Maryland conservative think tank Free State Foundation called out mayors this week who oppose the FCC’s recent vote to roll-back Net Neutrality rules, yet appear to restrict internet use on municipal broadband networks with service terms that prohibit certain types of content.
Free State Foundation Board member Enrique Armijo, a law professor at Elon University and also a fellow at Yale’s law school, wrote in a policy paper about the “hypocrisy” of many local and state governments that claim what the FCC recently voted on is unlawful. “The mayors of more than 50 cities, many of which own or operate their own municipal broadband networks or are exploring ways to do so, want the FCC to preserve the restrictions on private ISPs” set out in the previous 2015 order. Abandoning that order, the mayors argue, would “permit blocking, throttling and other interference with access to the internet,” states Armijo.
The record of local governments with the restrictions they place on speech traffic carried over their municipal broadband networks is “decidedly mixed,” while pointing out they may engage in the same practices. For example, the “Acceptable Use Policy” for the municipal utility-owned and operated Chattanooga, TN, fiber optic network, bars users from using the network to “transmit, distribute, or store material… that is,” in addition to illegal or obscene, “threatening, abusive or hateful,” or that offends “the privacy, publicity or other personal rights of others.”
In New York City, the Terms and Conditions for GOWEX, the private partner offering internet access for NYC as part of the city’s Wireless Corridor Challenge, “bars the transmission of data . . . via Hotspots managed by GOWEX . . . whose content is threatening, derogatory, obscene, pornographic.” It continues: “The transmission of any other type of material which constitutes or incites a conduct which may be considered a criminal offense, is prohibited.”
These terms of service “decidedly are not examples of network neutrality” according to Armijo, but the government owned networks “severely restrict users’ speech” on the network in exchange for access. “It’s worth remembering that the First Amendment prohibits government from restricting speech, not private parties,” he writes in support of the FCC’s recent action.
“We should thus be wary of mayors arguing that what is good for Comcast or Verizon is no good for them,” states Armijo. “The fact that they proclaim, however loudly, that they favor Net Neutrality, including the restrictions on blocking and other practices contained in the FCC’s 2015 Order, while employing terms of service for their own government networks that are wholly inconsistent with those restrictions, ought to give one pause.”
January 5, 2018