title:

Free wireless Internet with an asterisk?

By: Scott Bradner

According to the Wall Street Journal the chair of the US Federal Communications Commission has floated a proposal that would result in a nation-wide free, but censored, WiFi Internet service. Chairman Martin's proposal is to try again to auction off some of the spectrum that failed to garner the required minimum bid during the recent auction. The likelihood that this proposal makes it to reality seems to be quite low but the proposal does demonstrate an impressive single mindedness on the part of the FCC chair.

The FCC is just about finished up with yet another demonstration of short sightedness (this time mandated by Congress). They collected over $19 billion in bids for the spectrum to be freed up by the move to all digital broadcast TV. (See FCC hauls in $19.6 billion for 700 MHz auction

http://www.networkworld.com/news/2008/031908-fcc-700nmhz-auction.html). This is, of course, $19B that will not be available to build out the services to use the spectrum and, thus, a $19B tax, inefficiently gathered by the carriers, on the eventual users of the services. This is a lot of money, but nit enough to also sell off the "D Block" that was to be shared with public safety users. So now the FCC has to try again to auction off this chunk of spectrum.

I complained when the FCC set up the rules for the auction that the FCC had failed to understand the potential economic driver that an expansion of unlicensed spectrum could be. (See FCC ignores the lesson of Wi-Fi - http://www.networkworld.com/columnists/2007/080707bradner.html) The news over the last few days could be read that the FCC had rethought the situation and realized that I might have had a point but there is no reason to think that happened.

The Wall Street Journal and others reported that FCC Chair Kevin Martin was now talking up a proposal to auction off a different chunk of spectrum with big strings attached. (See FCC considers offering spectrum for free wireless Internet - http://www.networkworld.com/news/2008/052908-fcc-considers-offering-spectrum-for.html?inform?ap1=rcb) The main strings are that some of the spectrum would have to be set aside for free wireless Internet and that there would be a requirement that the network be available to at least 50% of the covered population within 4 years and to 95% within 10years. Oh, yeh, and one other string - use of this free service would be censored so that users could not view pornographic or obscene material.

The Journal reported that: "Details about how to define what content would be unacceptable for viewing over the free network is still under discussion." I bet.

I'm no constitutional lawyer but it's hard to see how such a restriction could pass constitutional muster. For the FCC to succeeded it would have to ignore multiple Supreme Court decisions knocking down congressional attempts at censoring the Internet. (See, for example, Communications Decency Act material at http://www.sobco.com/papers/index.htm.) The FCC is currently in court over its attempts to censor broadcast TV. Any restriction like the one would be instantly in court and, if history is any president, would be tossed out.

Clearly, obscenity on the Internet is a very real problem. A problem to which there are only partially successful technical solutions. Even if it were constitutional, network-based filtering is quite easily circumvented if both ends want to do so. This is one reason that courts have found that such requirements are ineffectual blunt instruments that do more harm to legitimate information transfer than to the transfer of obscene materials. But, you do have to admire FCC Chair Martin - he stays focused on naughtiness in spite of anything else going on.

disclaimer: I'm sure that some hormone-influenced Harvard undergraduates can be quite naughty indeed but they seem to be able to still figure out how to get an education. The university has not expressed an opinion on the naughtiness fixations of commission chairmen, if there is one implied above it is mine alone.