Joint Public Interest and Industry Comments
The undersigned commenters represent a very broad coalition of public interest and industry groups that have divergent views on many of the issues raised in this proceeding, but that strongly agree on one point: the content filtering mandate proposed by the Commission would be unconstitutional and unwise. The undersigned strongly urge the Commission to abandon the proposed filtering mandate.
The filtering proposal has numerous constitutional and legal problems. First, the reach of the filtering mandate is extraordinarily broad, and would attempt to censor content far beyond any content regulation regime that has been previously upheld in the face of constitutional challenge. By requiring an AWS-3 service provider to block access to any text or video content that might harm a 5-year-old child in any way, the Commission would be reaching past the narrow categories of content regulation that the Supreme Court has upheld in the past.
Second, even if the scope of the filtering mandate were more narrowly focused, it would conflict with the First Amendment analysis that the Supreme Court applied to Internet access in the seminal Reno v. ACLU decision. In that case, the Court ruled that the use of filtering software by parents and individual users was a constitutionally less restrictive alternative to governmental regulation of Internet content. Because of the nature of the Internet – whether delivered by wire or wirelessly – users (and parents) can control the content they access, without any need for governmental regulation of content. Neither the Pacifica nor American Library Association cases would support a different conclusion.
Moreover, even if the Commission were to require filtering on an “opt out” or “opt in” basis, the Constitutional problems would not be avoided. Opt-out filtering would impose an unconstitutional burden on listeners and recipients of Internet communications, and both opt-out and opt-in filtering would violate the First Amendment rights of speakers and other content providers on the Internet. Simply put, the First Amendment does not allow a government- mandated “blacklist” of websites to be blocked.
Beyond the serious constitutional problems raised by the filtering proposal, the requirement would also violate the terms and intent of two federal statutes – 47 U.S.C. § 326 (which prohibits the Commission from “interfer[ing] with the right of free speech”) and 47 U.S.C. § 230 (which promotes user control over content and limits burdens on service providers). The filtering requirement would also limit what people could do online using the free AWS-3 service so dramatically that the usefulness of the service would be radically reduced. Finally, the mandated filtering would also certainly lead to legal challenges that would delay the implementation of the proposed access service.
For all of these reasons, the Commission should step back from its proposed mandate and should – as directed by the Supreme Court in Reno v. ACLU – allow parents and individual Internet users to decide for themselves whether to use filtering technology and what filtering scheme to use.