My Insanely Long Field Guide To Common Carriage, Public Utility, Public Forum — And Why The Differences Matter.

Once upon a time, social conservatives used to be major allies on both limiting media consolidation and on net neutrality. Why? Because they recognized that if you had a handful of corporate gatekeepers controlling access to the marketplace of ideas, they could easily get shut out. Market forces being market forces, companies pressured to censor unpopular or controversial speech and views will do so. Add to that the belief on the part of conservatives that they face ideological bias from the “mainstream media” or “Silicon Valley,” and you had many conservatives back in the day who stood shoulder to shoulder with us back when I was at Media Access Project to oppose Powell’s efforts to relax media ownership rules in 2003 and who opposed Congress’ first attempt to gut net neutrality — the COPE Act — in 2006.

 

Then came the 2008 election and the Tea Party blowback of 2009-10. Net neutrality became a red team/blue team issue and even social conservatives who had previously supported net neutrality went silent on the issue.

 

Ironically, now that Republicans dominate all branches of government, conservatives are once again discovering the value of common carriage and government prohibition on any sort of interference with conduits of speech — at least with regard to social media platforms like Facebook, Youtube and Twitter. Why? As conservatives have once again discovered, if companies retain the right to exert editorial control based on content, they will get pressured by the market and government to use that editorial discretion to censor “harmful” speech. That, and the perception that Silicon Valley has a distinct liberal bias, have prompted some in the conservative movement to rediscover the idea that common carrier regulations actually protect and promote free speech and are not a regulation of speech. Because without access to the public square — whether the real life public square or its digital equivalent — your freedom of speech is simply a freedom to whisper to yourself.

 

I am happy to agree that the time has come to consider whether social media platforms — and other essential elements of communications such as operating systems, DNS registration, or content hosting — should have non-discrimination obligations consistent with our traditional concepts of common carriage. I believe this would also have the salutary effect of protecting companies from liability or social pressure by taking away their discretion. After all, we don’t see anyone demanding that the major mobile providers stop providing cell phones to white supremacists or that broadband providers block subscribers from accessing websites like Daily Stormer. The public accepts that these companies have no choice, because they are common carriers and must serve everyone equally as a matter of law. By contrast, we have seen successful campaigns to pressure DNS registrars to refuse to host the Daily Stormer domain name, Cloudflare, which itself decided to stop servicing Daily Stormer after Daily Stormer claimed that Cloudflare’s decision not to suspend service constituted an endorsement, posted this excellent blog post on why their actions should make people very uncomfortable.

 

So this should be a great time to reforge the Left/Right alliance on media diversity and government regulation to prevent private censorship, right? I hope so. Unfortunately, this very important conversation keeps getting muddled for two reasons.

 

1) People keep confusing the concept of “common carriage” with the concept of “public utility.” The differences actually matter a lot, despite 15 years of anti-net neutrality advocates muddling the two.

2) The most active proponents of using government regulation to prevent private censorship on the conservative side are pretty much treating common carrier regulation as a form of revenge porn rather than as a serious public policy debate. “Oh, you don’t want me? You want to break up with me? Well I’ll show you! I’ll make it so you have to carry me!” Indeed, since 2006, when Google (to my considerable annoyance) became the poster child for net neutrality for opponents and a trade press obsessed with treating every policy debate as an industry food fight, the debate about common carrier obligations or non-discrimination obligations or even privacy has always triggered a “but what about edge providers? Waaaaahhhhh!! Regulate them! Regulate them!”

 

Now I should make it very clear that I can find plenty of progressives who have conceived passionate hatreds for “Silicon Valley” platforms for various reasons, and who also get confused on the concept of “public utility.” Additionally, I can find at least some conservative free market types who understand why we need to regulate things like Internet access differently than hosting services or social media. But it’s conservatives lusting to regulate “Silicon Valley” that have been getting the headlines, and are driving the discussion among Republicans in Congress. Plus I’m getting tired of being asked the same stupid questions by the same folks on Twitter. So I’ll call out the conservatives howling for Silicon Valley blood by name.

 

Anyway, because whether and how to regulate various parts of the Internet supply chain (or, if you prefer, ecosystem), I will try to explain below why common carriage obligations, such as network neutrality, are different from public utility regulation (even though most utility providers are common carriers), which is different from natural monopoly regulated rate of return/tariffing/price regulation. I will briefly explore some of the arguments in favor of applying some sort of public forum doctrine or common carrier obligation to social media platforms, and — because this invariably comes up in telecom space — why platform or other infrastructure providers are not and should not be covered by Title II or the FCC, even if we agree they should have some sort of public forum or even public utility obligations.

 

More below . . .

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My Response to Charlottesville.

I’m sorry this is off topic for this blog. It doesn’t have anything to do with telecom. But extraordinary events require a response, and now is when all of us who believe in the Rule of Law need to raise our voices.

 

The issue is not right v. left. The issue is those who believe in preserving the fundamental rights of protest and respecting the rule of law v. those who believe they are a law unto themselves.

 

Our country allows supporters of even the most evil, hateful ideologies to preach their beliefs on the principle that it is the right — nay, the duty — of those who oppose these beliefs to counter-protest. Let hundreds of hate-mongers, racists and antisemites gather to be confronted by tens of thousands of people appalled at their open embrace of evil. Let those who hate their fellow American shout their obscenities at the overwhelming masses of Americans counter-protesting. Let the world see that while a few thousands may be drawn to the “largest rally” of racists, fascists and Nazis wannabes, tens of thousands will rise in anger and condemnation.

 

It is those who turn to violence and view themselves as a law unto themselves that are “the other side.” To be clear, I do not speak of those who merely defend themselves. If an armed mob assaults protesters, then those assaulted have the right to defend themselves. No, the “other side” are those who think that they have been provoked so that the rule of law no longer applies. Those who think they are a law unto themselves, empowered to deal death and violence for their ‘sacred cause.’ These who consider themselves their own law, and those who encourage them, are the “other side.” They are the enemy that needs to be condemned.

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Will Pai “Pull A Putin” And Hack the FCC Process? Or Will He Get Over Himself and Start Acting Like The Chairman?

In my 20+ years of doing telecom policy, I have never seen a Chairman so badly botch a proceeding as Chairman Ajit Pai has managed to do with his efforts to repeal Net Neutrality. For all the fun that I am sure Pai is having (and believe me, I understand the fun of getting all snarky on policy), Pai’s failure to protect the integrity of the process runs the serious risk of undermining public confidence in the Federal Communications Commission’s basic processes, and by extension contributing to the general “hacking of our democracy” by undermining faith in our most basic institutions of self-governance.

 

Yeah, I know, that sounds over the top. I wish I didn’t have to write that. I also wish we didn’t have a President who calls press critical of him “the enemy of the American people,” triggering massive harassment of reporters by his followers. What both Trump and Pai seem to fail to understand is that when you are in charge, what you say and do matters much more than what you said and did before you were in charge. You either grow up and step into the challenge or you end up doing serious harm not only to your own agenda, but to the institution as a whole. Worse, in a time when the President and his team actually welcomed Russia’s “hacking” of our election, and remain under suspicion for coordinating with Russia for support, Pai’s conduct creates concern and distrust that he will also “pull a Putin” by welcoming (or worse, collaborating with) efforts to de-legitimize the FCC’s public comment system and hack the public debate around net neutrality generally.

 

Fortunately, as I told former Democratic FCC Commissioner Julius Genachowski when he was in danger of making the FCC’s process a laughingstock in the public eye, Pai can still recover and rescue himself and the FCC from his self-destructive conduct. Instead of calling his critics enemies of capitalism and free speech, instead of obsessing about his own hurt feelings while displaying a troubling indifference to identity stealing bots filing comments that support his own proposal and failing to follow up on his own claims that the FCC comment system suffered a critical cyber-attack – Pai needs to follow in the footsteps of Michael Powell, Kevin Martin and Tom Wheeler when they faced similar insults (and in Powell’s case, racial slurs). Welcome robust public debate and criticism, condemn the actually illegal hacking used by his supporters, and stop whining about his own hurt feelings. Michael Powell managed to take being called a War Criminal and son of a war criminal for supposedly allowing the press to sell us on the Iraq War, as well as the same kind of racist bullshit that Pai or any other prominent person of color sadly has to endure in an America where racists feel increasingly emboldened. Pai can chose to step up in the same way his Republican and Democratic predecessors did, or continue to contribute to the overall erosion of trust in our institutions of self-governance generally and his handling of the FCC specifically.

 

I unpack all this below . . .

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My Letter To Trump On Why I Need to Hear Him Say: “Anti-Semitism Is Bad.”

Dear Mr. President.

 

Why is it so hard for Donald Trump to say “Anti-Semitism is bad, and the US government will protect all people from hate crimes no matter what their race or religion”? This is really getting deeply troubling.

 

Yes, I get it. Jared, Ivanka, the grandkids. You love Israel. You get on great with Bibi. You have lots of Jewish friends. I’m sure Trump Tower makes the best falafel and humous on Israel Independence Day, and the best chopped liver on Rosh Hashanah.

 

But for some reason, in several consecutive press conferences, the rather simple and straightforward statement that “Anti-Semitism is bad. The government of the United States will not tolerate threatening Jews with violence, vandalizing synagogues or Jewish institutions, or otherwise treating Jews differently than anyone else,” or words to that effect, have not come out of your mouth. And that is a real problem for me.

 

I’m an Orthodox Jew. I’m generally supportive of the State of Israel. And, if Trump Tower had a hechsher, I’m sure I’d love your felafel or chopped liver. I’m also an American, and very proud of that. I have always been proud of being an American citizen. I have thrilled with pride when I testify before Congress on super boring telecommunication policy that here I am, wearing my kippah, being all open Jew person, and not here just to testify on Israel of some other Jewish topic. I walk through the “Halls of Power” not as a supplicant petitioning for favors — as my ancestors in Europe and the Middle East were forced to do — but as a proud citizen exercising my First Amendment right to “petition the government for redress of grievances.”

 

I have spent the bulk of my professional life in public policy, because I passionately believe in the promise and ideals of the United States of America.

 

And yes, you are my President. True, I voted against you. I oppose just about every policy decision you have made so far. But you are still the man who was elected President of the United States under the rules of the Constitution. That makes Donald Trump the President of the United States, and therefore my President.

 

So please understand. I really, really need to hear my President say: “The President of the United States denounces anti-Semitism. You, Harold Feld, have the same rights as every other American.” Not “hey, I’ve got Jewish grandkids” or “I’m the least Anti-Semitic person ever.”

 

I know I’m not the only one who probably needs to hear that explicitly. I know in these times that other people are under attack for their religion, for their race, for their gender or sexual orientation. I’m pretty sure they want to hear it explicitly from their President (whether they like him or not, whether they believe him or not). But I can only speak personally for me. I can tell you, as an American and Orthodox Jew, that I need to hear from my President that I am still an American who just happens to be Jewish — not a Jew who happens to live in America.

 

If you aren’t sure exactly what to say, here are the words that our first President, George Washington, used to reassure the Jews of Newport Rhode Island. At the time, there was not a single country in the world where Jews enjoyed equal rights as citizens. The best Jews could hope for was “toleration,” which could be withdrawn at any time. President Washington therefore reassured the Jews of America:

 

“It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.”

 

It would mean an awful lot to hear you quote those words, or say something similar.

 

Sincerely,
An American Citizen who happens to also be an Orthodox Jew

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The George Washington Pledge: “To Bigotry No Sanction, To Persecution No Assistance.”

I’m starting what I call the George Washington Pledge.

 

THE GEORGE WASHINGTON PLEDGE

“I pledge to give to bigotry no sanction, to persecution no assistance. I pledge to work toward a world where everyone may sit under their own vine and fig tree, and there shall be none to make them afraid. A world that scatters light and not darkness in our paths, and makes us all in our several vocations useful here, and in due time and way everlastingly happy.”

 

Where did that come from, what does it have to do with George Washington and don’t I know that George Washington was a bigot who kept slaves? To answer the second question first, yes. I know that it is one of the great and cruel tragedies of history that George Washington himself, while expressing these concepts, was committing the ultimate bigotry and persecution by holding slaves and asserting that those of African descent were not fully human. Nevertheless, while this pledge made by the First President of the United States has never been fulfilled, it time we committed to making it true.

 

We live now in a time when it is the duty of those of us committed to the success of the American Experiment in self-rule to remember the promises and values which the founders of our country made the foundation of governance. Whatever their past success, whatever the sincerity of those who wrote the words, it falls on us to do our part to make these foundational values real. To quote the words of our first President: “If we have wisdom to make the best use of the advantages with which we are now favored, we cannot fail, under the just administration of a good Government, to become a great and a happy people.”

 

So where do the words of the George Washington Pledge come from? And what do I mean when I commit myself to it? See below . . . Read More »

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Are Police Jamming Cell Phones At Standing Rock Protest? The FCC Should Investigate.

Given the lack of coverage in mainstream media, you might not have heard about the ongoing protest against the construction of the Dakota Access Pipeline immediately upstream from the Standing Rock Sioux reservation aka #NoDAPL. You can find some good statistics on the pipeline and number of arrests associated with the protest here. Setting aside my personal feelings about democracy, freedom to peacefully protest, and how the Sioux concerns seem rather justified in light of the Alabama pipeline explosion, this has now raised an interesting communications issue that only an FCC investigation can solve. Are police jamming, or illegally spying, on communications at the protest and associated Sacred Stone Camp?

 

Over the last week, I have seen a number of communications from the protest about jamming, particularly in the period immediately before and during the Thursday effort by police to force protesters off the land owned by Dakota Access Pipeline. In addition, this article in Wired documents why tribal leaders connected with the tribal telecom provider, Standing Rock Telecom, think they are being jammed. I’ve had folks ask to speak to me using encrypted channels for fear that law enforcement will use illegal monitoring of wireless communications. As this article notes, there are a number of telltale signs that law enforcement in the area have deployed IMSI catchers, aka Stingrays, to monitor communications by protesters. However, as I explain below, proving such allegations — particularly about jamming — is extremely difficult to do unless you are the FCC.

 

Which is why the FCC needs to send an enforcement team to Standing Rock to check things out. Given the enormous public interest at stake in protecting the free flow of communications from peaceful protests, and the enormous public interest in continuing live coverage of the protests, the FCC should move quickly to resolve these concerns. If law enforcement in the area are illegally jamming communications, or illegally intercepting and tracking cell phone use, the FCC needs to expose this quickly and stop it. If law enforcement are innocent of such conduct, only an FCC investigation on the scene can effectively clear them. In either case, the public deserves to know — and to have confidence in the Rule of Law with regard to electronic communications.

 

More below . . . .

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Can Obama Stop The Stalling On Clinton Appointees. Or: “It’s Raining Progressives, Hallelujah!”

As we end 2016, we have an unusually large number of vacancies in both the executive branch and the judiciary.  As anyone not living under a rock knows, that’s no accident. Getting Obama appointments approved by the Senate was always a hard slog, and became virtually impossible after the Republicans took over the Senate in 2015.  This doesn’t merely impact the waning days of the Obama Administration. If Clinton wins the White House, it means that the Administration will start with a large number of important holes. Even if the Democrats also retake the Senate, it will take months to bring the Executive branch up to functioning, never mind the judiciary. If Clinton wins and Republicans keep the Senate, we are looking at continuing gridlock and dysfunction until at least 2018 and possibly beyond.

 

In my own little neck of the policy woods, this plays out over the confirmation of Federal Communications Commissioner Jessica Rosenworcel (D). Rosenworcel’s term expired in 2015. Under 47 U.S.C. 154(c), Rosenworcel can serve until the end of this session of Congress. That ends no later than Noon, January 3, 2017, according to the 20th Amendment (whether it ends before that, when Congress adjourns its legislative session but remains in pro forma session is something we’ll debate later). Assuming Rosenworcel does not get a reconfirmation vote (although I remind everyone that Commissioner Jonathan Adelstein was in a similar situation in 2004 and he got confirmed in a lame duck session), that would drop the Commission down to 2-2 until such time as the President (whoever he or she will be) manages to get a replacement nominated and confirmed by the Senate. Given the current Commission, this would make it extremely difficult to get anything done — potentially for months following the election. It would also force Chairman Tom Wheeler to remain on the Commission (whether he wants to or not) for some time.

 

From the Republican perspective, however, this has advantages. If Clinton wins, it means that the FCC is stuck in neutral for weeks, possibly months. Since Republicans generally do not like Wheeler’s policies, that’s just fine. By contrast, if Trump wins, Republicans will have an immediate majority if Wheeler follows the usual custom and steps down at Noon January 20. So even though Republicans promised to confirm Rosenworcel back in 2014 when the Ds allowed Commissioner Mike O’Reilly (R) to get his reconfirmation vote, they have plenty of reasons to break their promise and hold Rosenworcel up anyway. Not that Senate Republicans have anything against Rosenworcel, mind you. It’s just (dysfunctional) business.

 

Again, it’s important to remind everyone who obsesses about communications that this is not unique to Rosenworcel. From Merrick Garland (remember him?) on down, we have tons of vacancies just sitting there without even the virtue of a bad excuse beyond “well, we’d rather the government not function if someone on the other side is running it.” While I keep hoping this will change, I don’t expect either political party to have a change of heart around this following the next election.

 

Fortunately, I have a plan so cunning you can stick a tail on it and call it a weasel.  On the plus side, if I can get the President to go along with it, it will not only keep things working between January 3, Noon, and January 20, Noon. It will also give the Republicans incredible incentive to move Clinton’s nominations as quickly as possible. On the downside, it’s not entirely clear this is Constitutional. I think it is, based on the scanty available case law (mostly Nat’l Labor Relations Bd v. Canning). But, as with test cases generally, I can’t guarantee it. Still, like the idea of preventing a U.S. default on its debt with a trillion dollar platinum coin, it can’t hurt to think about it.

 

For the details of what I call “Operation Midnight At Noon” (throwback to the Midnight Judges), see below . . .

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Update on Muni Broadband Decision. The Fate of Pinetop, N.C.

Last week, I wrote about the 6th Circuit’s decision in the muni broadband caseTN v. FCC. I mentioned in passing that the opinion pretty much keeps the status quo. Then I found from a reader about Pinetop, N.C.

 

As reported here and here, Greenlight, the muni provider of Wilson, N.C., took advantage of the FCC’s 2015 Order and began offering gigabit broadband in Pinetop, population 1400. Pinetop lies in Edgecomb County, next door to Wilson County. Under the 2010 N.C. anti-muni law, Greenlight could serve anyone in Wilson County but not go outside Wilson County to neighboring Edgecomb  County. But Wilson decided to take a shot and honor Pintetop’s request to provide service (Greenlight already provides electric service in Pinetop as a muni electric provider, so it wasn’t much of a leap).

 

The legal situation on this is now somewhat complicated. The 6th Cir. had not stayed the FCC’s preemption order in 2015, so it was totally legal for Greenlight to offer service. What is unclear now is how to read NC law now that it is “un-preempted” by the Sixth Circuit overturning the FCC. I admit I have no idea how to even begin to answer this question.

 

But it’s not an abstract legal question. The availability of broadband in Pinetop matters a great deal to the people of Pinetop.

 

Stay tuned . . . .

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FCC Loses It’s Muni Broadband Test Case. What Comes Next?

Sometimes the law is clear. Sometimes it isn’t.

 

While that seems obvious, we often miss it in policy debates. But it is rather important to keep in mind when reading Tennessee v. FCCIn a case released August 10, the Sixth Circuit reversed the Federal Communications Commission (FCC) 2015 Order preempting restrictions the state of Tennessee and the state of North Carolina imposed on their municipalities with regard to providing broadband service. While Commissioners Pai and O’Reilly are certainly entitled to their victory laps, it is equally important to applaud Chairman Wheeler and Commissioners Rosenworcel and Clyburn for doing what they believed was both the right policy and the right call under the law. The petitions from the City of Wilson, NC and from the Electric Power Board of Chattanooga, TN raised novel questions of law. The FCC’s Order was a test case. On a very narrow and murky legal question, the FCC majority bet wrong — at least according to the 6th Circuit.

 

For myself, not surprisingly, I thought the FCC majority had the better argument. But I can’t say the Sixth Circuit was utterly wrong in holding the contrary. The limits of the Tenth Amendment and preemption power are generally unclear. The interpretation of Section 706 (47 U.S.C. 1302) as providing authority to the FCC remains relatively undefined. Based on the language in the dissent in Verizon v. FCC, which inspired munibroadband proponents to bring the petition and support the case, it looked like a good shot. Similarly, the facts of the case — already existing munibroadband providers, clear demand for them to expand their services, a willingness to expand service but for the relevant state laws restricting service — made this a favorable fact pattern.

 

Unfortunately, sometimes the best bet in the world doesn’t pay off. But that is why people bring test cases — to try to resolve questions in the law that move policy in the direction those bringing the case favor. It is neither an overreach nor illegal for Petitioners to bring test cases, to have an agency resolve them, and for the agency and those who brought the petition to the agency to defend them in court. To the contrary, this is how the rule of law works under the principles of the common law.

 

I stress this point because whether you bring conservative test cases to challenge laws and test limits or progressive cases to challenge laws and test limits — or cases that don’t easily fit in the conservative/progressive paradigm — we want agencies to actually address these cases in a timely fashion. As I remarked many years ago, when the FCC’s efforts to encourage competition in the 700 MHz auction resulted in a mixed result, we need  agencies to be willing to actually address novel circumstances and try new things because otherwise the law will ossify and we lose one of the most important elements of administrative law, the ability of an agency to respond to changing circumstances and provide a suitable record for Congressional action where necessary.

 

Bellow, I give a brief recap of the case and a forecast on what comes next for the muni broadband movement . . .

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The FCC Sets the Ground Rules For Shutting Down The Phone System — And Sets the Stage For Universal Broadband.

Here’s the funny thing about the world. The two Orders the FCC will vote on tomorrow (Thursday, July 14) probably have more impact on the future of our communications infrastructure than the Title II reclassification of broadband. But like most momentous things in technology, no one notices because they are technical and everyone’s eyes glaze over.

 

In particular, no one notices the sleep inducing and incredibly vaguely named item “Technology Transitions,” we are talking about the conclusion of a 4 year proceeding on how to shut down the legacy phone system and move all our national communications platforms to a mix of digital platforms. That does not mean we’re getting rid of copper and going to all fiber (a common misconception). In fact, in many communities, the old copper lines might get pulled out and replaced with wireless technologies (what we call wire-to-wireless transition). Those who still remember when Verizon tried this after Super Storm Sandy on Fire Island will understand why so many of us wanted to make sure we have an organized transition with quality control and federal oversight.

 

But most people don’t remember this anymore. And, if you are not one of the 60 million or so people (mostly rural, poor or elderly) who still depends on the traditional copper line telephone, you may wonder what this has to do with your life. The short answer is: the old phone system still provides the backbone of our communications system of shiny digital thingies we take for granted. The old copper line phone system is also the workhorse of most ATMs, retail cash registers, and thousands of other things we take for granted every day. Why? Because the old copper line network has been around forever. It’s an open system everyone can – by law – plug into and no one ever imagined would go away.

 

But even more important for the future of our communications infrastructure – the Federal Communications Commission made this a values driven transition. In a bipartisan unanimous 5-0 vote back in January 2014, the FCC rejected the idea of making the Tech Transition a “get out of regulation free zone” and adopted four basic principles to guide the transition: Universal Access, Competition, Consumer Protection and Public Safety.

 

As a result, for once, for once, we actually have a chance to prevent the inequality before it happens. It took 100 years, but if there is one thing Americans took for granted, it was that we all had the same phone system and could all communicate with each other on equal terms. The rules the FCC adopts will make it possible to preserve this principle of universal access. Because this network forms the backbone of the broadband network, if we work together and don’t blow it, we can achieve the same success with broadband that we achieved with basic telephone service.

 

I dig into this below . . .

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