Marvin Ammori

Tomorrow I’ll be speaking at an event organized by the Federal Communications Bar Association.

It’s actually a CLE, at an amazing venue–the fabulously fabulous Newseum–and an amazing line-up.  Since it’s not really posted online, I figured I’d post about it.

(As for why I’ve been posting less recently… I’ve been super busy law-professoring: teaching and researching/writing a legal article.  Conference-speaking is a nice change.  I also recently helped Lincoln, Nebraska’s government apply for the Google Fiber Sweepstakes!  But I did pose a competition question to the FCC Chairman via the Washington Post, which ended up on a far more awesome blog than my own.)

So I’ve been living la vida law-professor.

The best part of such vida, beyond getting to use terms like res ipsa loquitor and ipso facto in my daily life, is getting to discuss important issues like the First Amendment’s future with thoughtful people, like those speaking tomorrow.  Here’s an agenda.  I speak on the last panel, and will probably speak last to disagree vigorously with all the nice people on my panel.  I was told I was the only “pro-regulatory” person on the panel–but I consider myself, you know, “pro-citizen,” “pro-speech,” and “pro-other-good-things-like-chocolate.”

I’m sure the lineup has been updated since the one posted in the FCBA newsletter…

Wednesday,March 31, 1:00 – 5:00 p.m.

Media Regulation and the First Amendment in the 21st Century [CLE]

Presented by the FCBA Mass Media Committee in association with the Freedom Forum & the ABA Forum on Communications Law

Agenda

1:00 – 1:05 p.m. WELCOME

1:05 – 1:35 p.m. KEYNOTE ADDRESS

1:35 – 2:30 p.m. TECHNOLOGIES OF FREEDOM: WHAT ARE THE REGULATORY IMPLICATIONS OF THE EVOLVING MEDIA ENVIRONMENT ?

Moderator: TBD

Speakers:

Alan Davidson, Director of Government Relations and Public Policy, Google

JoeWaz, Senior Vice President, External Affairs and Public Policy Counsel, Comcast

Gigi Sohn, President and Co-Founder, Public Knowledge

Others TBD

2:40 – 2:50 p.m.

BREAK

2:50 – 3:45 p.m.

THE FUTURE OF JOURNAL I SM: I S I T T IME FOR A BAI LOUT ?

Moderator: Barbara Cochran, President Emeritus, RTNDA

Speakers:

StevenWaldman, Senior Advisor to Chairman Julius Genachowski. Federal Communications Commission

BarbaraWall, Vice President, Gannett

Andy Schwartzman, President and CEO, Media Access Project

Gene Policinski, Vice President and Executive Director of the First Amendment Center, Freedom Forum

3:55 – 5:00 p.m.

NEW T ECHNOLOGY AND THE F IRS T AMENDMENT: WHAT I S THE RAT IONAL E FOR REGULAT ION?

Moderator: Glen O. Robinson, David and Mary Harrison Distinguished Professor of Law Emeritus, University of Virginia

Speakers:

Bob Corn-Revere, Partner, DavisWrightTremaine LLP

Kurt Wimmer, Partner, Covington & Burling LLP

Christopher Yoo, Professor of Law, Communication, and Computer and Information Science; Director, Center for Technology, Innovation, and Competition, University of Pennsylvania

Marvin Ammori, Assistant Professor of Law, University of Nebraska-Lincoln, Faculty Advisor, Space & Telecommunications Law LLM Program

I watched President Obama address the Democratic retreat a few days ago.  Here’s the full transcript and video.

I liked one answer, which I hope encourages people in government to summon the courage to follow through on their (and our) hopes for change.  It touches on why some people are willing to stand up and be counted, to fight for something better for all Americans.

For me, it is constantly important to remind myself why I got into this business in the first place; why I’m willing to be away from my family for big stretches at a time; the financial sacrifices that so many of you have made; being subject to criticism constantly. You don’t get in this for the fame. You don’t get in it for the title. You get in it because somewhere in your background, at some point in time, you decided there was an issue that was so important that you were willing to stand up and be counted. You were going to fight for something. And you decided you were going to run as a Democrat because there was a core set of values within the Democratic Party about making sure that everybody had a fair shot, making sure that middle-class folks were treated fairly in our economy, making sure that those who were on the outside had a way in that led you to get involved in public service.

And that’s what we have to remind ourselves, especially when it’s hard — especially when it’s hard. You look at an issue right now like health care. So many of us campaigned on the idea that we were going to change this health care system. So many of us looked people in the eye who had been denied because of a preexisting condition, or just didn’t have health insurance at all, or small business owners in our communities who told us that their premiums had gone up 25 percent or 30 percent. And we said we were going to change it.

Well, here we are with a chance to change it.

Yes.  Here’s their chance.  They can’t be judged by what they said they were going to do, or what they hoped they could do (if it weren’t for that darn political pressure they never accounted for), or what in their heart they’d like to do.  They can only be judged on what they actually do.  No excuses.

Their supporters don’t want to see these politicians “go native” in DC, follow the old ways, or get weak-kneed.  These politicians and appointees should remind themselves, as does our President, of why they got into this business in the first place.

Last Friday, Cablevision filed a cert petition to the US Supreme Court in what may be the next Citizens United.

Citizens United, of course, in President Obama’s words, “opened the floodgates” for corporate money to overwhelm the political system. Almost 70% of Americans believe it hands even more power to lobbyists. Opponents of Citizens United (and previous cases leading to it) are considering and introducing remedying legislation.

But, you respond, the Internet remains. Citizens United’s infusion of corporate money will largely go to campaign TV ads and films. The Internet enables speech—through blogs and low-budget, individual videos that can go viral. It enables associations—as individuals find each other and form groups around issues and candidates. It can help aggregate small donors.

The Internet might not act as a perfect counterbalance, you say, but it’s a start.

That’s true. Unless this Supreme Court interprets the First Amendment to eliminate the openness we’ve always expected of the Internet. That is, the Internet was historically open and free to all users because of traditional telecommunications laws (Lemley and Lessig explain). The Bush II administration deregulated access to the Internet—lifting laws applying to AT&T (the largest donor to federal campaigns of any company) and Comcast. Deregulation for Internet access then worked about as well as deregulation of the finance industry—it’s been an utter disaster, placing our nation far behind other nations in terms of the speeds, availability, and cost of Internet access.

Deregulation also has threatened the openness of the Internet. Carriers like AT&T and Comcast have expressed a desire to “manage” other people’s Internet sites and technologies however they want and to extort fees from providers of applications and content. This would undermine the traditional openness of the Internet. AT&T could decide to limit the videos available on YouTube or on a “conservative Youtube”—or could simply require everyone seeking to provide TV programming through the Internet to get permission from AT&T to be on the Internet.  AT&T could impose a surcharge on every iTunes download—or every political donation—and charge campaigns and corporations for every political ad. As AT&T’s former CEO claims, the Internet is “their pipes” and AT&T doesn’t want anyone using those pipes without paying AT&T tribute.

In response to this threat to democracy, advocates and enlightened lawmakers have fought since the Bush II deregulation for a “network neutrality” law to keep the Internet open on all platforms, wired and wireless.

On Monday, the President reaffirmed—again—that he is a “big believer” in network neutrality, no matter how many angry lobbyists the carriers throw at him or the FCC. (He said it more politely, but unmistakably.) The President was answering a question about network neutrality—the number 1 question about the economy uploaded by users for an innovative online interview with the President.

How could the courts screw this up too? If the consumer advocates, scholars, and lawmakers can actually succeed in defeating the lobbying might of AT&T, Verizon, and Comcast, then the courts could overturn the result. You might think that the public’s free speech rights are implicated in their ability to use the Internet to communicate with whomever they want, however they want, through the Internet. But to these courts, the First Amendment belongs to powerful corporations.

Cable lobbyists have argued that cable and phone companies have a First Amendment right to block speech on the Internet. Really. They argue that a case called Turner Broadcasting, a landmark decision from 1997, imposes heightened constitutional scrutiny on any rule impinging on the carriers’ “editorial discretion” to block websites in offering access to the Internet. So even though bloggers, video-makers, and online news outlets might make editorial decisions, the cable or phone company is the ultimate constitutional “editor” of the Internet with inviolable free speech rights.

They argue Turner would likely impose intermediate scrutiny on any law meant to ensure diverse speakers online—namely an Internet openness rule. In doing so, Turner would not, however, promote the wide diversity of diverse and antagonistic speakers—the First Amendment’s most “basic tenet,” according to Justice Kennedy, author of Citizens United. Rather it would succeed in promoting the narrowest diversity of “speakers” controlling American speech—AT&T, Comcast, Verizon, Time Warner Cable, above all others. (I’ve discussed this elsewhere.)

The Cablevision petition for certiorari asks the Court to overrule Turner. Many (like me) view Turner as akin to Lochner, for imposing heightened scrutiny for rules where far more deference is required. But the cable industry views Turner as too soft a hammer. Rather than intermediate scrutiny, the industry seeks strict scrutiny for all rules. The industry is already pointing to Citizens United for its arguments, encouraging the Court to overrule another key speech precedent.

I could try to point to a silver lining. First, I doubt the Court needs to overrule Turner to reverse the FCC, as Cablevision has decent facts for an arbitrary and capricious challenge. But this Court doesn’t always miss an opportunity to transform the law.

Second, I believed that Turner might have applied to cable operators in providing cable TV services, but not to operators when  providing Internet access service. This is because Internet access, like phone service, was historically subject to common carrier rules, removing all “editorial” discretion from Internet access providers, without implicating the First Amendment.

But I am now more skeptical of that silver lining, being reminded of our courts.  A few weeks ago, I was involved in a case involving the FCC’s authority to impose a landmark network neutrality order on Comcast, for blocking peer-to-peer transfers. Comcast had not made a First Amendment argument on appeal; in the opinion below, the (then-Republican) FCC had rejected the First Amendment argument in a mere, belittling footnote, explaining how an open Internet obviously promotes the values of the First Amendment for all Americans. Nonetheless, a few minutes into Comcast’s oral argument before the DC Circuit, a judge asked: “cable operators have some First Amendment rights, and I don’t see that playing out in this case at all.”

The Cablevision case is likely the first step on this path to “playing out” the First Amendment arguments–for carriers to block or interfere with Internet speech.  We’ll see if the Supreme Court uses the Cablevision petition as an opportunity to step towards vindicating the “First Amendment right” of carriers to dominate all our channels of democratic discourse–from the TV of unlimited corporate expenditures to the Internet of unlimited carrier-control.

This guy named Andrew Keen–who’s made a career of comparing Web 2.0 to Nazism and Marxism, spamming people, trolling, and mis-stating the positions of scholars like Lawrence Lessig–was recently hired by a front group apparently to attack consumer groups like Free Press. The method of his attack is to accuse people of being paranoid, radicals, socialist, etc. He’s like a mini-Glenn-Beck. The phone and cable companies hire many like him.

One of his attacks, on TechCrunch, was subject to disgusted, acidic responses in dozens of comments by readers. Another attack, which he placed in The Hill, goes after Free Press for what is a White House and State Department policy position–that we need to ensure an open Internet at home to have moral legitimacy in arguing for an open Internet abroad. Both attacks are noise–kind of the moral equivalent to his spamming. If you read the comments (and responses) to some of the industry’s other little attack dogs, it turns out informed readers can see through the BS of the distracting trolls.

You wonder why AT&T, Verizon, and others hire such vicious little lowlifes. Really, it’s a mystery. It’s a bigger mystery because, at the same time they hire insufferables like Keen in their front groups, they hire really smart, likable people in-house. While some people have been surprised by this, I like a lot of the lobbyists and lawyers at places like Comcast, Verizon, MPAA, and AT&T. They’re nice people, they’re very charming, they’re very smart. They sometimes argue the sky is falling and the economy will collapse (!!!) if you actually try to protect speech and economic innovation with basic network neutrality rules. But they still find a way to sound almost reasonable while playing chicken little. They’re clearly paid to sound reasonable, unlike Keen and others.

Why would these huge companies–expert in lobbying–pay charming, smart people to sound reasonable as their in-house lobbyists and then pay obnoxious, abrasive charlatans in various “think tanks” and front groups?

I’ve decided there are two reasons, but I welcome other thoughts.

First, when people like Keen are spinning paranoia theories (and comparing Web 2.0 to Marxist communism), that makes the carriers’ lobbyists look far more reasonable in comparison. It’s like buying an extremist so your in-house lobbyists look less extreme. It enables these in-house lobbyists to then decry the “rhetoric,” “vituperation,” or “vitriol” of policy debates–debates they’ve actually intentionally turned vitriolic.

Second, anyone who responds to Keen becomes the “other extreme,” which helps marginalize the carriers’ enemies. For example, Keen is attacking Free Press (a group I advise). Keen’s industry backers then go to government officials and say, “Free Press is too far ‘left,’ this guy Keen a little too far ‘right,’ we’ve got your Goldilocks position, in the middle.” Somehow this works for them, because government folks love a compromise; sometimes, it seems they love being in the “middle” even more than being “correct.” Government officials are usually overworked, under severe industry pressure, and like the idea of a “moderate” choice, perhaps a “win-win,” “compromise,” “middle ground,” rather than taking the intense political heat for pursuing the correct, consumer-focused position to address our nation’s real, long-term challenges. In reality, Free Press is generally correct. Keen is generally nuts (even when he’s not talking communists and Nazis). And the carriers (on the contentious issues where they oppose, say, Free Press) are not correct, not in the middle, but just flat wrong. Creating front groups just helps create an optical illusion of “moderation”–rather than the truth, “wrongness”–for the carriers’ likable in-house lobbyists.

These front groups also put people like me in a catch-22; do I call out the Nazi-likening, Communist-seeking, elitist-extremist? Or does that permit my charming, in-house industry friends to look above the fray and above the noise… moderate if you will?

In short, these front groups exist to distract from real issues, to make industry look reasonable, and to make anyone responding to them look like the “other” extreme, rather than the sensible, consumer-focused policy advocate. It’s for this reason that I tend to turn down invitations to speak on panels sitting besides front-group hacks rather than in-house lobbyists. And I tend not to respond to these people, if I can help it.

But when these corporations–and their charming, “reasonable” lobbyists–continue to hire these professional trolls, they should to be called out for poisoning debate.

Last Friday, an appeals court heard arguments on Comcast v. FCC, which centered on the landmark 2008 FCC Net Neutrality ruling ordering Comcast to stop blocking users’ ability to use peer-to-peer technologies like BitTorrent. The decision was a major victory for consumers—signifying that the FCC would act to preserve an open Internet when phone and cable companies tried to interfere with the applications and content chosen by users.

On Monday, Comcast’s Executive Vice President, David Cohen, published a blog post about the case, where he claimed, essentially, that the FCC had been unfair to Comcast.

Namely, said Cohen, Comcast lacked “fair notice” the FCC would act on consumer complaints about Network Neutrality violations.  Moreover, he said, Comcast lacked fair notice that the FCC would judge Comcast by the standards of the FCC’s well-known 2005 Internet Policy Statement, which declared that Americans are “entitled” to use the legal applications and content of their choice on the Internet.

Although Cohen doesn’t mention this part of the 2008 ruling, the FCC also stated that Comcast’s actions in that proceeding raised “troubling questions about Comcast’s candor,” which is the bureaucratic way to say “lying… a lot… to the public and government, about interfering with the Internet.”

And what Cohen doesn’t say is he has chutzpah to argue about fair notice, as Comcast gave the public no notice at all that it was blocking online technologies.

Notice to Comcast

Let’s take the Adelphia order. In 2006, Comcast and Time Warner Cable bought the cable assets of a company called Adelphia, and the FCC had to approve the transfer.

Free Press and other groups challenged the merger and requested a Network Neutrality condition prohibiting Comcast “from discriminating against providers of content, video, or voice services offered via broadband.”

The FCC rejected the condition, stating that the FCC would accept complaints and judge Comcast based on the FCC’s policy statement: “This statement contains principles against which the conduct of Comcast, Time Warner, and other broadband service providers can be measured.” And the Commission assured consumers  that “[i]f in the future evidence arises that any company is willfully blocking or degrading Internet content, affected parties may file a complaint with the Commission.”

When the FCC says “affected parties may file a complaint,” that sounds like the FCC would actually accept the complaint.  Unless the FCC was welcoming consumer complaints it planned to ignore, Comcast had fair notice that the FCC would act on complaints just like the complaint brought by Free Press and others, for “willfully blocking or degrading Internet content.”

Comcast: Notice for Me, Not for You

Comcast provided the public no notice.

Comcast was blocking online technologies in various ways from 2005 to 2008. Comcast denied the blocking over and over. When one user—Robb Topolski—proved that Comcast was blocking these technologies, Comcast kept lying.

For example, a Comcast spokesperson said, “We’re not blocking any access to any application, and we don’t throttle any traffic.”

Whatever you call that (“a lie”), you can’t call it fair notice.

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.