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Free wireless Internet with an asterisk?

'Net Insider By Scott Bradner, Network World
June 05, 2008 02:41 PM ET
Scott Bradner

Network World - The FCC chairman has floated a proposal that would result in a free nationwide — but censored — Wi-Fi Internet service, according to a recent news reports. Kevin 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 will happen 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 with yet another demonstration of short-sightedness (this time mandated by Congress). It collected more than $19 billion in bids for spectrum to be freed up by the move to all
digital broadcast TV. (See "FCC hauls in $19.6 billion for 700MHz auction".) 

This, of course, is $19 billion that will not be available to build out the services to use the spectrum and, thus, a $19 billion tax inefficiently gathered by the carriers, on the eventual users of the services. This is a lot of money, but not enough to also sell off the "D Block" of spectrum that was to be shared with public-safety users. So 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 commission had failed to understand the potential economic driver that an expansion of unlicensed spectrum could be. (See "FCC ignores the lesson of Wi-Fi".) 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".)

The main strings are that some of the spectrum would have to be set aside for free wireless Internet and there would be a requirement that the network be available to at least 50% of the covered population within four years and to 95% within 10 years. 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: "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 succeed it would have to ignore multiple Supreme Court decisions knocking down congressional attempts at censoring the Internet. (See, for example,  material on the Communications Decency Act.) The FCC is currently in court over its attempts to censor broadcast TV. Any restriction like this new one would be instantly in court and, if history is any precedent, tossed out.

Clearly, obscenity on the Internet is a very real problem to which there are only partially successful technical solutions. Even if it were constitutional, network-based filtering is easily circumvented if both ends want to do so. This is one reason 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 Martin — he stays focused on naughtiness in spite of anything else going on.

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