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.
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