Thursday, September 15, 2016

Constitution Day at the FCC

Constitution Day officially is September 17, 2016. This year marks 229 years since the signing of the Constitution on September 17, 1787, in Philadelphia.
Not many people celebrate Constitution Day, but I’ve always thought it worthy of commemoration. It’s an opportunity to take a moment – or maybe more than a moment – to think about the Constitution’s meaning and its relevance to today’s issues.
Over the years, I’ve written often about the ways the FCC’s actions implicate constitutional strictures and constitutional values. Because the FCC regulates media, communications, information services, and now the Internet, it is not surprising that many of the agency’s actions implicate the First Amendment’s free speech guarantee.
While many of the FCC’s actions present a target-rich environment, today I want to focus on just one current proceeding that implicates several different constitutional provisions – and that appears to run up against constitutional constraints.
The proceeding I have in mind is the Commission’s proposal for the government to mandate a new design, with new functions and features, for video navigation devices and apps, and, now, in its latest iteration, even to impose a compulsory license on video distributors that will dictate the terms and conditions under which they must make available their video programs to all who wish to take them.
Let’s consider the ways this proposal implicates constitutional strictures.
First, whether or not the FCC acknowledges this explicitly in so many words, the agency proposes to require video distributors like Comcast, AT&T, Charter, Verizon, CenturyLink, Frontier, and the multitude of others, to utilize a government-prescribed format, rather than one of their own choosing, for presenting a navigation search menu. And the video distributors will not be permitted to “discriminate” in the way they present the search menu content and functions.
No less than a government diktat regarding the content of video programing, a government diktat prescribing the permissible presentation, arrangement, and content of a search menu violates the First Amendment’s free speech guarantee as well. In light of the acknowledged competitiveness of the video distribution market, including the competitiveness of the navigation device and app market segment, the government can offer no compelling reason for restricting the speech of the video distributors.
Second, the FCC’s proposal most likely runs afoul of the Constitution’s Intellectual Property Clause because it almost certainly would lead to violation of copyright owners’ rights. As the Copyright Office explained in its August 3, 2016, letter to members of Congress: “The rights protected by the Copyright Act are ‘exclusive’ to the copyright owner, meaning that the copyright owner generally has full control as to whether or how to exploit his or her work, including by entering into licensing agreements.” Even while the FCC has continued to selectively leak revisions to its proposal, nothing has changed the fact that copyright protection would be jeopardized under a regime that requires programming to be shared across multiple devices under an open standard license.
And now, the FCC appears – again without explicitly acknowledging this in so many words – intent on imposing a new compulsory license that would require copyrighted programming to be made available to all entities on a non-discriminatory basis. Of course, such a compulsory license is the very opposite of the exclusive control which Article 1, Section 8, Clause 8 of the Constitution confers on copyright owners: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." For a full historical and jurisprudential examination of the Founders’ intent regarding the Intellectual Property Clause, please see my book, co-authored with Free State Foundation Senior Fellow Seth Cooper, The Constitutional Foundations of Intellectual Property.
It is true that the FCC doesn’t enforce copyright violations and is not a repository of copyright expertise. All the more reason for the Commission to consider carefully the views of the government entity – the Copyright Office – possessing specific copyright expertise and charged with advising Congress regarding copyright policy. The FCC, like all government agencies, has a responsibility to uphold constitutional values. If the FCC acts consistently with its responsibilities, it will pull back its video navigation proposal.
Finally, the FCC keeps revising its proposal “on the fly.” And now, in its latest iteration, the proposal includes the compulsory license discussed above. This appears to be – although all we have to go on are FCC Chairman Tom Wheeler’s blog and a minimal “fact sheet” – a significant departure from the original proposal. As a matter of due process – even aside from compliance with Administrative Procedure Act notice and comment requirements – the agency should put its latest revised proposal out for public comment in a “Further Notice of Proposed Rulemaking.”
Such a “Further Notice” would enhance the prospects that the Commission would end up with a result that constitutes sound policy and comports with the law – or at least a result that comes closer to those obvious goals. Following this course seems to be required as a matter of fundamental fairness, which is what the Constitution’s due process clause is all about.
Again, September 17 is Constitution Day. Don’t let it pass without giving some thought to what the Founders bequeathed to all of us.
Truth be told, the FCC commissioners ought to consider everyday Constitution Day as they conduct the agency’s business. But, for now, perhaps Chairman Wheeler and his fellow commissioners will use the occasion of this particular Constitution Day to stop and reflect on how the agency’s problematic navigation device proposal comports with important constitutional constraints and values.