Marsha Blackburn Continues To Be Rewarded For Screwing Up The Internet

from the rooting-against-your-self-interests dept

You'd be hard pressed to find a bigger telecom sector crony than Tennessee Representative Marsha Blackburn. Blackburn has long made headlines for her support of SOPA, attacks on consumer protections like net neutrality and the FCC's broadband privacy rules. She's also come out in favor of turning ISPs into censors, and has been first in line to support giant ISP-backed protectionist state laws hampering competition. AT&T is routinely one of Blackburn's top donors, and her home state of Tennessee remains one of the least connected states in the nation as a direct result.

Even in our current hyper-tribalistic, post-truth reality, you'd have a hard time arguing that Blackburn has been anything but terrible for the health of the internet and consumer rights. Yet somehow, Blackburn just keeps getting rewarded for giving consumers the tech policy equivalent of a giant middle finger.

Shortly after her attacks on net neutrality (Blackburn absolutely adores the idea of letting the biggest companies buy an unfair market advantage from ISPs) Blackburn was promoted to head the Communications and Technology subcommittee. And this week, Blackburn successfully jumped from the House to the Senate, beating challenger and former Tennessee Governor Phil Bredesen to nab the Senate seat vacated by departing Tennessee Senator Bob Corker. Her win was, unsurprisingly, heralded as a big win for the public welfare by the state's political apparatus:

"Marsha Blackburn demonstrated the type of conservative leadership Tennessee voters want in Washington,” National Republican Senatorial Committee Chairman Cory Gardner said in a statement Tuesday evening. “We want to congratulate Senator-elect Blackburn on a hard-fought victory and look forward to her working in the U.S. Senate to confirm conservative judges, push pro-growth reforms and advocate for policies that improve the lives of all Tennesseans."

It's another example where blind partisan fealty tends to trump common sense, resulting in people who can only see in red or blue cheerfully voting against their own best self interests in what winds up being little more than a self-immolating, facts-optional game of team sports. As we've noted constantly, issues like net neutrality really aren't partisan, since an overwhelming bipartisan majority of Americans support this and other basic checks on monopoly power. ISPs and lawmakers just like to frame such tech issues as partisan, as sowing division hinders consensus and helps stall meaningful change and reform.

Last minute efforts by Taylor Swift apparently didn't help convince Tennessee voters that Blackburn's not their ally. Neither did Consumer groups efforts to educate Tennessee voters about Blackburn's continued tendency to screw them; an effort that at one point involved crowdfunding billboards posted in Blackburn's home district:

With Blackburn how holding a more powerful position in the Senate, Tennessee voters (and the rest of us) can look forward to more of the same. Blackburn is always AT&T's first stop when the company wants to shovel some law its lobbyists wrote into the legislative bloodstream. That was made clear when Blackburn pushed both a fake net neutrality bill and a fake privacy bill, both with only one real goal: to prevent tougher state or federal laws from being passed. As giant ISPs continue their relentless assault on both competition and federal and state oversight, expect Blackburn to play an essential, starring role.

On the plus side, a freshly-reconstituted House filled with more net neutrality supporters should slow any telecom-industry efforts to pass wishlist legislation, while providing something vaguely resembling oversight for the Ajit Pai FCC. Still, it's incredible to watch politicians like Blackburn routinely sell out the majority of her constituents on tech policy, then watch those same constituents happily root against their own best self interests by giving her an endless series of promotions.

Filed Under: broadband, competition, marsha blackburn, net neutrality, privacy, tennessee
Companies: at&t

Appeals Court Blocks DEA's Attempt To Bury Lawsuit Settlement Terms

from the you-serve-the-public,-remember? dept

The government wants secrecy just because and the Sixth Circuit Appeals Court isn't having it. The government entity requesting extra secrecy with zero justification is the DEA. And it's likely requesting it so other doctors it's abused won't come asking for similar settlements.

The specifics of the case trace back almost two decades. Two doctors -- both working for the Henderson County Community Hospital in Tennessee -- surrendered their prescription licenses to the DEA while working through their own chemical addictions. One doctor, Tom McDonald, surrendered his all the way back in 1999. The other doctor suing the DEA, John Woods, surrendered his to the DEA in 2012. Both were reinstated a few years later -- McDonald's in 2002 and Woods in 2014. Since that point, they've worked without incident at HCCH. (And prior to that, as well.)

Things changed in 2016 when the DEA showed up and ordered them to stop working until they'd obtained a waiver from the agency. This sudden enforcement effort was prompted by the addition of this clause to US code in 2014. In McDonald's case, there was 12 years of uninterrupted good behavior before the rule changed. It was Woods' more recent reinstatement that may have triggered this burst of regulatory activity. Whatever the case, it meant the two doctors were out of work until the DEA decided their years of service without abusing prescription pads meant something.

The doctors sued and, eventually, a settlement was agreed to. This is what the Sixth Circuit's short, pointed order [PDF] discusses. The DEA wanted the settlement sealed. In support of this argument, it offered non sequiturs. The judges don't like the DEA's quasi-arguments and say as much:

McDonald and Woods attached a copy of this agreement to their motion to dismiss the petition for review. The government in turn moved to keep the agreement under seal. We apply “a strong presumption in favor of openness as to court records.” Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (internal quotation marks omitted). The party seeking to seal a record document therefore must “analyze in detail” why the information in that document should stay secret.

The government does not even attempt to do that here. Rather than identify information too sensitive to remain public, the government argues that the agreement does not need to remain so—specifically because it binds only the parties and no rule required the parties to file it. That argument gets exactly backwards our operative presumption, which is that “[t]he public has a strong interest in obtaining the information contained in the court record.”

A case like this -- involving a settlement reached with the government after the DEA was hit with a restraining order against further enforcement -- is definitely in the public interest. The medical field requires a lot of education and ongoing training. Wiping out someone's livelihood because rules were changed years after the fact (at least in McDonald's case) to require DEA paperwork never needed prior to 2014 is the wrong way to handle regulatory matters.

The DEA had years of work history and two voluntary relinquishments as evidence these doctors could be trusted to mete out medical care and prescriptions. But it ignored all of that to do some "letter of the law" busywork. As the court points out, the public interest for those in the medical field is immense. Burying the settlement is burying information crucial to working doctors in similar situations.

That interest is particularly strong where the information pertains to an agency’s interpretation of a regulation. Other doctors would no doubt be interested to know that the DEA does not plan to treat them like it treated McDonald and Woods.

So, some desk jockey at the agency cross-ref'd a couple of databases post-rule change and agents headed out to make medical care worse by depriving hospitals and clinics of medical staff with clean track records (minus some missteps where the medical professionals were responsible enough to take themselves out of the prescription loop until their own addictions were under control). That's the Drug War being compounded by random enforcement, something that springs from a desire to look like you're making a difference but without having to make any real effort. Of course other doctors want to know how the DEA is going to handle stuff that wasn't a problem for decades, especially when they've made every effort to comply with massive amounts of regulation.

The DEA doesn't want people to know how to fight back against bureaucratic busybodying. That's the only reason it wanted the settlement buried. The problem was it couldn't come up with a plausible reason to do so when forced to argue it in court.

Filed Under: 6th circuit, dea, john woods, prescriptions, settlement, tennessee, tom mcdonald

Federal Court Says Taking People's Drivers Licenses Away For Failure To Pay Court Fees Is Unconstitutional

from the towards-a-slightly-less-vicious-cycle dept

Good news out of Tennessee, via Christian Farias: a federal court has struck down the state's modern debtor's prison system.

In Tennessee, if you fail to pay court fines and other fees associated with an arrest or imprisonment for more than a year, your driver's license is revoked. While it may not be as punitive as rounding up debtors and locking them up again (which obviously severely restricts their ability to pay off their debt), it basically serves the same purpose. Someone without a valid driver's license will find their ability to earn income restricted. Driving to and from work with a revoked license just raises the risk of being fined or arrested, placing residents even further away from settling their debts with the government.

The lawsuit was brought by two men who've been unable to make regular payments and have been placed even further behind by having their licenses taken away. Their struggles are briefly described in the court decision [PDF]:

In short, Thomas and Hixson both live in severe poverty and both owe court debt related to past criminal convictions. Thomas is totally and permanently disabled. Hixson has spent time in recent years living in a homeless shelter after a period of incarceration. Each man struggles to afford the basic necessities of life and is unable to pay the court debt assessed against him. Because they failed to pay their court debt for over a year, Thomas and Hixson have both had their driver’s licenses revoked by TDSHS [Tennessee Dept. of Safety and Homeland Security].

The state believes this is an effective deterrent and one of the only ways to guarantee repayment of fines. In fact, a spokesperson for TDSHS has already stated that the ruling is "disappointing" and the agency is reviewing its "legal options." This suggests TDSHS thinks license revocation works, rather than just disproportionately punishes the poorest residents of the state. The district court, however, disagrees with this assessment.

A scheme that revoked the driver’s licenses of non-indigent court debtors after one year of nonpayment would pass rational basis review, because the threat of revocation would plausibly serve as a method for coercing those people into paying their debts. (First Memorandum at 36–37.) Under the Griffin line of cases, however, the court must specifically consider whether the scheme’s lack of an indigence exception is itself rational. Revocation would not be an effective mechanism for coercing payment from a truly indigent debtor, because no person can be threatened or coerced into paying money that he does not have and cannot get. (Id. at 37.) The numbers bear that ineffectiveness out. From July 1, 2012, to June 1, 2016, TDSHS revoked 146,211 driver’s licenses for failure to pay fines, costs and/or litigation taxes; only 10,750 of those people—about 7%—had their licenses reinstated. (Docket No. 64 ¶¶ 107–08.) If Tennessee’s revocation law were capable of coercing people into paying their debts in order to get their licenses back, it would be doing so. The overwhelming majority of the time, it is not.

This is part of the court's analysis of the law and its legality. As precedent holds, a law that affirmatively punishes poor people for being poor is unconstitutional, as it violates both Due Process and Equal Protection principles. Tennessee's law fits the criteria.

Under a long and well-established line of Supreme Court precedents, a statute that penalizes or withholds relief from a defendant in a criminal case, based solely on his nonpayment of a particular sum of money and without providing for an exception if he is willing but unable to pay, is the constitutional equivalent of a statute that specifically imposes a harsher sanction on indigent defendants than on non-indigent defendants.

The court's lengthy examination of the law is worth reading -- especially by federal judges in other states with laws like these. But this is the upshot: the law makes bad situations worse, driving poor people further into poverty. In addition, the state's records show it is completely ineffective on its own terms -- either as a deterrent against non-payment or an efficient way to collect on debts owed.

Ultimately, the court need not determine if the driver’s license revocation law would fail rational basis review based on its sheer ineffectiveness alone, because, as applied to indigent drivers, the law is not merely ineffective; it is powerfully counterproductive. If a person has no resources to pay a debt, he cannot be threatened or cajoled into paying it; he may, however, become able to pay it in the future. But taking his driver’s license away sabotages that prospect.

[...]

In short, losing one’s driver’s license simultaneously makes the burdens of life more expensive and renders the prospect of amassing the resources needed to overcome those burdens more remote.

The court then goes on to note the cycle created by this revocation -- which can lead to additional arrests and/or fines -- just digs a deeper hole for the state. It creates additional debts that have almost zero chance of being repaid. It's nothing more than doubling down on what already isn't working.

Fortunately, there are some on the law enforcement side welcoming this ruling.

Shelby County District Attorney General Amy Weirich praised the decision.

“This ruling will give relief to those drivers whose licenses are revoked only because they lack the financial resources to pay their fines and court costs," Weirich said in a statement. "Our hope is that this will be a positive step toward rehabilitation since offenders getting their driving privileges restored will make employment more feasible. Also, it will reduce our daily caseload and allow us to focus even more on violent crimes and property crimes.”   

The attorneys for the pair of residents -- Claudia Wilner and Josh Spickler -- are hoping this ruling results in another favorable ruling in the near future. The pair is also suing on behalf of the 250,000 state residents who've had their licenses revoked for not paying traffic tickets. As it stands now, the state has sixty days to come up with a plan for reinstating all revoked licenses affected by this ruling and submit it to the court for approval. Reinstatement may be stayed during the inevitable appeal, but for now, the state cannot continue to revoke licenses when someone has shown an inability to pay.

It's a big decision, even if its jurisdictional reach is limited to the state of Tennessee. If this is upheld on appeal, it will cover the four states that make up the Sixth District. Although this has been slightly altered in recent years, Ohio still engages in this practice. In Michigan, a state appeals court judge blocked a similar law late last year. (That decision is currently being appealed.) Kentucky is the only state in the district without a law like this on the books, putting it a step ahead of its district competition.

Filed Under: court fees, driver's license, imprisonment, jail, penal system, poverty, tennessee

At-Home Dental Appliance Company Sues Website For Having Opinions About Its Products

from the feeling-ways-about-stuff,-huh?-I'm-calling-my-lawyer! dept

An at-home dental appliance company has a problem with the website Lifehacker. It's the sort of problem it thinks can only be solved by filing a baseless defamation suit. SmileDirectClub -- maker of DIY teeth-straightening equipment -- is taking the site to court for an article originally titled "You Could Fuck Up Your Mouth With SmileDirectClub." The title has since been changed to suggest any "at-home orthodontics" could fuck up your mouth, but the wording of the article remains unchanged.

The gist of the article is that straightening teeth requires direct oversight by qualified professionals -- something that seems unlikely to happen with at-home orthodontics. The author of post -- citing dental professionals and a few online forums -- notes that without proper, direct care, in-home dental appliances actually can cause worse alignment or result in the loss of teeth.

I’m halfway through an unusually long two-year program of Invisalign, the most popular brand of aligner. (The company behind Invisalign also makes SmileDirectClub’s aligners.) Every ten weeks I see my orthodontist for a checkup, new aligners, and advice. On a recent visit, I admitted that I’d started leaving my aligners out for longer periods (at parties or picnics), and was making up for it by leaving them in an extra day each.

My orthodontist gently explained that while my aligners are still pushing my teeth into place, my teeth want to shift back, and they’ll take every opportunity to do so. In effect, I’ve been very slowly wiggling my teeth. And wiggling teeth makes them fall out.

I no longer leave my aligners out for long periods.

So, given the average human's desire to take shortcuts or do whatever's most comfortable, rather than what's most necessary, at-home dental work, although cheaper, could cause serious problems down the road. Hence the need for professional care, rather than made-to-order appliances and online checkups based on photos of your mouth.

SmileDirectClub is pissed off. Never litigate angry. It only makes your arguments stupider. The complaint [PDF] opens with claims of things that never happened before devolving into general complaints about internet business models and website lineage. (h/t First Amendment warrior/lawyer Daniel Horwitz)

On April 6, 2018, Gizmodo through its weblog called Lifehacker, which is located at www.lifehacker.com, published an article written by Douglas entitled “You Could Fuck Up Your Mouth With SmileDirectClub” (the “Untruthful Article”).

Through this outrageous, misleading and vulgar title, Gizmodo intended to lure the 24 million readers of Lifehacker to an article filled with unsubstantiated false statements and innuendo that attacks Plaintiff’s products and services.

Although Douglas readily admits in the Untruthful Article that he never used or even tried Plaintiff’s products and services, he proceeds with a hatchet job based upon a comparison to a failed company that is not comparable for purposes of his statements; citation to a message board that does not support his statements; and conclusions that Plaintiff’s products and services are “bad” and “cheap.”

Actually, the article doesn't make either of those claims. It merely suggests using an at-home version will possibly result in tooth problems.

Obviously that’s because I’m lucky enough to afford the more expensive option. If you can’t, it can be very hard to hear that your only available option is a bad one. And maybe you’ll end up just fine with the cheap version—by all appearances, thousands of people have. But if you go remote, please be careful. Research as much as you can, and follow the instructions carefully. Don’t wiggle your teeth until they fall out.

Even with the original title, the article is not defamatory. The key word in the headline is "could." On top of that, the assertions made are supported by statements from dental professionals and users of these at-home products. The headline change shifts the focus from SmileDirectClub, but does not change anything about the assertions and opinions that compose the body of the post.

From that terrible start, the lawsuit goes off the rails. Apparently, SmileDirectClub believes "clickbait" and "part of the Gawker network" are pretty much all that's needed to successfully state defamation claims.

Even when confronted with the falsity of their article and admitting that one of the citations does not support the statements in the article, Defendants refuse to remove the Untruthful Article.

They refuse to do so because it is how they make their money.

Douglas and Gizmodo made such statements and used the outrageous “You Could Fuck Up Your Mouth With SmileDirectClub” title to bait consumers into viewing the article so that they could obtain revenues from banner advertising.

This continues a pattern over a decade of defamatory shock-style “journalism” by Gawker Media and its progeny (such as Lifehacker), whose weblogs were bought out of bankruptcy and now are held by Gizmodo.

Douglas, as a former reporter for Gawker, also has ties to the now defunct Gawker Media.

Defendants willfully, intentionally, and maliciously created a false story to drive “clicks.”

There's more later in the lawsuit, where -- for no apparent reason -- SmileDirectClub decides to regale the court with tales of Gawker's fall from grace at the hand of Peter Thiel-backed lawyers who had every intention of destroying the company, rather than simply seeking to have a grievance redressed.

SmileDirectClub also apparently believes -- incorrectly -- that statements of opinion must come with a disclaimer clearly designating them as opinions.

The Untruthful Article does not contain a disclaimer that it constitutes opinion only or that the statements therein do not reflect the views of Gizmodo or Lifehacker.

And it deliberately misreads the paragraph quoted above to portray it as an unsubstantiated statement of fact.

Finally, Douglas makes the unsubstantiated statement that, if one cannot afford a traditional orthodontist, SmileDirectClub is a “bad” option.

He further refers to SmileDirectClub’s products as “cheap” in connection with his allegation that the products are “bad.”

Douglas’s conclusion is not based on any factual evidence and is unsupportable.

It's his opinion about at-home products based on his personal experience and the not-unreasonable assumption that many people won't take the best care of their own teeth if the only person overseeing them is a Skyped-in dental professional viewing a tooth-filled selfie. And it's followed by statements the lawsuit chooses to omit, which says many people have had success straightening their teeth using in-home products like those offered by SmileDirect.

The other supposed damning evidence presented by SmileDirect is the site's attempt to fix the problems noted by the company.

On April 8, 2018, counsel for Plaintiff emailed a letter to Gizmodo, Lifehacker, Douglas, and Kirsch in which Plaintiff demanded that Gizmodo and Douglas immediately remove the Untruthful Article. A true and correct copy of the April 8, 2018, letter is attached hereto as Exhibit 6.

On April 9, 2018, counsel for Plaintiff caused the letter to be hand delivered upon Gizmodo. Gizmodo acknowledged receipt as shown in the email from Gizmodo’s General Counsel. A true and correct copy of the email is attached hereto as Exhibit 7.

On April 10, 2018, counsel for Plaintiff received an email from Gizmodo in response to Plaintiff’s April 8, 2018 email and April 9, 2018 letter. A true and correct copy of the response email is attached hereto as Exhibit 8.

Gizmodo asserts in its email that “Mr. Douglas meant to link to an additional discussion forum about aligners, and he will update the article to do so.”

Thus, Gizmodo admits that the Untruthful Article’s link to www.bracesforum.net is misleading but refuses to take the Untruthful Article down.

Gizmodo doesn't actually admit what SmileDirect says it admits. And even if the link was misleading, another link was provided and the post's title changed. None of this needed to be done. The article wasn't defamatory to begin with, even if the title was somewhat of a cheap shot in its original form.

Then it's time for more of this padding, which does little more than suggest SmileDirect's legal representation thinks courts run on emotion, rather than legal interpretations of existing laws.

Lifehacker, through its villainous lineage and Gawker Media parentage, continues the bad conduct of Gawker Media.

At best, Lifehacker’s Untruthful Article shows a reckless indifference for the truth, which is consistent with Gizmodo’s pattern of conduct going back to its origins with Gawker Media.

To sum up: "Gawker was once sued successfully for defamation. I rest my case." Perhaps the plaintiff believes the court has some v. Gawker judgment boilerplate laying around just in case any of its now-bastardized children have roused the rabble again.

Speaking of competent representation, it appears SmileDirect is hoping Gizmodo, et al will be held libel for slandering without proper disclaimers or whatever.

If you can't see or read the picture, the heading/subheading reads:

COUNT II

TRADE LIABLE/PRODUCT DISPARAGEMENT

Finally, the lawsuit ends with a plea for the article to be removed and anyone associated with the site from ever reposting it in any form. You know, a little prior restraint to go along with everything else that's wrong this lawsuit. SmileDirect wants this to happen before the judge even receives a response from Gizmodo or weighs the merits of the dental company's arguments.

It's a stupid lawsuit but it's still going to be a legitimate pain in the ass. Tennessee has a relatively worthless anti-SLAPP law and courts there have allowed incredibly dubious defamation lawsuits to proceed past motions to dismiss. This could be an easy win for Gizmodo or a protracted battle that gives the plaintiff's arguments far too much credit. Either way, it's something a good anti-SLAPP law would keep this from being a boon for legal representation and a drag on protected speech.

Filed Under: anti-slapp, defamation, lifehacker, opinion, slapp, teeth alignment, teeth straightening, tennessee
Companies: gawker, gizmodo, smiledirectclub

Tennessee Gives AT&T, Comcast Millions In New Taxpayer Subsidies, Yet Banned A City-Owned ISP From Expanding Broadband Without Taxpayer Aid

from the dysfunction-junction dept

If you want to understand what's wrong with the American broadband industry, you need look no further than Tennessee. The state is consistently ranked as one of the least connected, least competitive broadband markets in the country, thanks in large part to Comcast and AT&T's stranglehold over politicians like Marsha Blackburn. Lawmakers like Blackburn have let Comcast and AT&T lobbyists quite literally write protectionist state laws for the better part of a decade with an unwavering, singular focus: protecting incumbent revenues from competition and market evolution.

The negative impact of this pay-to-play legislature is non-negotiable. One state-run study last year ranked Tennessee 40th in terms of overall broadband investment and availability (pdf), and found that 13% of households (or 834,545 Tennesseans) lack access to any high-speed broadband internet service whatsoever. The study found that the vast majority of Tennessee residents still get internet access through slower services like DSL, wireless or dial-up connections, either because that's all that's available, or because they couldn't afford faster options.

Like twenty other states, Tennessee long ago passed a state law hamstringing towns and cities looking to improve regional broadband networks. As a result, popular municipal broadband providers like Chattanooga's utility-run ISP, EPB, have been banned from expanding its up to 10 Gbps offerings into any more markets. Attempts to repeal the law earlier this year went nowhere after mammoth pressure from incumbent ISP lobbyists. When that didn't work, one lawmaker tried to pass a compromise bill that would have allowed EPB to expand into just one neighboring county.

That proposal was shot down as well, one of the dissenting votes being that of Rep. Patsy Hazlewood, a former AT&T executive.

Tennessee residents have increasingly seen through Tennessee's unwavering fealty to some of the most despised brands in America. Some annoyed state residents have gone so far as to spend their own money to wire the state glacially, hilltop by hilltop. In a feeble attempt to try and placate those tired of expensive, slow broadband, Tennessee lawmakers recently passed HB 0529 or the "Broadband Accessibility Act of 2017." The centerpiece of the bill: throwing $45 million in additional subsidies at ISPs, the majority of which will be enjoyed by AT&T.

Motherboard correctly points out that the state banned EPB from expanding service to those same users without any cost to taxpayers, but was willing to throw additional subsidies at two giant companies with a mixed track record on putting government subsidies to work:

"To be clear: EPB wanted to build out its gigabit fiber network to many of these same communities using money it has on hand or private loans at no cost to taxpayers. It would then charge individual residents for internet service. Instead, Tennessee taxpayers will give $45 million in tax breaks and grants to giant companies just to get basic infrastructure built. They will then get the opportunity to pay these companies more money for worse internet than they would have gotten under EPB's proposal.

"Tennessee taxpayers may subsidize AT&T to build DSL service to Chattanooga's neighbors rather than letting [EPB] expand its fiber to neighbors at no cost to taxpayers," Christopher Mitchell, director of the Community Broadband Networks initiative at the Institute for Local Self-Reliance said. "Tennessee will literally be paying AT&T to provide a service 1000 times slower than what Chattanooga could provide without subsidies."

Given the repeated billions that have been thrown at incumbents that then consistently find ways to wiggle out of the obligations, resistence to the "throw subsidies at giant ISPs with a long, documented history of anti-competitive behavior and hope that does the trick this time" model is understandable. Especially in a state like Tennessee, where holding giant companies accountable for misdirection of telecom funds has never been a priority.

Fortunately, this new bill does make it legal now for electric cooperatives to provide broadband internet access to some areas -- a concession to outraged locals and a small sign of progress. That said, these co-ops will still find themselves hamstrung by Tennessee's other, existing, protectionist laws, which impose all manner of reporting and financing restrictions on anybody not named AT&T or Comcast. Popular companies like EPB -- ranked recently by Consumer Reports as one of the best rated ISPs in the country -- still can't offer service outside of its traditional electric utility footprint under Tennessee state law.

It's ironic, in that ISP lobbyists and loyal lawmakers usually try to justify their state bans on community broadband by pretending they were solely interested in protecting state residents from additional taxpayer spending. Yet this is all pretense to justify protecting large incumbent broadband duopolists from having to actually compete. One lawmaker that's actually trying to eliminate the state's restrictions on community broadband perhaps put it more succinctly:

"What we have right now is not the free market, it's regulations protecting giant corporations, which is the exact definition of crony capitalism."

And yet Tennessee's Marsha Blackburn has been consistently and generously rewarded for the kind of "crony capitalism" she's relentlessly advocated for on the state level. She recently was tagged to replace Greg Walden as the head of the House Energy and Commerce Committee's Subcommittee on Communications and Technology. Since that committee tackles most of the pressing internet-related issues, you can expect Tennessee's particular brand of AT&T and Comcast earlobe nibbling to manifest even more strongly on the federal level moving forward.

Filed Under: broadband, chattanooga, competition, marsha blackburn, municipal broadband, subsidies, tennessee
Companies: at&t, comcast, epb

Tennessee Study Shows State Remains A Broadband Backwater Thanks To AT&T Lobbyists, Clueless Politicians, And Protectionist State Law

from the get-the-hell-out-of-the-way dept

We've talked at great lengths about how AT&T's gruesomely cozy relationship with many state legislatures has severely damaged broadband expansion and adoption across huge swaths of the country. That's particularly true in Tennessee, one of nineteen states where AT&T lobbyists have literally written protectionist state laws defending AT&T's monopoly from broadband competition. AT&T's goal has been to stop the rise of public/private partnerships, which have only emerged as a direct response to AT&T's apathy.

AT&T lobbyists have been happily getting such laws passed for fifteen years with little attention by the media. That began to change with the rise of efforts like Google Fiber, which more clearly illustrated how public/private partnerships have become essential in bringing broadband competition to countless areas incumbent ISPs deem "not profitable enough" to care about. Last year, the FCC finally woke up from its own long slumber on the subject, stating it would be preempting measures in two such state laws (in North Carolina and Tennessee) that hindered municipal broadband efforts from expanding.

Tennessee's response? To sue the FCC -- claiming that state rights were being violated (letting AT&T write bad state law? Perfectly ok, though).

As that lawsuit is being hammered out in the courts, Tennessee state leaders have been forced to respond to an increasingly annoyed citizenry; one that's slowly woken up to AT&T's role in keeping Tennessee a broadband backwater. Part of this effort by Tennessee leaders has been to fund a new study taking a closer look at the state of broadband in Tennessee. And while some thought the study would be used to obfuscate state broadband problems, the full survey has been released and it doesn't pull any punches (pdf).

The study ranked Tennessee 40th in terms of overall broadband investment and availability, and found that 13% of households (or 834,545 Tennesseans) lack access to any high-speed broadband internet service whatsoever. The study found that the vast majority of Tennessee residents still get internet access through slower services like DSL, wireless or dial-up connections, either because that's all that's available, or because they couldn't afford faster options. The bright spot in the Tennessee report? The ultra-fast services being offered by the state-owned utility in Chattanooga (EPB):And while the study does yeoman's work avoiding specifically citing AT&T's campaign-cash stranglehold over state leaders like Marsha Blackburn as a massive reason why Tennessee broadband remains mired in mediocrity, it doesn't shy away from pointing out that the state's decision to try and blockade public/private partnerships -- when they're the primary driver of broadband improvement everywhere else in the country -- isn't very smart:

"In States where there are no restrictions, administrative burdens or regulatory limitations for any entity to build telecommunications infrastructure and offer services, there is more competition and more broadband investment, especially in rural parts of the state. Municipalities and electric cooperatives who have a vested interest in the vitality of their local communities are investing in broadband infrastructure because it is a key driver to economic development."

But this shouldn't really be new information for state leaders who prioritize AT&T campaign contributions over the welfare of countless Tennessee residents and smaller businesses. They've just chosen to ignore reports like this one, because they've convinced themselves that selling state laws to the highest bidder is ok -- because they're engaged in a noble fight against government intrusion into the private sector. AT&T, as you might expect, clung tightly to this narrative when asked about the study by the Chattanooga Times Free Press:

"...a spokesman for AT&T called the consultant's report "disappointing," because it appears to favor more government involvement in private business. "It largely ignores private sector investment and focuses heavily on proposals that grow government with little reference to the associated costs and risks to taxpayers," spokesman Joe Burgan said."

In reality, AT&T and other incumbent broadband providers simply adore bloated, dysfunctional government -- just as long as it's doing what AT&T wants. It's when government starts to heed the will of the people that you'll usually find AT&T crying like a petulant child. Tennessee politicians, too, showed they're not making much progress in opening their minds to the reality that improved broadband may mean some layer of local government involvement when the private sector fails state residents:

"Norris, who said he remains wary about municipal broadband based on the failure of Networx in his district near Memphis, said he hopes the push for more broadband is not an excuse for bigger government. Sen. Mark Green, R-Clarksville, vice chairman of the Senate Commerce Committee, also expressed concern about allowing government-owned utilities like EPB to compete with private firms such as AT&T or Comcast. "We want to look closely at this study, but in general, I am not for government and business competing in the marketplace," he said.

Again, though: AT&T and Comcast aren't competing, and Senators like Green are letting large ISPs literally write laws ensuring they never have to. And these local governments aren't getting into the broadband business because it's fun or because they're villains trying to ruin your ideological good time -- they're doing it because they've been saddled with awful broadband thanks to regulatory capture perpetuated by the same folks complaining about dysfunctional government.

Dysfunctional government fighting municipal broadband under the pretense of caring about stopping dysfunctional government is, for lack of a more scientific term, a massive disingenuous circle jerk. One that perpetuates distraction from the real issues of the day by intentionally inciting partisan discord.

All told the study found that Tennessee could easily deliver speeds of 25 Mbps to every business and consumer in the state for somewhere between $819.5 million and $1.7 billion. And while that's not a small number, you can be absolutely guaranteed that significantly more than that has been spent by AT&T (and unfortunately taxpayers) over the last fifteen years to ensure real, vibrant broadband competition never materializes.

Filed Under: broadband, competition, lobbyists, muni broadband, protectionism, tennessee
Companies: at&t

Another Bad Ruling In California Threatens To Massively Undermine Section 230 By Exempting Publicity Rights

from the this-is-bad dept

What a week. Just a few days after we wrote about a dangerous ruling in a federal appeals court in California concerning a way to get around Section 230 of the CDA, now we have another problematic CDA 230 ruling from California in the form of a ruling from San Mateo Superior Court judge, Donald Ayoob, that has the potential to do a lot of damage to Section 230 as well as anti-SLAPP efforts in California. Paul Levy has a very detailed post about the case, but we'll try and do a summary here.

The case involves Jason Cross, a "country rap" musician who performs under the name Mikel Knight, who has apparently made a name for himself through a highly aggressive "street team" operation that basically travels around in vans pushing people to buy Knight's CDs -- and there are plenty of accusations of sketchy behavior around how those street teams operate, and how Cross treats the people who work for him. Apparently, Cross was not happy with a Facebook group entitled "Families Against Mike Knight and the MDRST" (MDRST standing for Maverick Dirt Road Street Team, which is what Cross calls the street team). He then used a court in Tennessee to try to get Facebook to identify who was behind the group, and then demanded that the page be taken down. That effort is still ongoing, but has been temporarily postponed, while he then filed a separate lawsuit in California against Facebook and whoever is behind that group, a variety of things, including breach of contract, negligent misrepresentation, negligent interference with prospective economic relations, unfair business practices and various publicity rights violations. Oddly, as Levy points out in his post, despite listing John Does as defendants, the complaint doesn't describe anything anyone did other than Facebook. However, as part of the discovery process, Cross did (of course!) ask Facebook to identify the people behind the group criticizing him.

Facebook, quite reasonably, asked the court to dismiss the case under California's anti-SLAPP law and pointed to Section 230 for an explanation of why it's immune. The ruling, unfortunately, is very, very confused. It grants some of Facebook's request, saying that Facebook didn't breach any agreement in failing to remove the group, but refuses to dismiss the publicity rights claims, stating that publicity rights are "intellectual property" and intellectual property is not covered by Section 230. The first half of the ruling does note that Facebook is not liable for the regular content on those pages and thus it was under no obligation to take them down, but then goes off the rails on the publicity rights claim.

You might wonder where there's a publicity rights claim in any of this, but it appears that Cross is arguing that because the group (a) uses images of himself (as Mikel Knight) and (b) Facebook puts ads on those pages, that this is an abuse of his publicity rights for commercial advantage. Really.

Here, it is alleged that Facebook had knowledge since October 2014 that pages using Knight's likeness and identity were being created on its site.... Knight states that he did not consent to these pages or the advertising Facebook placed on them.... Facebook's financial performance is based on its user base; accordingly, Facebook' s alleged use of Knight's image on the unauthorized pages generates advertising revenue for the company.... Knight states that Facebook's unauthorized use of his image has resulted in substantial harm.... Accordingly, Plaintiffs have shown a probability of prevailing on their rights of publicity claims. Because the Sixth Cause of Action is a derivative claim that may arise from either or both the Fourth and Fifth Causes of Action, here to Plaintiffs have shown a probability of prevailing.

This seems wrong on a number of different accounts. First, and most importantly, how the hell is this a legitimate publicity rights claim? Publicity rights are supposed to be about stopping companies from using an image of a famous person in a manner that suggests endorsement when the person did no such thing. It's a very, very twisted (and incorrect) notion to argue that because Facebook has some ads on the same page as a group that complains about Cross/Knight that it's violating his publicity rights. As Levy notes in his post:

If this ruling is upheld, it will blow a gaping hole in the immunity provided by section 230. Plaintiffs who are unhappy about being criticized on any platform provided by an online service provider will be able to force the removal of those materials, and without even showing that there is anything false or otherwise tortious about the criticism – all they will have to argue is that they did not give permission for the use of their names or images in the criticism and that will be enough to make out a viable legal claim against the hosting company.

That's frightening. But, as Levy also notes, this seems to clearly be a misreading of the law:

...it simply cannot be the case that a violation of the right of publicity can be found whenever someone talks about a celebrity and thereby makes a profit. People Magazine and the National Enquirer, for example, and a variety of other publications make their money writing about individuals about whom the public has an insatiable appetite for information, but they do not require the celebrities’ permission to write about them. Indeed, to the extent that the right of publicity is analogous to trademark rights, it applies when a use of the celebrity’s name and likeness creates a likelihood that consumers will believe that the celebrity has endorsed the company that used the name and likeness (analogous to the “likelihood of confusion” requirement).

The judge here is just confused.

Second, there's the question of whether or not CDA 230 should or should not apply to publicity rights claims. It is true that CDA 230 explicitly carves out "intellectual property," but as Levy notes, there's some debate as to whether or not that applies just to federal IP laws or if it also covers state ones. Publicity rights are a purely state law concept. Of course, I think the argument could go even further, and it could be claimed that publicity rights shouldn't even be considered intellectual property in the first place. I already have issues with lumping copyright and patents together with trademarks as "intellectual property." But adding amorphous and ever changing publicity rights into the same bucket is problematic as well. There is no official definition of what counts as "intellectual property." This is, perhaps, more of a problem in that CDA 230 should have never created such a broad carveout (or should have at least specified "copyright" or whatever), but stretching the exemption to cover publicity rights is dangerous -- especially when courts like this one seem so confused about what's actually covered by publicity rights.

Levy also notes that there's a First Amendment issue behind all of this, in that it's pretty clear that Cross is seeking to suppress people saying things about him that he doesn't like. Levy -- who has been investigating this case to see if his organization, Public Citizen, should get involved (and his post details talking to a number of people who used to be a part of Cross's "street team") -- notes that he's intending to file an amicus brief in Facebook's inevitable appeal.

Either way, it's unfortunate that a judge would get such issues so incredibly wrong in a manner that could have a serious impact on free expression. Hopefully, the ruling is quickly reversed on appeal.

Filed Under: anti-slapp, breach of contract, california, cda 230, defamation, jason cross, mikel knight, publicity rights, tennessee
Companies: facebook, maverick dirt road street team

Tennessee Man Builds His Own Gigabit Network Thanks To State's Protectionist Broadband Law

from the protect-the-status-quo dept

We've noted how Tennessee is one of twenty states that has passed state laws, quite literally written by companies like AT&T, prohibiting towns and cities from wiring themselves with broadband -- even if nobody else will. When the FCC announced it would be taking aim at these protectionist broadband laws last year, Tennessee politicians threw a hissy fit, suing the FCC for "violating states rights." That incumbent ISPs are being allowed to write awful state law that's hampering a generation of business development in the state? Not apparently much of a concern.

As an unsurprising result, Tennessee remains one of the least connected broadband states in the nation, and state residents have increasingly been giving beholden state politicians an earful. Those who can, like Tennessee developer John "Thunder" Thornton, have started taking matters into their own hands and building their own gigabit networks. To do so, Thorton had to get the aid of a power cooperative in Alabama, a state that has a slightly less restrictive municipal broadband law in place:

"Unable to gain high-speed broadband at what he deemed an affordable price from AT&T or Charter Communications and limited from service extensions from EPB's ultra-fast Internet in Chattanooga, Thornton created his own Internet service provider last year. The private developer spent more than $400,000 to build his own fiber network and link it with a power cooperative in Stevenson, Ala., where fast broadband is available."

According to Thorton, the money he spent to wire his hilltop development cost a third of what AT&T was charging:

"Thornton said when he approached AT&T about providing Gig service to Jasper Highlands he was quoted a price of $1.3 million to serve his mountaintop development — more than three times what it ended up costing Thornton to build his own network connected to Alabama.

"Our costs are much less, but then I don't have to pay for 27 lobbyists in Nashville like AT&T does," Thornton quipped.

So yeah, Tennessee lawmakers have done such a bang up job letting AT&T write awful state telecommunications law, state residents are being forced to spend their own money to get broadband at a relatively sane price. Sadly, most of the people that can't get decent broadband can't afford to go Thorton's route. And while you'd think the cacophony of complaints from Tennessee residents would be enough to get some movement in the state legislature after a decade, all recent efforts to overturn the state's protectionist law have gone nowhere.

Tennessee's law prevents a popular Chattanooga-based utility-run ISP, EPB, from expanding its up to 10 Gbps offerings into any more markets. But attempts to repeal the law earlier this year went nowhere after mammoth pressure from incumbent ISP lobbyists. When that didn't work, one lawmaker tried to pass a compromise bill that would have allowed EPB to expand into just one neighboring county. That proposal was shot down as well, one of the dissenting votes being that of Rep. Patsy Hazlewood, a former AT&T executive.

That leaves the FCC as the best, current option in getting some of these miserable laws overturned.

As it stands, the FCC is arguing that Section 706 of the Telecommunications Act allows it to preempt state laws that conflict with the agency's Congressional mandate to guarantee "reasonable and timely" broadband deployment. While there's twenty such laws, the FCC is currently trying to overturn just two: in Tennessee and North Carolina; the hope being the legal precedent then rolls downhill. But both states have taken the FCC to court, bravely defending their right to take campaign contributions -- in exchange for protecting incumbent broadband providers from necessary and inevitable evolution.

Filed Under: broadband, fcc, gigabit, john thornton, tennessee

Tennessee Makes It Clear Protecting AT&T And Comcast From Broadband Competition Is Its Top Priority

from the protectionism-ahoy dept

We've noted a few times that Tennessee is one of numerous states that have literally let incumbent ISPs like AT&T and Comcast write state telecom law. Most notably, around 20 states have now blocked towns and cities from building their own broadband networks -- or striking public/private partnerships -- even in cases where the market has clearly failed. It's protectionism pure and simple, and when the FCC voted last year to try and gut these laws in Tennessee and North Carolina, ISP allies in Congress were quick to assail the FCC for "violating states rights" (to let incumbent ISPs dictate all telecom policy, apparently).

Tennessee's law prevents a popular Chattanooga-based utility-run ISP, EPB, from expanding its up to 10 Gbps offerings. Tennessee Rep. Kevin Brooks recently tried to pass a bill that would have dismantled the state's restriction, but his effort ran face-first into a lobbying wall constructed by companies like AT&T and Comcast. He then recently tried to strip down the measure so it simply let EPB expand near its headquarters and to one neighboring county, but that provision was also shot down 5-3, with one of the nay votes being that of Rep. Patsy Hazlewood, a former AT&T executive.

Needless to say, Brooks isn't particularly impressed with state lawmakers who continue to let AT&T and Comcast dictate state telecom policy while the state becomes one of the least connected in the nation thanks to cronyism:

"Residents and business people alike in northern Hamilton and portions of Bradley counties say they either have no service, lousy service or wireless service that makes it very expensive to upload and download documents for work and school. Asked who was lobbying against the bill, Brooks said, "the list of who was not would be shorter. I heard they hired 27 lawyers to fight."

...Brooks, R-Cleveland, and other proponents later blasted powerful investor-owned telecommunication providers such as AT&T and Comcast for the loss. And conceding defeat this year, they vowed to return in 2017. "It's a testament to the power of lobbying against this bill and not listening to our electorate...the voice of the people today was not heard. And that's unfortunate."

Incumbent ISPs like AT&T and Comcast, meanwhile, continue to insist that nothing is wrong with the scattered, expensive broadband service they're currently providing the state. And, as we've seen in other states like Missouri, they continue to frame the issue as a partisan one to intentionally sow partisan division, distracting locals from what's actually happening. But again, there's bi-partisan support for leaving the right to improve local infrastructure in the hands of local voters, and not incumbent providers with a vested interest in keeping prices high and mediocrity the norm. And towns and cities wouldn't be exploring getting into the broadband business if they were genuinely satisfied with the current offerings.

For a while broadband efforts from the likes of Google Fiber and Tucows had been shining a spotlight on the need for public/private partnerships to fill in the broadband coverage gaps incumbents refuse to address. But recent votes in Missouri and Tennessee show that old telecom habits (like letting ISPs write awful protectionist law in exchange for campaign contributions) die hard.

Filed Under: broadband, competition, muni broadband, municipal broadband, tennessee

Tennessee Voraciously Defends Its Right To Let AT&T Write Awful State Broadband Laws

from the ill-communication dept

After fifteen years in an apparent coma, earlier this year the FCC woke up to the fact that ISPs were effectively paying states to pass laws focused entirely on protecting uncompetitive, regional broadband duopolies. More specifically, they've been pushing legislation that prohibits towns and cities from improving their own broadband infrastructure -- or in some cases partnering with utilities or private companies -- even in areas local incumbents refused to upgrade. It's pure protectionism, and roughly twenty states have passed such ISP-written laws nationwide.

While it received less press attention because it happened on the same day as the net neutrality vote, back in February the FCC voted to start pre-empting some of these state laws because they run contrary to the FCC's Congressionally-mandated mission of improving broadband access to all (not to mention, common sense). This, not too surprisingly, riled up all of the telecom companies' paid loyal supporters in Congress, who, like Marsha Blackburn, immediately started whining and pretending this was a states' rights issue (you'll note that letting your local incumbent cable and phone company literally write state law is perfectly fine, however).

In March, the state of Tennessee sued the FCC, again framing the state's decision to cozy up to telecom giants as a states' rights issue, and claiming the FCC violated federal law and overstepped its authority. Tennessee state law, pushed for by AT&T, has stopped Chattanooga-based EPB from expanding broadband services into additional areas. The FCC's attempt to thwart this god-given protectionist effort, Tennessee claimed this week in a new court filing, violates Tennesee's "inviolable right to self-governance":

"In a brief filed Friday in a federal appeals court, Tennessee argued that states have an "inviolable right to self-governance," which means that a state may delegate powers to its political subdivisions—i.e. cities and towns—as it sees fit..."Far from being a simple matter of preemption, as the FCC claims, this intervention between the State and its subordinate entities is a manifest infringement on State sovereignty," Tennessee's lawyers wrote Friday.

In other words, Tennessee argues, it's completely within its right to let AT&T write shitty telecom law that ensures Tennessee remains a broadband backwater, and the federal government has no standing to intervene in this noble effort. In contrast, the FCC has argued that Section 706 of the Telecommunications Act of 1996 directs the FCC to take action to remove barriers to broadband investment, which is precisely what AT&T Tennessee's law is. Tennessee's motivation here is to ensure they can keep gobbling up AT&T and Comcast campaign contributions without federal interference. The FCC's motivation here (contrary to years' past), is to actually bring better, cheaper broadband to more people.

The courts could rule either way, but the FCC will get its chance to respond to Tennessee in a filing expected by November 5. Meanwhile, Tennessee residents can rest easy knowing their taxpayer dollars are not only being used to prop up AT&T's crappy, stagnant broadband empire -- but to thwart efforts to actually bring broadband competition and lower prices to the state.

Filed Under: fcc, municipal broadband, state laws, tennessee
Companies: at&t