Senator Tillis To President Biden: How Dare You Nominate To The FCC Someone Prepared To Protect The Public

from the he-doth-protest-too-much dept

Senator Tillis penned a letter to President Biden this week that is breathtaking in its obtuseness. In it, he demanded that the President withdraw the nomination of Gigi Sohn to the FCC for having championed the longstanding ability of the public to receive over-the-air signals on public airwaves. Or, in other words, for having done exactly what we should want an FCC commissioner, tasked with the stewardship of the nation’s spectrum, to do.

In his outrage at how fit for purpose her career has been for this role, Tillis betrays how badly his own office has abandoned the same public interest she has long protected. In particular, by overstating the upshot of a single court’s never-reviewed decision, and making other unfounded, scurrilous accusations against her, Tillis falsely suggests it was she who has somehow done wrong in supporting Locast. And by taking the side of the plaintiffs he gladly turns a blind eye to the actual wrong that has been committed against the public by the broadcasters who, in suing Locast, have succeeded in robbing the public of the benefit of its own broadcast spectrum.

It’s a serious deprivation that Senator Tillis seems all too eager to condone, because what he conveniently ignores is that spectrum licenses aren’t supposed to be gifts to licensees for them to monopolize for their own self-interest. Rather, the quid-pro-quo behind the licensing of this public resource is to make sure that, by letting broadcasters use the spectrum for their programming, the public will then get the benefit of that programming. If there’s no benefit to be had, then there’s no point in the public ever licensing the spectrum to broadcasters in the first place.

Yet that’s where we are, with much of the public now cut off from their own public airwaves and the programming they are supposed to be able to receive. Because for the many people who live in areas with poor reception, or who don’t have rabbit ears (when’s the last time you saw a tv sold with a set?), or who can’t afford (or are not interested in affording) the hefty monthly charge needed for a cable subscription in order to get access to the over-the-air stations they should otherwise be able to watch, it was only with the antenna-renting services like Locast that they could finally enjoy the programming to which they are entitled. But now, thanks to certain broadcasters misusing copyright law and their privileged position as incumbent public spectrum licensees to shut these services down, they can’t.

If these broadcasters are no longer interested in providing over-the-air programming to the public, that’s a choice they can make. In finding it so offensive that services like Locast would help their over-the-air programming actually reach public audiences it would appear that’s a decision they have indeed made. But then they should have to relinquish the spectrum so that it can be reallocated to someone who does want to make use of the spectrum license to provide over-the-air programming to the public. In any case they should NOT be able to cut the public off from ALL broadcast programming just because they don’t want to reach the public that way anymore themselves. Yet that’s what they have done, because with no more Locast, and no more Aereo, it’s not just their programming that the public has lost access to but the programming of every other broadcaster, including those who depend on over-the-air reception for their stations to survive, since now the public has no way of receiving their channels either.

It’s a deplorable state of affairs out of step with the spirit, if not also letter, of public spectrum licensing, as well as the constitutional purpose of copyright law to promote the progress of knowledge and culture, which has now been physically obstructed by the loss of these antenna-renting services. And it’s about time we had someone in Washington ready, willing, and able to stand up for the public and do something about it. It shouldn’t just be Gigi Sohn of course – Congress itself needs to be a better steward of the public interest in situations like these where it has been so conspicuously subordinated – but she’s a great start.

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Companies: locast

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Comments on “Senator Tillis To President Biden: How Dare You Nominate To The FCC Someone Prepared To Protect The Public”

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20 Comments
That One Guysays:

'How dare you act completely unlike me?!'

It’s so very telling how not falling all over yourself to serve private companies is considered such a heinous character flaw that it supposedly justifies no less than revocation of a government office nomination, though looking over past TD articles covering Tillis I can certainly see why they would see such a trait as so foreign and undesirable.

Anonymoussays:

Is it possible for a court to rule certain copyright laws unconstitutional if it can be demonstrated that they work against "promote the progress of knowledge and culture" in the sense of whatever that was supposed to mean? Have that ever been done? If the laws don’t have to be justified in that way then the constitutional purpose thing behind copyright is just some meaningless Orwellian nonsense similar to "national security" that the government uses to invoke like magic words to get around free speech protections, isn’t it? Letters or Spirit or whatever, it doesnt matter, it’s what that what the government says to be. If the government says this and this is for in name of "knowledge and culture", the courts are mostly going to be, "okay whatever".

Rico R.says:

Re:

I raised a similar argument on Techdirt years ago when the EFF’s suit to overturn section 1201 of the DMCA was allowed to move forward. Long story short, I believe the anti-circumvention provision, both on its face and as applied, cannot withstand constitutional scrutiny when looking at the "promote the progress of science" phrase. Why the EFF never argued that is beyond me.

Rico R.says:

Is Sohn REALLY an anti-copyright activist?

From Tillis’s own letter to Biden:

Ms. Sohn even opined that "advances in encryption technology may allow us to craft a framework to fully protect content." For those who depend on strong intellectual property protections for their livelihoods, "may" simply is not sufficient.

There, it sounds like Sohn is advocating for some sort of DRM scheme. Tillis’s comments aside, you can’t be both pro-DRM and anti-copyright. Sohn may advocate for some good copyright policy (which Tillis would 100% be against), but that isn’t exactly a shining example.

And as far as "may" not being sufficient, I have two things to say. First, DRM as it currently stands is failing a mission it can never succeed at. It already isn’t "sufficient" at stopping piracy. What it is good at is annoying paying customers for making something they paid for an inferior product. If people depend on DRM for their livelihoods, their livelihoods are already in trouble.

Second, big copyright holders are on the cusp of getting everything they wished for. They got the EU copyright directive passed with Article 17 included. It’s only a matter of time until they start lobbying for something similar to be passed in the US. And then, they still won’t be happy. Even when they happily destroy the internet, will that still be short of sufficient?

I just hope the duly elected copyright maximalist in the oval office doesn’t back down from supporting this candidate. He already stood up to Hollywood when they were dead-set against allowing IP exemptions for COVID-19 treatment information. And it also helps that Tillis is also from the opposite political party. So, here’s hoping he’ll be 2 for 2 in this regard!

Anonymoussays:

Re: Is Sohn REALLY an anti-copyright activist?

And as far as "may" not being sufficient, I have two things to say. First, DRM as it currently stands is failing a mission it can never succeed at. It already isn’t "sufficient" at stopping piracy. What it is good at is annoying paying customers for making something they paid for an inferior product.

More notably, it really shows the true face of copyright maximalists – they might claim that their propositions and laws don’t require filters or "notice and staydown" schemes, but every so often their actual desires shine through the flimsy facade they put up. For a copyright maximalist, "may" is insufficient. Anything less than "this shit goes down on my say so" is insufficient.

Anonymoussays:

Re: Is Sohn REALLY an anti-copyright activist?

you can’t be both pro-DRM and anti-copyright.

I don’t see why not.

Nobody should be able to legally prevent somebody else from copying anything placed in a tangible medium. -anti-copyright

All creators are encouraged to use any measures (technical, commercial, or otherwise) which they believe will aid them in benefiting from their creation. -pro-DRM

Neither position contradicts the other.

In fact, the whole point of DRM as a concept is that you do not need to rely on copyright to prevent copying of your product. It may not work too well at the moment… but then copyright doesn’t work too well either.

ECAsays:

So.

do we inevitably fall into the Clutches of Wild capitalism?
If you cant PAY for it 100 times over(over priced to hell, paid for until you paid 1 time for the service and 99 times for the OWNERS)

Its interesting that in all this time you would think that the ISP/Phone/Cellphone/Corps, would have had enough money to buy out all the Channels so that they could get paid back Even more money, by over charging for the Access to the channels, as well as to all the other services.
Or did they learn that its not compatible with the mentality they desire, JUST BEING A BILL COLLECTOR. They dont need to make anything.

Anonymoussays:

I fucking hate it when, if you propose the slightest reform of some institution, you are instantly cast as that institution’s mortal enemy. In the preface to Jane Eyre, Charlotte Brontë writes "Conventionality is not morality. Self-righteousness is not religion. To attack the first is not to assail the last. To pluck the mask from the face of the Pharisee, is not to lift an impious hand to the Crown of Thorns." But you’d think so if you were Thom Tillis.

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