Tales of the Sausage Factory

“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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Tales of the Sausage Factory

Interest Rates And Auction Policy –Why The FCC Should Move Quickly On A 5G Auction.

It is a measure of how much communications policy warps my brain that my thoughts about the rise in the Consumer Price Index (CPI) and the likelihood that the Federal Reserve will raise interest rates aggressively as a result have little to do with the impact on stocks, or even my credit card debt, but go directly to the impact on any future spectrum auction. Short version — nothing good. So if we needed another reason for the FCC to move quickly to schedule the next 5G Auction, the potential rise in interest rates is a good one.

 

I explain this in more detail below . . .

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Tales of the Sausage Factory

Can The States Really Pass Their Own Net Neutrality Laws? Here’s Why I Think Yes.

We are seeing lots of activity in the states on net neutrality. The Governors of MontanaNew York and New Jersey have issued Executive Orders requiring that any broadband provider doing business with the state must certify that it won’t block, throttle, or prioritize any content or applications. Several states are looking at passing legislation applying some version of the 2015 FCC Net Neutrality Rules, with California furthest along in passing something that effectively replicates the pre-2017 rules. All of which raises the question — can the states actually do that?

 

The FCC not only says “no,” but in the 2017 Net Neutrality Repeal Order, the FCC purported to explicitly preempt any state effort to recreate any net neutrality rules. However, as I pointed out back in 2011 when Republican Commissioners wanted to preempt state reporting requirements, the FCC does not have unlimited preemption power. The FCC has to actually have some source of authority to preempt localities. Indeed, Chairman Pai was so insistent that the FCC lacked the authority to preempt state regulation of intrastate communications services that — in a highly unusual move — he refused to defend the portion of the FCC’s Prison Phone Order capping intrastate rates.

 

 

The critical question is not, as some people seem to think, whether broadband involves interstate communications or not. Of course it does. So does ye olde plain old telephone service (POTS), and state regulated that up to the eyeballs back in the day (even if they have subsequently deregulated it almost entirely). The question is whether Congress has used its power over interstate commerce to preempt the states (directly or by delegating that power to the FCC), or whether Congress has so pervasively regulated the field so as to effectively preempt the states, or whether the state law — while framed as a permissible intrastate regulation — impermissibly regulates interstate commerce (aka the “dormant commerce clause” doctrine). Additionally, certain types of state action, such a the action of the state as a purchaser of services, are exceedingly difficult (if not impossible) to preempt.

 

As always with complicated legal questions, one cannot be 100% sure of how a court will decide. But for the reasons set forth below, I’m reasonably confident that the states can pass their own net neutrality laws. I’m even more confident that a state can decide to purchase services exclusively from carriers that make enforceable pledges not to prioritize or otherwise discriminate against content. Mind you, I don’t think either of these is an effective substitute for federal Title II classification and the 2015 rules. But I encourage states to do what they can and for activists to push for state action in addition to federal action where possible.

 

More below . . . .

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Tales of the Sausage Factory

What You Need To Know About the 2017 Wireless Competition Report.

Federal Communications Commission Chairman (FCC) Ajit Pai has put the 20th Wireless Competition Report on the agenda for the FCC’s September Open Meeting. Technically, the Wireless Competition Report is a non-rulemaking agency report to Congress, similar to the many reports the FCC does on everything from the prices paid for cable services to the state of the Satellite industry. But the Wireless Competition Report has become something of a big deal in recent years, owing to the refusal of the FCC since 2010 to find whether or not there is “effective competition” in the wireless industry. At the same time, then-FCC Chair Julius Genachowski moved the Wireless Competition Report (along with a number of other reports) from being a Commission-level item voted on by the full Commission to a Bureau-level item. This torked a bunch of people off. Those who regarded the wireless market as obviously not competitive saw all this as a failure of courage to call out the wireless market for its lack of competition. OTOH, those who consider the wireless market a paragon of competition derided this as a means for the regulation-mad Obama Administration to impose regulation on a clearly competitive and functioning market.

 

Either way, Pai is now putting it back at the Commission level and the Report is once again finding that we have “effective competition” — whatever that means. So it seems like a good time to run through the Wireless Competition Report, what it is, what it means, what it doesn’t mean, and how it gets used and/or abused. And, of course, how it relates to net neutrality, since everything in the freaking world relates to net neutrality these days.

 

Short version: the Report is non-binding on anything but overall provides a picture of the wireless industry by the expert agency charged by Congress to oversee the industry. It is therefore useful evidence for a lot of things ranging from merger approval to future regulatory initiatives. This years report also finds (surprise!) that although speeds have dramatically improved for mobile broadband, as has deployment generally, the level of investment by carriers dropped 9% from 2015 to 2016. How to measure this investment and how this should or should not impact the Title II debate I have dealt with extensively in this blog post, and therefore won’t spend too much time on it here.

 

Longer version below . . .

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Tales of the Sausage Factory

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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Posted in Censorship Public and Private, How Democracy Works, Or Doesn't, Life In The Sausage Factory, Series of Tubes, Tales of the Sausage Factory | Also tagged , , , , | 1 Comment (Comments closed)

Tales of the Sausage Factory

Will Rural Texas Ever Get Its Phone Service Back After Harvey?

According to the official Federal Communications Commission (FCC) statics (current to August 30), Harvey is having a predictably significant impact on telecommunications in the path of its devastation. We won’t actually know the final damage for awhile yet, but it appears that cell sites are pretty much gone in the counties where Harvey made landfall (but service is being steadily restored). Over 265,000 landline phones have been rendered inoperative. No one expects a communications network to come through an epic flood like Harvey without serious disruption. Indeed, from the very surface look of things, it appears that the communications network in the impact area is performing much better than it did during either Katrina or Sandy.

 

But looking ahead, I have a different question. Once the floodwaters recede and the reconstruction begins, when can residents see their phone service — and broadband service — return. For rural residents of Texas still dependent on traditional landlines, the answer to that may be “never.”

 

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Tales of the Sausage Factory

Why We Need Title II And Strong Net Neutrality Rules; Or, Fool Me Twice, Shame On Me. Fool Me Every Time — I’m the FCC!

As we slog away once again on Federal Communication Commission (FCC) Chairman Ajit Pai’s summer blockbuster reboot “Net Neutrality: The Mummy Returns!,” it’s worth noting in passing the anniversary a previous Pai celebration of industry self-regulation, #DitchTheBox. I bring this up not merely as a fairly bitter bit of Cassandrafreude, but to remind everyone why only those who most desperately want to believe ever put any faith in “industry self-regulation” — especially when that industry is the cable industry.

 

The cable operators, along with the telcos and other broadband access providers, all claim to loooove the basic idea of net neutrality and a “free and open Internet.” Mind you, we still have the occasional True Believer trying to tell us how good for us it would be if ISPs could “innovate” in exciting pricing plans like “screwing with your video streaming to charge you extra” or “blocking/degrading your efforts to access peer-to-peer applications without telling you.” But as an industry, the major broadband providers have recognized that they need some kind of fig leaf concession (preferably cemented into law by a compliant Congress). And so we have seen the cable companies falling all over themselves to swear their undying support for net neutrality and promises to do nothing to harm the open Internet.

 

So a brief review of the history of cable industry self-regulatory promises, and Chairman Pai’s willingness to believe them, seems in order for the day.

 

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Tales of the Sausage Factory

NCTA Agrees Title II Virtuous Cycle Totally Working; Or, Pai’s Economics v. the Actual Real World.

Last week, NCTA, the trade association for the industry formerly known as cable, posted this amazing graph and blog post showing that the “virtuous cycle” the FCC predicted would happen when it adopted the open Internet rules (aka Net Neutrality) back in December 2010. Indeed, as the NCTA graph (based on the latest Akamai State of the Internet Report) shows, the average speed of broadband connections has not only continued to rise since the FCC first adopted net neutrality rules in 2010, but the rate of increase has accelerated since the FCC adopted the Title II Reclassification Order in February 2015. Finally, as NCTA also points out, in the approximately 10 years since the FCC first began to enforce net neutrality through the “Internet Policy Statement” and the Comcast/Bittorrent Complaint, the cost of moving bits from their source to your home has dropped 90% on a per bit basis. (Whether we are actually still paying too much because of our lack of competition in the broadband market is something of a different question.)

 

Perhaps unsurprisingly, this matches the findings from Free Press’ Dr. Erik Turner in this massive and meticulously documented report, “Broadband Investments And Where To Find Them.” But it’s still nice to see NCTA confirm it. One of the advantages of having blogged on net neutrality for 10 years is I can point to things like this 2006 blog post and say: “Hey, I totally predicted that. Glad to see things working as I predicted they would.” This contrasts with the net neutrality haters, who as far back as 2006 that predicted that preventing ISPs from discriminating and prioritizing traffic would result on average broadband quality getting consistently worse a bandwidth kept treating the Internet “like a truck you can just load things on” instead “of a series of tubes.”

 

 

So why did the self-appointed experts get it so wrong? And why do they still fixate on criteria like “ISP CAPEX” that neither Congress nor anyone outside the economics world cares about (and which a reviewing court utterly will not give a crap about) if better faster broadband is getting deployed as we all predicted and Congress directed?

 

 

The answer boils down to the old cliche: “Among economists, the real world is often a special case.” So while all of us out here in the real world focus on things like “hey, is broadband actually getting deployed, and is it getting better and faster and stuff so we can do all the things that make better faster broadband so critical in everyone’s lives these days,” economists poo-poo such concerns as being part of an “economics free zone.” Questioning this navel gazing in Econ Cloud Cuckoo Land will evoke sneers about how silly you must be for not understanding why the actual real world is irrelevant to the purity and wonderfulness of “real” economics. For some odd reason, a lot of folks eat this superior attitude up with a spoon and fail to ask the follow up question like “you know you didn’t actually address the substance of the argument, right?”

 

Anyway, I will below unpack all of this by: (a) reviewing what we actually predicted about the virtuous cycle; (b) reminding folks about the predictions of doom and gloom from the haters in Econ Cloud Cuckoo Lad (that’s a literary reference, btw, for when the usual suspects want to get all fake outragey to avoid dealing with substance); (c) reviewing why the evidence is consistent with the pro-Net Neutrality prediction and falsifies the anti-Net Neutrality prediction; and (d) why this means that if Pai tries to base his roll back of Title II/net neutrality by embracing the Singer/USTA CAPEX argument and ignoring all the other evidence, he is going down in flames in the D.C. Circuit.

 

(I would love include a section on what ISP CAPEX actually should look like, which casts further doubt on the question of the relevancy of any modest drop in ISP CAPEX over time as a useful measure, but I’m gonna have to save that for a later follow up.)

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Tales of the Sausage Factory

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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Posted in "A Republic, if you can keep it", How Democracy Works, Or Doesn't, Life In The Sausage Factory, Series of Tubes, Tales of the Sausage Factory | Also tagged , , , , , | 1 Comment (Comments closed)

Tales of the Sausage Factory

Trump Keeps Us All Guessing On Telecom.

Usually in January, especially with a new Congress of new term, I like to try to do a “this year in telecom” preview. Hell, who doesn’t? (I mean, who in Telecom Policyland doesn’t. The answer for normal people is: “no one.”) But this year I can’t.

 

Oh, I can list all the issues we’ve been arguing over the last few years and guarantee we’re going to re-litigate them. We’ve already seen most of the ISP industry (joined by the Ad industry) push back on the privacy rules adopted last October.  We’ve seen a bunch of the industry submit their wish list for deregulation as part of the bienniel telecom regulatory review. And with Rep. Marsha Blackburn (R-TN) now Chair of the Telecom Subcommittee, we can expect lots of action on the Hill side on everything from FCC process reform to Telecom Act re-write. But the Trump Administration itself — its priorities, its possible pick for FCC Chair, and its general direction on telecom policy — remain as much a mystery as when I wrote about it last month.

 

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