough evidence of collusion and other harms to warrant a full-scale investigation by the Justice Department or the Federal Trade Commission into the scheme. (Docs here; Huffpo post here.)

Unsurprisingly, the cable industry didn’t welcome this critique of their plans. The head of the cable industry lobbying association (known as NCTA), Kyle McSlarrow, responded with a statement. McSlarrow is an effective lobbyist, but his response misses the mark.

His key argument is that TV Everywhere consists of collaboration, not collusion.  He notes that the antitrust authorities encourage collaboration sometimes even among competitors, for the sake of innovation and other benefits.  McSlarrow has a point that some collaboration is not presumed to be anti-competitive; indeed, the  FTC and DOJ have issued guidelines on collaboration among competitors.

But the types of “collaboration” generally found not to harm competition and to further innovation are very different from TV Everywhere.  Collaborations of some types are considered “per se,” or automatically, illegal because they replace the competitive marketplace driving low prices, choice, and innovation with an agreement among incumbents effectively not to engage in competition with one another in certain ways.

Simply put, some forms of collaboration are clearly illegal and anti-competitive.  These agreements include price-fixing and market allocation.  TV Everywhere should be investigated because evidence suggests it includes both price-fixing and allocation.

First, TV Everywhere sets the price for consumers to access much television content online. The price is the cost of a traditional cable TV subscription and an Internet connection plus access to “free” content if you watch advertising. In other words, consumers will pay three different ways.  TV Everywhere also appears to set a term in the negotiations between distributors and programmers — requiring, for one thing, that programmers keep content off the Internet unless a viewer subscribes also to cable TV.  Setting such terms among competitors for suppliers through horizontal agreement appears problematic, and the government should review such agreements and interview participants to the negotiations.

Second, in a world without TV Everywhere, we could expect programmers to compete directly with distributors on the Internet — for example, Hulu (owned by programmers like Disney and Fox) versus Comcast (a traditional distributor).  TV Everywhere unwinds that competition, as people cannot cancel their cable service to watch popular programming exclusively online without also paying for cable TV.  And without TV Everywhere, we could also expect cable companies in different regions to compete with one another online — with a company like Comcast competing against Cox, Time Warner Cable, AT&T, Verizon, Qwest, etc. But TV Everywhere reportedly ties content to a local cable subscription, allocating markets to the current geographical areas served by each distributor. In other words, no new competition.

When they came up with TV Everywhere, cable executives must have understood they were flirting with collusion  — not pro-competitive collaboration. According to the New York Times, “so as to avoid being accused of collusion, much of the discussions” by executives about TV Everywhere “have been on the telephone and in private, one-on-one chats during industry events.”  That is, to avoid being accused of collusion, the executives didn’t stop having the talks–they just tried to eliminate the paper trail.

Comcast’s president likened online competition to a “classic prisoner’s dilemma,” because if each competitor went in a different direction, without agreements, the cable industry’s economics could crumble.  His quote highlights not only that industry participants were discussing competition as a problem undermining their industry’s economics (of high prices and limited choice for consumers), but also that the point of TV Everywhere wasn’t to innovate.  It was to protect the cable business model.

TV Everywhere is designed to be a major development in the TV industry, preserving their existing, limited competition, model for years to come.  Our competitive system rests on companies competing with one another to win in the marketplace, and that competition should yield low prices and increased innovation for Americans.  Our system does not rest on incumbents protecting their turf.  As consumer groups called for yesterday, the antitrust authorities should investigate such an important, potentially illegal and anti-competitive development.

I generally post some of the news stories discussing the UNL Space & Telecom program or quoting me (I am generally quoted as a professor at UNL or an advisor to consumer groups in DC, notably Free Press).

Here are a few recent stories.

Quoted in

USA Today on online TV.

Washington Post on the national broadband plan.

Reuters on rules requiring cable operators to share sports programming with satellite and other providers.

MediaPost and TechNewsWorld on First Amendment and net neutrality.  ScotusBlog also referred to a blog post I wrote on the issue.

These are all issues I’m thinking about, in terms of teaching and scholarship.

Over the past few weeks, academics and lobbyists have been debating a First Amendment issue–namely, how the First Amendment applies to an Internet access rule called network neutrality (about the the rule, see here and here; about the First Amendment’s application, see here and Jack Balkin’s testimony).

Today, the trade publications report a potentially new development in the jurisprudence of First Amendment and media/Internet regulation: Cablevision willl apparently ask the Supreme Court to revisit (or narrow) a key Supreme Court case that casts a shadow over communications law–the second Turner Broadcasting v. FCC case, decided in 1997, and known to some as “Turner II.”

Cablevision likely has a decent gamble based on court composition.  Turner II was a 5-4 decision.  Two Justices have since been replaced, O’Connor and Rehnquist.  O’Connor wrote the principal dissent for Justices Thomas, Scalia, and Ginsburg; but Rehnquist was in the majority.  If the new Justices, Roberts and Alito, vote with Justices Thomas and Scalia (as Cablevision hopes) , the decision flips 5 to 4 the other way.

Here, I will make only a few points about the potential import of this challenge.  (I hope to add a few more words later about Turner II itself, which I believe problematic for various reasons.)

My main points are (1) this challenge reminds us that media & Internet cases are among the most important, though often overlooked, First Amendment cases for their impact on our democracy and American’s lives, and (2) changes to Turner II‘s holdings have a potentially wide scope, covering hugely important media regulations.

1. The First Amendment’s application to 21st Century speech technologies is a question of central importance for our democracy. There are other important areas of First Amendment speech doctrine–indecency, hate speech, flag burning, incitement, campaign finance.  But electronic media are often overlooked.  Americans engage in/receive probably most of their speech through phone, TV, and Internet–getting most of their news and doing much of their political organizing through these technologies, rather than through paper newspapers, leaflets, or offensive street corner speech and burning flags.  Yet free speech casebooks usually devote very few pages to key First Amendment cases involving media ownership rules (like FCC v NCCB regarding ownership of newspapers and broadcasters) and access rules (like Turner II itself, giving access to cable lines for broadcasters, or CBS v FCC, giving access to broadcast stations for politicians).  These ownership and access laws, however, are centrally important to promoting the “basic tenet” of the First Amendment–fostering the widest dissemination of information from diverse and antagonistic sources.

Far worse, traditional First Amendment teaching treats such cases as “exceptional,” “narrow,” somehow “special”–rather than as integral to understanding the underlying structure of First Amendment doctrine.  (Some scholars have demonstrated how media ownership and media access cases inform First Amendment theory, like Jack, Ed Baker, Yochai Benkler, Monroe Price, and Mark Tushnet.)

A decision like Turner II, which affects numerous ownership rules and access rules for major communications industries, is important for how Americans can speak to one another in our society–for what they hear and how they communicate about the health care bill, the financial bailout, global warming, reforming the Senate rules, and what’s for dinner.  It might not be as sexy as “bong hits for Jesus,” but it matter greatly.

2. Turner II, which Cablevision hopes to challenge, has a wide (though uncertain) scope.  So upending Turner II could raise questions about a lot of regulation.

That Turner II case sets of the test for whether the government has abridged the speech rights of giant cable corporations when it subjects those companies to ownership or access rules. Turner II upheld an access rule, namely a must-carry law requiring cable operators (like Comcast) to carry over-the-air broadcasters (like CBS, NBC, ABC, and Fox).

Turner II did so not by applying strict scrutiny for “content-based” rules (a wise choice), nor by applying a lower scrutiny (such as the scrutiny in FCC v. NCCB and Red Lion), but by adopting the content-neutral intermediate scrutiny test from US v. O’Brien, with an additional requirement of “substantial evidence.”  This intermediate test is known as the Turner test. (Cablevision’s appeal would re-challenge the same must-carry rules, though a particular application of them.)

The long and short of it: a heightened scrutiny applies to access and ownership rules. Applying this heightened scrutiny to media regulations, rather than some lower level, makes courts more likely (if inclined) to strike down an ownership cap or an access rule.  But … those these rules foster wide dissemination of information from diverse and antagonistic sources, and should be encouraged by courts rather than undermined.  These rules are at the heart of the Obama tech agenda.  They’re common throughout all of media and telecom regulation–pervading the Communications Act.  So the Turner test could, if widely applicable, require heightened scrutiny for basic communications regulation.

The scope of Turner II is debatable.  It applies to TV transmitted over cable lines, and maybe over phone lines too.  It doesn’t apply to TV delivered through terrestrial broadcasting or (in the DC Circuit, at least) to satellite broadcasting.  Nor does it apply to phone service over mobile, phone, or cable lines–for example, common carriage regulation is not subject to heightened scrutiny for limiting phone companies’ ability to block calls.  No appellate court has applied the Turner test to Internet access services.  net neutrality is an access rule because it provides “access” to all Americans who could otherwise be blocked by phone or cable companies in their speech.  I assume regulating Internet access is subject to the same low scrutiny as common carrier regulation for phone calls.

Further, even though the Turner test applies for cable TV, the strictness of its application and the types of rules affected (price regulation?  cable franchising?) are both subject to debate.

The debate wouldn’t stop the most powerful media and telecom companies–and their many lawyers–from arguing that the Turner test applies to everything, that the test is actually very very strict (which the cable industry argues, though losing Turner II), and trying to expand that test to all business rules and to all Internet based technologies.  You hear that the Turner test would invalidate network neutrality and even rules enabling you to use whatever cell phone or computer you want on a wireless network.  The Turner test protects Comcast’s right to buy NBC, Time Warner Cable’s right to interfere with peer to peer technologies, etc.

If the Supreme Court takes the case, I’ll have more to say.  I’d also look forward to the broadcasters, who often disagree with me on the scope of their First Amendment rights, being in complete agreement with me in this case on the First Amendment rights of their competitors.

For now, that’s what’s at stake here if Cablevision convinces the Supreme Court to revisit or narrow the Turner II case.  A reversal by the new Court could cast a different, darker, shadow on regulations regarding media conglomerates and those conglomerates’ ability to control of speech.

Cross posted at Balkinization and The Faster Times.

I wouldn’t mess with Mignon Clyburn.

During the run-up to the net neutrality NPRM, the phone and cable companies threw everything they had at the FCC. The Commissioner called out those who “seem to prefer radioactive rhetoric and unseemly and unbecoming tactics.”  Radioactive, unseemly, unbecoming.  That’s about as close as an FCC Commissioner comes to telling lobbyists they’re acting like spoiled children and should grow up.

Now, Verizon is trying to defend what the NYT’s David Pogue calls two “particularly nasty” practices.  The FCC asked Verizon to explain two practices–early termination fees shooting up to $350 on smartphones and phantom charges for accidental data use.  Verizon responded with what Pogue called an “outrageous” document, also criticized by consumer groups.

Commissioner Clyburn was also unimpressed.  She issued a statement questioning Verizon’s response on both fronts.

It’s good to see Commissioner Clyburn think in terms of public interest rather than the mindset of carrier-profits:

So when [consumers] are assessed excessive penalties, especially when they are near the end of their contract term, it is hard for me to believe that the public interest is being well served.

And she alludes to a bigger point–phone companies, too often, try to lock in consumers through huge fees rather than through innovation and great service (a mindset recently described as an MBA mentality by the Google folks). Rather, to keep consumers, phone companies should focus on giving consumers what they want (usually a competitive necessity).

The bottom line is that wireless companies can truly earn their desired long-term commitments from consumers by focusing primarily on developing innovative products, maintaining affordable prices, and providing excellent customer service.

And this promised not to be just a pretty written statement:

I look forward to exploring this issue in greater depth with my colleagues in the New Year.

All in all, great news for consumers.

I’m putting together a teaching syllabus for the spring.

After many years of studying, practicing, and teaching the law of telecommunications, media, and Internet law, it’s still tough to explain.

I spent years as a consumer advocate, sometimes trying to explain why obscure communications laws affect the daily lives of Americans–their ability to participate in our democracy, their job prospects, and our national future.  You have to explain clearly to get people to care about something that could be described as special access rates or false resets.

And I’ve spent a few years as a law professor, trying to teach these subjects to law students.  It’s not at all impossible to explain these things, but doing so simply has some major challenges.  I figured, since I’ve been thinking about the challenges, I’d explain a few.  (And I’ll say, as an aside, I’m in awe of professors like Larry Lessig, Tim Wu, and the many excellent journalists (and other experts) in this field who can explain these concepts so clearly so often.)

So, why is teaching Internet law hard?

First, three fields are involved at least.

To study telecom or Internet  law, you need some familiarity with (1) law (which you learn in law school), but also with (2) economics and (3) technology.  I think I can count on one hand (actually one finger) how many people are expert in law, economics, and technology.  (Barbara van Schewick, of Stanford–law professor, computer science phd and professor, expert in innovation economics…)  For the rest of us mortals, we’re expert in one field at best.

Second, even non-experts need more than a passing familiarity with all three.

Take economics.  Beyond the basics of supply and demand, economies of scale, transaction costs, marginal and average costs, oligopolies, you come across network effects, network externalities, natural monopolies, theories of price regulation, vertical foreclosure theory, one monopoly rent/Baxters’s law/internalizing complementary externalities (and the exceptions to it), Ramsey pricing, cross-subsidies, some innovation theory (disruptive vs incremental innovation, Schumpeterian creative destruction) , two-sided markets, termination access monopolies, and even property rights theory for spectrum.

Third, you have to know a lot of different areas of the law.

Telecom and Internet laws involve areas of law set out in statutes, FCC and other administrative regulations, cases, and even important consent decrees.  First-year law students read a lot of judicial cases in contracts and property law classes, but they read few administrative regulations (from, say, the FCC or even the SEC or FDA, etc.) and few statutes (like the 1964 Civil Rights Act). So, you might want to have taken administrative law and statutory interpretation.  It might also help to take antitrust law and copyright law.  You’ll put some tort, property, and contract law to good use.  And don’t forget the First Amendment or federal courts.  But, since nobody has taken all those classes, a telecom or Internet law class will have to cover the basics of those laws to explain the basics of telecom and Internet law.

Fourth, the law is totally f&&%ed up.

The communications laws, taken together, don’t make sense any more, if they ever did.  The law doesn’t make sense because it’s outdated–the Internet is our basic communications infrastructure and the FCC has interpreted the existing Communications Act not to cover Internet access.  The FCC has now made a somewhat confusing jurisdictional authority called ancillary jurisdiction central to communications law courses.  And the law doesn’t make sense mainly because it’s dictated by phone, cable, and broadcast companies (who, for example, urge the FCC to misread the Communications Act).  Those companies, of course, dictate the law to serve their shifting interests rather than to make rational policy for the nation.  So you get a mess of special-interest regulations largely protecting incumbents.

Fifth, it’s another language.

The concepts of telecom law are draped in an obscure foreign language of acronyms, like (a) MVPDs and (b) ILECs and (c) CPEs (meaning roughly (a) pay-TV companies, (b) local phone companies, and (c) devices like phones and faxes and computers).

What’s a law Prof to do?

I’m still wondering.  I’m using the clearest book I could find as the course text, though it’s a few years old (I can supplement easily).  So thanks to those authors (Jon Nuechterlein and Phil Weiser) for a great book.  And I assign Wikipedia and Ars Technica and other popular writings that clarify and simplify, as supplements to the cases and statutes where relevant.

I also make assignments like, “Make a Skype call today.”

But I don’t think I’d assign:  “Please cancel your Verizon smart phone a little early and see what happens.” That would be educational, but could make me an unpopular professor.

Yesterday, the largest cable company in the nation, Comcast, launched a product called Fancast Xfinity.  Xfinity is the brand name of Comcast’s product, but the rest of the cable industry is planning to roll out something similar.  They’re part of a cable-industry-wide initiative known in the industry as “TV Everywhere.” The point of this initiative is actually to kill online TV and make sure people keep paying their cable subscriptions.

Thirty years from now, if Americans are still tied to their local cable companies, we will look back to yesterday as a pivotal moment in the history of television.  In the last year, consumers have seen the potential of canceling their cable TV and watching TV, in their living rooms, through competitive Internet services like Roku or Hulu.  Canceling cable would save Americans thousands a year they would spend on bloated cable TV bills.  But Xfinity is meant to lock Americans into cable TV subscriptions for the forseeable future, as the Wall Street Journal wrote yesterday.

Here’s the business plan for “TV Everywhere.”  Fancast Xfinity is a site that looks like Hulu but has different TV shows.  You go to the Xfinity site to watch (on only three authorized devices) some shows and movies available on cable TV.  Rather than making all these shows available to everyone on the Internet–like Hulu does, and like just about everything else online–the service is available only to Comcast subscribers in Comcast regions who subscribe to Comcast cable TV.

You’ll notice two things.

First, you can only watch Xfinity on the Internet if you pay your cable TV bill.  This is totally new.  It’s like saying you have to pay for cable TV to see pictures of funny cats online.  Why can’t you just pay for the Internet service?  The point of is to keep you from canceling cable and sticking with just Internet service.  It’s to keep you paying two bills.

Second, Comcast and Time Warner Cable are rolling out their services only in their own regions.  They’re doing so because they (naturally) don’t want to compete with one another.  They like the cable model–where each city has one monopoly cable operator.  You usually have the “choice” of one provider in any town–like Comcast,Time Warner Cable, Cablevision, or Cox.  And they’d rather not have to compete with each other on the Internet. In a Time Warner Cable region–you have to pay TWC for a cable TV subscription there.  Without competition from Comcast, which won’t provide you Xfinity.

So, in short, Comcast and Time Warner are trying to impose the cable TV model on the Internet.  And to keep you paying those high cable bills.

If they succeed, then we’ll look back on this moment years from now as the moment the cable industry stifled competition from online TV–and imposed the cable TV model on another generation.

AT&T sent a letter to the FCC and held a press conference to say …  the same exact thing they’ve said for 3 years.

In the letter, they said they don’t like net neutrality.  They said they think the FCC shouldn’t adopt a net neutrality rule with a fifth principle forbidding discrimination and ensuring neutral Internet access.  And they said–if the FCC must adopt a fifth principle–it should be a toothless fifth principle permitting AT&T to discriminate, but to do so “reasonably.”

But AT&T knows this is old news–covered by existing law.  Last year, AT&T’s head lobbyist (the author of today’s letter), said, on a panel I moderated, in fact: “The current [FCC] principles already deal with unreasonable discrimination.”   So what’s AT&T’s big announcement?  They’re proposing a law they think already exists, which net neutrality supporters (like Free Press and the President) would find incomplete.  (Free Press has already called the supposed compromise a “bait and switch.”)

The most interesting part is that AT&T is admitting it would like to discriminate (but “reasonably”).  This is the same company that thinks blocking Slingbox but not competing apps is reasonable discrimination and blocking Skype on the iPhone, until a recent change of heart, was also reasonable.  AT&T’s CEO in 2005 considered it reasonable to charge Vonage and Google to reach consumers, and told Business Week as much.

So, if AT&T wants to make news, I’d actually appreciate them explaining what kinds of discrimination they would like to engage in, and why they consider these discriminations reasonable–rather than threats to an open Internet.

Instructional article about electricity–unexpected killer apps, a basic infrastructure once believed a luxury, and the need for government policy in basic infrastructure for the benefit of Americans in all parts of the nation.

I got an email from Adam Lynn, a researcher at Free Press, which I’m including below.  I’d encourage you to click here to give a little love this holiday season.  Give once or sign up to give monthly.

Free Press is a super-effective advocacy group fighting for an open and universal Internet, better journalism, and more local media.  They’re one of the more influential little groups you’ve never heard of.  Here’s a Washington Post article about its policy director.  Here’s a story about one of Free Press’s more well-known, high-impact cases (which I worked on while working at Free Press).

Free Press takes no money from corporations–just foundations and individuals like you.  And it’s stocked with committed, brilliant, hard-working folks.  They’re very impressive.  Adam Lynn, for example, is an amazing researcher, who proved himself to me as worth dozens of highly-paid white shoe lawyers charging $300/hr.

And Free Press is no frills–your money goes to (modest) salaries, not mahogany boardroom tables.  A top corporate lobbyist once came to the Free Press offices to negotiate something and asked, “All your legal filings and research papers, and just this small office… with Ikea furniture?”

May I suggest three formulas for how much you should give.

1. Imagine the corporate lawyers and lobbyists hired to fight Free Press and to undermine your consumer and citizen rights.  Send to Free Press enough money to cover one hour of one lawyer’s time.  That could be between $250 and $700.

2. Follow these tips by Adam for reducing your cable bill.  Whatever you save for one year, send half to Free Press.  If you save $50 a month ($600 a year), send $300; if you save $100 a month, send $600.  (Read the tips either way, even if you want all the savings.)

3. Cancel your cable bill altogether, and watch HD sports over the air and supplement with online TV like Netflix and AppleTV.  According to the NYT, that could save you $1,600 a year.  Send just one year of those savings over to Free Press, which is fighting to ensure your ability to watch online TV.

Or, without a formula, just send $50.  It’ll go to good use.

Here is the email.

Hello Friends and Family,

As most if not all of you are aware, I work for a non-partisan, non-profit consumer advocacy group called Free Press. I’ve been with them for more than three years now.  We hit a bit of rough patch this year. As I’m sure many of you have.  This is partly due to the fact that we accept no money from companies and thus maintain complete independence on these issues.  A fact that is increasingly rare amongst non-profits, especially those working in DC.  In an effort to remedy this situation, everyone at Free Press is asking our personal networks to support them.  I’m hoping you can help by donating.  Let me just first say that similar to my work, I don’t take this request lightly.  This isn’t going towards first class travel, new office accommodations or anything like that. This money will be used to pay my modest salary.  (If you like me so much you don’t want to read anymore, just head here: http://bit.ly/7jS2a4)

Let me also say, I love what I do.   I believe in these issues we work on to my core.  I could spends hours talking to you about why your cable bill is too high, why you pay too much for Internet access, why you have only two choices for high-speed Internet or why your cell phone provider should be paying you to text message.  Ever since I came upon these issues in 2003, I have breathed them. I think about them in the shower, I dream about them. The federal policies that surround tv, radio and the Internet have shaped the world we live in.  Unfortunately, all too often these decisions are made hidden and without the public’s knowledge or consent.  This is what I work to change.  My job, in a nutshell, is the collection of knowledge.  I research, develop and compile every fact I can to illustrate the reality for consumers.  I then write filings to regulatory agencies and offer consumer’s side of the story. Many times these filings are the only consumer voice in these otherwise industry dominated federal proceedings.  You will not find them reported by any news outlet but they have a direct effect on your life (not to mention your back account). My coworkers then take this information I compiled, boil it down and get it out to the public. When appropriate, we email our supporters and ask them to file a brief comment as well and further bolster our case.

We currently have an opportunity to make some serious positive improvements to the communication landscape.  The next year will be a critical time in my world.  I will be right in the middle of it, taking on 100 billion dollar companies and trillion dollar industries. They will always have more money to spend but believe me, they’re worried and spending tons to make sure I don’t succeed.  When I submit a filing they spend anywhere from $10,000 to $250,000 employing lawyers to respond and many times their attempts are weak. The reason behind this is simple, I am simply illustrating reality.  As Ghandi said “First they ignore you, then they ridicule you, then they fight you, then you win.”

We are on the cusp. As friends and family, I hope you can donate something to this cause, my passion and what I believe to be our future. I can absolutely promise you that I will put every dollar to good use.  I am enormously grateful for anything you can provide.  If times are just too tough for you, please consider passing this along to others you may know who might be interested in supporting my work.  Also, a generous donor has offered to match any donations made by Dec. 31. You can donate here: http://bit.ly/7jS2a4

Thanks for hearing me out

Adam

P.S. I should mention that these donations go to the Free Press Action Fund, our lobbying arm and are not tax-deductible as charitable contributions or as business expenses under IRC §162(e). I would argue this is the money that is put to best use because it is used right at the heart of the problem.

The cable and phone industry keep making the offensive argument that the First Amendment belongs to them, not you–and that the First Amendment empowers them to stifle your online speech just so they can make more money.

This Wednesday, the cable industry’s head lobbyist gave a speech claiming that Net Neutrality would violate the First Amendment. According to the NCTA’s Kyle McSlarrow, cable companies have free speech rights, while Americans (like you) don’t have rights to access or upload content on the Internet.

And Net Neutrality — a rule that would protect Internet users from cable and phone efforts to censor you online or to discriminate against your favorite Web sites — would abridge the speech rights of phone and cable companies.

Just repeating his argument shows how silly — and offensive — it is. McSlarrow specifically said that cable companies would “speak” by offering priority-treatment to some Web sites that pay cable companies more, at the expense of other sites that don’t pay them. Really. (It’s amazing what a 2-million-dollar lobbying salary will do to a man’s reason.)

He also said two things that directly contradicted one another (nothing new for phone and cable reps). He said (1) Net Neutrality is unnecessary because cable companies would not affect Internet traffic, let alone block it; and (2) Net Neutrality is “forced speech,” because it forces cable companies to carry speech they would, in fact, otherwise block or affect. Which is it? Will cable companies block speech (once again) or will they not?

And, in fact, his industry lost this same argument about the First Amendment in a major FCC decision just last year, rendered against his largest member company — Comcast — under a Republican Chairman, with a bipartisan vote.

But I want to focus on a particular insult to all Americans whose ancestors are human beings, not cable corporations. He said, “There is plenty of case law about instances of speech compelled by the government – ‘forced speech’ — that suggests such rules should be scrutinized closely.”

Let me tell you about this Supreme Court case law. It applies generally to humans, not cable corporations. You can force the speech of corporations, not humans, regularly. We “force” corporations to “speak” and disclose “material information” to investors. We can force corporations to disclose the side effects of prescription drugs or the trans fats in potato chips. We can force them to print Surgeon General’s warnings.

On top of that, we can “force” cable companies to carry local broadcast stations. The Supreme Court said so in a case called Turner, which rejected the cable industry’s same, repeated “forced speech” arguments. But this week, McSlarrow seems to forget that his industry lost Turner, and he is pinning his Net-Neutrality hopes on a few sentences in that case. Good luck with that.

But, in turning to the forced speech cases the cable industry didn’t lose, you see how offensive McSlarrow’s argument really is. The leading forced speech decision in the Supreme Court involves a person, not a cable corporation. That person was a grade school student — a Jehovah’s Witness.

During World War II, Jehovah’s Witnesses refused to salute the flag for religious reasons. They thought the pledge was Nazi-like, an arm raised akin to the Third Reich’s salute. And Witnesses were familiar with the Nazis. Nazis banned their movement in 1933, killed one-third of them, and persecuted up to 97% of them in Germany. (The story is in this book.)

But Americans misinterpreted the Witnesses’ motives, and thought they were unpatriotic, if not pro-Hitler. In West Virginia, 500-some taunting citizens forced some Witnesses to drink castor oil and roped them up and then paraded them through town. In Wyoming, five Witnesses (two women) were beaten by a mob. In Arkansas, two Witnesses were shot, four hospitalized after being beaten with pipes and screwdrivers. In Illinois, vigilantes pulled a Witness from his car, draped an American flag over his hood, and (when he refused to salute the flag) slammed his head into the hood for nearly half an hour while the police chief looked on.

During all this, West Virginia passed a law aimed at Witnesses, requiring all students to pledge allegiance to the flag, under penalty of expulsion for the child, fines and jail time for the parents. The Witnesses offered another pledge, declaring “allegiance and obedience to all the laws of the United States that are consistent with God’s law, as set forth in the Bible” and “respect” for the flag, “a symbol of freedom and justice to all.” But that wasn’t good enough for the state of West Virginia.

The Supreme Court struck down this law, for forcing the speech of children and parents, against their personal convictions. Other cases follow this logic.

The cable companies are trivializing the judicial freedom protected in those cases.

They’re not school kids. They’re huge, billion-dollar, profit-maximizing companies whose lobbyists dominate Washington, DC.

They don’t want to express their deep personal or religious convictions. They want to block and control speech. They want to determine winners and losers on the Internet. They want to break the Internet. They want to break your Internet, not theirs. And, to do so, they’re raising a First Amendment argument based on protections for forced-speech and freedom of conscience.

Their argument is just plain offensive.

[Cross posted at SaveTheInternet.com]