How to Control Internet Content

Earlier in the spring, Democrat staffers on the House Energy and Commerce Committee let slip that they were discussing openly with the FCC the legal mechanism by which the FCC would assert control over the Internet and, specifically, Internet radio:

“This isn’t just about Limbaugh or a local radio host most of us haven’t heard about,” says Democrat committee member. “The FCC and state and local governments also have oversight over the Internet lines and the cable and telecom companies that operate them. We want to get alternative views on radio and TV, but we also want to makes sure those alternative views are read, heard and seen online, which is becoming increasingly video and audio driven. Thanks to the stimulus package, we’ve established that broadband networks — the Internet — are critical, national infrastructure. We think that gives us an opening to look at what runs over that critical infrastructure.“

Let’s speculate about how this would work.

The Porkulus bill – both Senate and House versions and the final version – are searchable at ReadtheStimulus.org.

Under the final version of Porkulus, Division A, Title II provides that $4.7 billion will be allocated for a ‘Broadband Technology Opportunities Program’ (BTOP). BTOP, found in Division B, Title VI, provides grants for infrastructure buildout in unserved and underserved areas and requires implementation of a ‘National Broadband Plan’:

(2) The national broadband plan required by this section shall seek to ensure that all people of the United States have access to broadband capability and shall establish benchmarks for meeting that goal. The plan shall also include—

(D) a plan for use of broadband infrastructure and services in advancing consumer welfare, civic participation, public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, worker training, private sector investment, entrepreneurial activity, job creation and economic growth, and other national purposes.

Subsection (D) is on the distinctly squishy side, having to do with government ‘encouragement’ of some activities and not of others. It also provides an open door to content regulation. Keep this in mind as we continue.

Porkulus appropriates the $4.7 billion for BTOP to the National Telecommunications and Information Administration. NTIA is part of the Commerce Department and functions as the direct advisor to the President on telecommunications matters. NTIA is, incidentally, also the agency responsible for the ongoing digital converter box fiasco.

In its role as presidential advisor, NTIA makes policy. From its website:

NTIA’s Office of Policy Analysis and Development (OPAD) supports NTIA’s role as principal adviser to the President, Vice President, and Secretary of Commerce on telecommunications and information policies.

OPAD’s goal is to enhance the public interest by generating, articulating, and advocating creative and influential policies and programs in the telecommunications and information sectors that promote innovation, competition, consumer welfare, and economic and social opportunities for all, and that remove impediments to the growth and vitality of these sectors.

OPAD analyzes a wide range of issues affecting telecommunications and information. OPAD makes policy recommendations in such areas as media (e.g., radio, television, cable); wireless services and radio spectrum management; wireline competition; the Internet; domain names, and electronic commerce; new advanced broadband networks; and public interest issues related to telecommunications and information services.

Under Porkulus, the Assistant Secretary overseeing NTIA can funnel an undetermined amount of money to the FCC in the performance of its duties in connection with BTOP. And the FCC has already asserted jurisdiction over the Internet through its ‘Broadband Policy Statement FCC-05-151’. Under Policy FCC-05-151, the FCC generally supports the notion of Network Neutrality.

The House version of Porkulus specifically required adherence to Policy 05-151. And as it turns out, only the House version of Porkulus contained Policy 05-151, so it’s small wonder that Democrat House staffers had the foreknowledge to discuss Internet content control with the FCC. Although the policy was absent from the Senate version of Porkulus, it did find its way into the final version (although the policy number is misprinted as ’05-15′, rather than ’05-151′):

Concurrent with the issuance of the Request for Proposal for grant applications pursuant to this section, the Assistant Secretary shall, in coordination with the [Federal Communications] Commission, publish the non-discrimination and network interconnection obligations that shall be contractual conditions of grants awarded under this section, including, at a minimum, adherence to the principles contained in the Commission’s broadband policy statement (FCC 05-15, adopted August 5, 2005).

So, let’s put this all together, shall we? The Broadband Plan found in BTOP opens the door to content control using squishy statutory language about ‘consumer welfare’, ‘civic participation’ and the like. The FCC will implement BTOP under a policy it wrote itself that nakedly asserts FCC jurisdiction over the Internet and broadband. The Congress appropriated the money for BTOP and the Broadband Plan to an agency that both reports directly to and advises the President on all telecommunications matters and makes policy in a similarly squishy way.

Are we getting some idea of what the President and his henchmen could do with this entire monstrosity? And in the words of the House staffers, it’s all ‘critical infrastructure’.

All I can say is, ‘conservatives beware’.