“A Woman of Valor Who Can Find?” Farewell to Commissioner Mignon Clyburn.

This week has been the going away for Chairwoman Mignon Clyburn, often called “the Conscience of the Commission.” Not some soppy, Jiminy Cricket-style conscience sitting helplessly on your shoulder pleading and wheedling to try to get you to be good. Clyburn has been a conscience that kicks ass and takes names. The fact that, despite these hyper-partisan times, so many of her Republican colleagues and former colleagues were positively clamoring at her official FCC send off to praise her with genuine warmth for her empathy, graciousness and passion proves (as I once said about Jim Cicconi, who came out of retirement to add his own praise at Clyburn’s official farewell), you can be extremely effective without being a total jerk.

 

Many people understand the duty of public service. But for Mignon Clyburn, it is a calling.

 

As you can tell, I’m a big fan. If you wonder why, read her going away speech from the appreciation/going away party the public interest community held for her last Wednesday — although simply reading the words cannot convey the stirring passion and eloquence with which she read it. Too many people who care deeply about social justice dismiss communications law as a wonky specialty. Those with the passion to follow the instruction of the prophet Isaiah to “learn to do good, seek justice, comfort the oppressed, demand justice for the orphan and fight for the widow” often chose to go into fields where this struggle is more obvious such as civil rights or immigration law. But as Clyburn made clear through both words and actions, we desperately need this same passion in communications law. “The communications sector does not just intersect with every other critical sector of our economy, society, and democracy; it is inextricably intertwined. Healthcare, education, energy, agriculture, commerce, governance, civic engagement, labor, housing, transportation, public safety—all rely on this modern communications infrastructure. Any weaknesses or shortcomings, systemic or isolated, will have ripple effects that can be difficult to discern, but are unmistakable in their impact.”

 

Some reflections on Clyburn’s tenure below . . .

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UPDATE: Net Neutrality Repeal Goes Into Effect June 11 (Absent CRA Passage Or Anything Else).

We now have an official date on when the 2017 Net Neutrality repeal will go into effect. The Government Printing Office now gives a preview of what will get published in Fed Reg 24 hours in advance. They announced today that tomorrow will have both the OMB approval of the new and undermined transparency rule and the FCC notice that things will officially go into effect in 30 days from tomorrow.

 

Apparently stung by being called out on this peculiar process, Pai has issued a new and exciting statement totally doubling down on everything he has ever said about the terribleness of the previous rules and the awesomeness of our new and exciting Internet freedom. You can read it here. (I have got to believe this Administration at least borrows speech writers from Russia. This reads like something from Pravda in the Cold War announcing “glorious triumph of new 5 year plan in crushing capitalist running dogs.”) Commissioner Rosenworcel has a much shorter and rather less bombastic counterpoint here.

 

Stay tuned . . .

 

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How Popular Is Net Neutrality? Opponents Have to Hide They Are Campaigning Against It.

Nothing brings home the peculiar nature of “the D.C. Beltway Bubble” than listening to the local news station WTOP. Lets start with the fact that our local 24-hour news station is actually the most popular radio station in the D.C. market. It’s also fun when some incident around the White House or the Capital ends up sequentially on the national news, the local news, and the traffic report.

 

But what really sets D.C. apart is our advertisements. The political ads never stop. Particularly when a major vote is about to happen — such as the upcoming vote in the Senate on S. J. Res. 52, aka the “net neutrality CRA,” aka the repeal of the FCC’s net neutrality repeal. Today (May 9), Senator Markey will file the resolution to force the vote — which is expected to actually happen next week. So, naturally, we are getting all kinds of ads from broadband companies and their various associations (e.g., Broadband for America) trying to push the public to get their Senators to vote against the resolution.

 

The problem for the anti-net neutrality folks, however, is that network neutrality remains enormously popular with the general public. Which leaves these groups trying to rally the public with a problem. Die-hard anti-net neutrality folks like Rep. Marsha Blackburn may think “let ISPs discriminate so that your online experience can be more like going through a TSA security line before flying” is a selling point, people who actually sell stuff for a living recognize that “make your browsing experience like your airline experience with long waits and hidden fees” is kind of a loser.  So if you just advertise “The Senate is considering a resolution to restore the network neutrality rules the FCC repealed last December, call your Senator today and tell them to stand up for ISP freedom to throttle competitors charge new fees ‘innovate’!” — odds are good you will actually drive lots of people to call their Senator and tell them to vote for the resolution and restore net neutrality. (Which, btw, you can do here.) So how do you campaign against network neutrality without actually telling the public you are voting against restoring the net neutrality rules?

 

UPDATE: Jay Cassono has this piece in Medium providing details on a similar scam opposing net neutrality while pretending to be in favor.

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What You Need To Know About Repealing The Repeal of Net Neutrality — How The CRA Works.

There is a great deal of excitement, but also a great deal of misunderstanding, about the effort to “repeal the repeal” of net neutrality using the Congressional Review Act (CRA). On the one hand, we have folks who are confused by the enormous progress made so far and think that we are just one vote shy of repealing the repeal. On the other extreme, we have the folks declaring the effort totally doomed and impossible from the start.

 

You can read the relevant statutory provisions here at 5 U.S.C. 801-08. Briefly, a “Resolution of Disapproval” (which we refer to as a “CRA” rather than a “CRD” just to confuse people) must pass both the Senate and the House (in either order) and then be signed by the President like any other piece of legislation. If the President vetoes Congress may override the veto with a 2/3 vote as it can with any other vetoed legislation. You might think that this makes it impossible for the minority party to get legislation passed. But the CRA was designed to allow a majority of members to pass a Resolution of Disapproval over the objections of the leadership and on a bare majority (so it circumvents the filibuster). And while yes, it must still get past the President, there are reasons to think that is not as impossible as some folks think.

 

 

Right now, the action has been in the Senate, where Minority Leader Chuck Schumer has announced that all 47 Democrats (and the 2 independents who caucus with them) will vote for the CRA. With Republican Susan Collins (R-ME) joining her fellow Senator from Maine Angus King (I-ME), that makes the total number of yes votes 50. So if Dems find one more “yes” vote in the Senate, they can clear that hurdle. But while this is extraordinary news in a very short period of time (technically, it is still too early to even introduce a CRA on the FCC’s net neutrality vote, since the item has not been published in the federal register) — we still have a long way to go to get this over the finish line.

 

But, just to provide some historic perspective. Back in 2003, the nascent (and totally unanticipated by anybody — especially anybody with any experience in media policy) media reform movement rose up against the roll back of all media ownership rules by then-FCC chair Michael Powell. Republican FCC, Republican Congress, Republican President — all supportive of the roll back and big deregulators. Nevertheless, against all odds, we managed to push through a partial roll back by freezing the national ownership limit at 39% (which, not by coincidence, was the ownership level of the largest holding companies — News Corp. and Viacom — as seen in this West Wing episode). So yeah, sometimes the universe give us some long-shot unexpected surprises.

 

I discuss the details of a CRA, and why I think we can win this (and even if we don’t, why it still works in our favor overall), below. In the meantime, you can go to this Public Knowledge resource page to contact your Senators and Representative directly and push them to vote for the Net Neutrality CRA.

 

UPDATE: Matt Schettenhelm pointed out to me that while 30 Senators bypases the Committee and gets on the calendar, you still need to win a motion to proceed before debate and final up down vote. See this article here. I’ve corrected this below.

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The History of Net Neutrality In 13 Years of Tales of the Sausage Factory (with a few additions). Part I

I keep being asked by people “Harold, can you please summarize the last 20 years of net neutrality for me while I stand on one foot?” Usually I answer: “do not do unto other packets what you find hateful for your favorite bitstream. The rest is commentary — located at 47 C.F.R. Part 8.” Alternatively, I send them to John Oliver’s 2017 piece on net neutrality. Or, if you want the longer story going back to the 1960s/70s, you can read this excellent piece by Tim Wu (who invented the term “net neutrality” in the first place).

 

But, as I’ve mentioned more than a few times in recent weeks, I’ve been doing this issue for a very, very long time. In fact, pretty much since the first time the question of how to classify cable modem service came up in 1998. So, in the spirit of “end of year montages,” I will now take you on a brief tour of the history of net neutrality at Tales of the Sausage Factory (with a few outside link additions) from my first post on the Brand X case back in 2004 to June 2016, when the D.C. Circuit affirmed the FCC’s 2015 Reclassification and Net Neutrality Order.

 

Although I suppose you could read the version I wrote about this in December 2015 to bring everyone up to date before the last court fight. Have I mentioned I’ve been doing this for a long, long time now and am repeating myself an awful lot? That’s why I spend more than 5000 words here and only get up to the beginning of 2009.

 

Prepare you favorite montage music and see more below . . .

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How DEA Got It’s Revenge For Getting Called On Abusing Authority — And Why This Will Make Things Like Civil Asset Forfeiture Reform Harder

I love neither DEA or PhARMA, but the business about Congress passing a last year to make it “harder for DEE to stop drug companies selling drugs to drug dealers” is a load of crap. Or, perhaps more accurately, it is a brilliant example of how the DEA and other police organizations retaliate against lawmakers who curb their authority when they abuse it, and how an easily manipulatable press and easily manipulatable public eats it up with a spoon.
 
Here’s the infamous 2016 final statute. If you click through to the text, and then look at the statute amended (21 U.S.C. 824), you will observe that what the 2016 statute did was require that before DEA arbitrarily stripped companies of their license to ship controlled substances (like opioids), they had to (a) identify what law they thought was being broken, and (b) had to show that there was a real likelihood the drugs would be diverted for misuse, rather than just arbitrarily decide that hospital X or pharmacy Y had already received “too much” Oxycontin for the month. 
 
As usual, explaining something like this is complicated. Short version, the bill curbed a bunch of nasty abuses by the DEA. Of course PhARMA spent millions to get it passed. DEA is obscenely powerful and their abuses in this regard are fairly disruptive and legendary in the pharmacy and hospital world. And the thorough nature of their revenge here shows how DEA gets away with it. By spinning a bill that curbed DEA’s extra-legal abuses as a corrupt bargain between the hated drug makers and corrupt members of Congress, DEA has made it very clear what happens when you cross them. If you wonder why so few lawmakers want to take on issues like police brutality, civil asset forfeiture, or even horrendously price gouging prison phone rates, this is why.
I explain in great detail below.

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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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