They may not agree on net neutrality or the Fairness Doctrine, but almost two dozen advocacy groups from liberal to libertarian do concur on one issue: they hate Federal Communications Commission Chair Kevin Martin's proposal for a national broadband service with the porn filtered out.

"Unconstitutional and unwise," their Friday filing calls the plan, which they charge amounts to a "government mandated 'blacklist' of websites." The filtering component would limit the system "so dramatically that the usefulness of the service would be radically reduced." Plus, if the agency actually approved the scheme, it would face a tsunami of lawsuits.

So contend the Center for Democracy and Technology (CDT), People for the American Way, Adam Thierer of the Progress and Freedom Foundation, the Public Interest Spectrum Coalition, the American Booksellers Association, the Von Coalition, the Electronic Frontier Foundation, and fifteen other groups. It was inevitable that this shoe would drop on a scheme that is already taking heavy incoming fire from the wireless industry for its alleged technical shortcomings.

Free smutless broadband

In late June the FCC launched a proceeding on an idea long advocated by M2Z Networks: a free, national wireless broadband service. The proposed system would work its magic way up there in the Advanced Wireless Services area number three region of the spectrum (AWS-3, 2155-2180 MHz). Bidders would compete for the zone in a public auction, then commit to rolling the plan out to 95 percent of the United States over a ten year period at 768Kbps, the FCC's new minimum rate for "high speed" broadband. The provider would make money on the service via ad revenue, paying five percent of its gross annual income to Uncle Sam.

The CDT et al filing doesn't have any issues with this. It's the filtering part that's the big problem, the 22 groups say. The FCC's proposal makes it pretty clear how it is supposed to work. The auction winner must provide a feature that "filters or blocks images and text that constitute obscenity or pornography and, in context, as measured by contemporary community standards and existing law, any images or text that otherwise would be harmful to teens and adolescents." The outline defines teens and adolescents as "children 5 through 17 years of age."

The CDT filing warns that not only does this plan violate the First Amendment, it repeatedly crosses the Supreme Court's interpretation of the First Amendment in its important indecency rulings.

A new standard for censorship

The FCC's filtering plan "would censor content far beyond anything ever upheld by any court for any medium," warns the CDT group. Vague and over broad, the proposal's provision to block out anything that might be disturbing to five year olds could deny access to a wide variety of content, including conventional news reports. "This prohibition would plainly infringe on the rights of adults to access broad categories of lawful speech," they write.

The idea also runs afoul of several key Supreme Court cases, CDT warns, most notably the crucial Reno vs. ACLU ruling of 1997. That decision bumped off a big chunk of the Communications Decency Act's prohibition against the "knowing" transmission of indecent images over the Internet to minors. The high court insisted that in regulating indecent speech, the government must mandate "the least restrictive" way to protect children from smut: client-side filtering software being the best candidate, then and now.

Don't count on Pacifica



And so the FCC can't rely on that old standby, Pacifica vs. FCC (1978), to justify this proposal, argues CDT, because unlike terrestrial radio, undesired content on the Internet can be filtered out at the user end. Nor could an "opt-in" filtering system get around the fact that the FCC's proposal effectively creates a filtering blacklist. "The FCC cannot constitutionally serve as a censorship board that selects which Internet websites should be available to all Americans," CDT says. In addition, the Commission's plan violates an often forgotten part of Pacifica, its prohibition on government censorship in advance.

"Given the insurmountable constitutional problems raised by the filtering mandate," the CDT group observes, it would serve as target practice for First Amendment lawyers if actually approved by the FCC. Their filing concludes by suggesting that the FCC go back to square one on the idea and try it again, sans filtering.

This proposal isn't just getting piledriven by civil liberties groups. It's also drawing fire from just about every big wireless company around, with T-Mobile leading the pack. Its latest statement—over 100 pages long—charges that the AWS-3 plan will mess with mobile receivers running on the nearby AWS-1 band. "For consumers, the interference will be extensive, widespread, and unpredictable," T-Mobile warns, "significantly degrading their service."

The company says it wants the FCC to extend this proceeding and submit its proposed AWS-3 specs to independent testing. But it's obvious that the commercial wireless community hates the basic idea on principle. "The Commission's free service proposal would be of little or no help to those it is designed to support, given that the 'free' aspect of the service would be vastly inferior to any commercial service on the market and will not even be available for years," T-Mobile concludes.

FCC Chair Martin has been enjoying a good run of late, with the Sirius/XM merger in cement and a net neutrality order on Comcast due this Friday. But his "family friendly" broadband plan could definitely use a friend or two about now.

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