Harold Feld

Mind Your Own Business: Protecting Proprietary Third-Party Information From Digital Platforms

Vendors must expose proprietary information, such as sales data or logistic information, to digital platforms like Amazon or Facebook in order to reach customers on those platforms. This gives digital platforms the ability to use vendor proprietary information to create, price, and market rival products, enabling platforms to unfairly benefit from the work, business acumen, and risks taken by third-party vendors. Although accusations against Amazon have received the most press coverage, the problem goes well beyond Amazon and undermines competition broadly. 

The Trump Administration Goes to War over 5G, with Itself

Things have now come to an all-out war between the Department of Defense and the Federal Communications Commission, with the Defense Department claiming that a recent decision by the FCC (on a 5-0 bipartisan vote) resolving a decades-long dispute with a company now called Ligado will interfere with vital GPS operations.

The Trump Administration Goes to War on 5G — With Itself

Perhaps the most impressive thing about 5G – the next generation of wireless technology — is that it manages to bridge the hyper-partisan divide in Washington (DC).

Want to Keep America Home? Give Everyone Free Basic Broadband.

Here is a very simple idea to persuade Americans to stay home, keep our virtual society running, and stimulate the economy. As part of the coronavirus stimulus package, the US government will cover everyone’s broadband bill for a basic connection capable of supporting two-way video (ideally 25/25 Mbps, but we may have to settle for the Federal Communications Commission official definition of broadband of 25/3 Mbps). 

Auctioning a Chunk of 6 GHz Would be Phenomenally Bad Policy.

If you follow spectrum policy at all, you will have heard about the C-Band Auction and the 5.9 GHz fight. But you would be forgiven if you hadn’t heard much about the fight over opening the

Last-Minute Change to FCC Rural Broadband Fund May Ban Grants for Millions of Unconnected Americans

In his dissenting statement, Federal Communications Commissioner Geoffrey Starks objected to a sentence included since the initial draft of the Rural Digital Opportunity Fund Order. The Starks dissent states: “The version of the Order now before us excludes from RDOF any area that the Commission ‘know[s] to be awarded funding through the U.S. Department of Agriculture’s ReConnect Program or other similar federal or state broadband subsidy programs, or those subject to enforceable broadband deployment obligations.’” (emphasis in original)

My Insanely Long Field Guide To The C-Band Spectrum Fight, And Why This Won’t End In December.

The C-Band is a slice of spectrum that in the US that lies between 3.7 GHz and 4.2 GHz. When first authorized for commercial satellite use back in the day, these frequencies were considered far too high to have much value for terrestrial use.

Mozilla v. FCC Reaction, or Net Neutrality Telenovela Gets Renewed For At Least Two More Seasons.

The short version is that we lost the big prize (getting the Order overturned, or “vacated” as we lawyers say), but won enough to force this back to the Federal Communications Commission for further proceedings (which may yet result in the “Restoring Internet Freedom Order” or RIFO being reversed and/or vacated) and open up new fronts in the states.

A Tax on Silicon Valley Is A Dumb Way to Solve Digital Divide, But Might Be A Smart Way To Protect Privacy.

What sort of a tax on Silicon Valley (and others) might make sense from a social policy perspective? What about a tax on the sale of personal information, including the use of personal information for ad placement? To be clear, I’m not talking about a tax on collecting information or on using the information collected. I’m talking a tax on two-types of commercial transactions; selling information about individuals to third parties, or indirectly selling information to third parties via targeted advertising. It would be sort of a carbon tax for privacy pollution.

Making the Digital Transition an “Upgrade for All” Again

Copper networks still form the backbone of America’s communication system despite the rise of fiber -- and providers are either pulling the plug or letting them fall into disrepair.

Could the FCC Regulate Social Media Under Section 230? No.

Apparently, the White House is considering a potential Executive Order to address the ongoing-yet-unproven allegations of pro-liberal, anti-conservative bias by companies such as Facebook, Twitter, and Google.

Public Knowledge Cautions FCC Robocall Order Could Create New Service Fee

The Federal Communications Commission published a draft Order in the “Advanced Methods to Target and Eliminate Unlawful Robocalls” proceeding. On June 6, the FCC will vote on a Declaratory Ruling and Third Further Notice of Proposed Rulemaking from this proceeding to enable carriers to block robocalls.

The Case for the Digital Platform Act

To the challenges posed by the power of digital platforms, we need a “Digital Platform Act” to create an agency specifically charged to regulate digital platforms on an ongoing basis. An expert agency over digital platforms can analyze and study the market to determine when regulation or enforcement are needed, including if:

Public Knowledge Urges Congress to Question FCC’s 5G Plan

On April 12, the Federal Communications Commission announced a plan for promoting 5G which includes the nation’s largest spectrum auction in Dec 2019 and the promised future creation of a $20.4 billion rural broadband investment fund, “The Rural Digital Opportunity Fund,” to help close the digital divide. Harold Feld said, "April 12’s announcement raises many questions. Most importantly, where will this money come from and over how many years?

How Not To Train Your Agency, Or Why The FTC Is Toothless.

It was quite noteworthy to see Freshman Sen Josh Hawley (R-MO) tear the Federal Trade Commission a new one for its failure to do anything about how tech companies generally (and Google and Facebook specifically) vacuum up everyone’s personal information. I’m not going to argue with Sen Hawley, but since he is new in town I think it is important for him to understand why the FTC (and other federal agencies charged with consumer protection) have generally gone from fearsome watchdog to timorous toothless Chihuahua with laryngitis.

What Makes Sen Warren’s Platform Proposal So Potentially Important.

March 8, the Presidential campaign of Elizabeth Warren, not to be confused with the actual office of Sen Elizabeth Warren (D-MA), announced Warren’s plan for addressing the tech giants. What makes Warren’s contribution a potential game changer is that she goes well beyond the standard “break ’em up” rhetoric that has dominated most of the conversation to date, and focuses on sustainable sector specific regulation. What makes it so important and smart structurally is that the proposal: 

The Market for Privacy Lemons. Why “The Market” Can’t Solve The Privacy Problem Without Regulation.

For the last 25 years, the official policy of the United States with regard to digital privacy has been to rely on "market mechanisms," primarily policed by the Federal Trade Commission's Section 5 authority to prosecute "unfair and deceptive" practices.

Net Neutrality Oral Argument Highlights Problem For Pai: You Can’t Hide The Policy Implications Of Your Actions From Judges.

On Feb 1, we had approximately 4.5 hours of oral argument on the network neutrality case. I want to just highlight one theme: the refusal of the Federal Communications Commission to be honest about the expected policy consequences of its actions. I highlight this for several reasons. First, people need to understand that while the agency can always change its mind, it has to follow the Administrative Procedure Act (APA), which includes addressing the factual record, acknowledging the change in policy from the previous FCC, and explaining why it makes a different decision this time around.

Fun Arguments To Watch At Net Neutrality Oral Argument

I thought I would point out some of the more fun arguments that may come up on Feb 1 in the oral argument in Mozilla v. FCC, the challenge to the Restoring Internet Freedom Order (RIFO). As always, keep in mind that oral argument is a perilous guide to the final order, and the judges on the panel have a reputation for peppering both sides with tough questions. 

Public Knowledge Demands FTC, FCC Get Off Privacy Sidelines and Enforce Existing Law

Jan 15, reports surfaced that Voipo, a California voice-over-internet-protocol (VOIP) provider, exposed millions of consumer call logs and text messages stored on an “improperly secured” ElasticSearch database for several months before security researcher Justin Paine located them. Public Knowledge demands that Federal Communications Commission Chairman Ajit Pai enforce existing Customer Proprietary Network Information (CPNI) rules that protect the privacy of information related to telephone calls.

Why “Wi-Fi 6” Tells You Exactly What You’re Buying, But “5G” Doesn’t Tell You Anything.

Welcome to 2019, where you will find aggressively marketed to you a new upgrade in Wi-Fi called “Wi-Fi 6” and just about every mobile provider will try to sell you some “new, exciting, 5G service!” But funny thing. If you buy a new “Wi-Fi 6” wireless router you know exactly what you’re getting. It supports the latest IEEE 802.11ax protocol, operating on existing Wi-Fi frequencies of 2.4 GHz and 5 GHz, and any other frequencies listed on the package.

Tumblr, Consolidation and The Gentrification of Internet.

Tumblr recently announced it will ban adult content.  Although partially in response to the discovery of a number of communities posting child pornography and subsequent ban of the Tumblr ap from the extremely important Apple ap store, a former engineer at Tumblr said the change has been in works for months. The change was mandated by Tumblr’s corporate parent Verizon, in order to attract greater advertising revenue.

Chairman Pai Continues Radical Deregulation Agenda. Next On The Menu — SMS Texting and Short Codes

On the anniversary of the repeal of network neutrality, Federal Communications Commission Chairman Ajit Pai now proposes another goodie for carriers – classifying both short codes and text messages as Title I “information service” rather than a Title II telecommunications service. As this is even more ridiculous than 2017’s reclassification of broadband as Title I, the draft Order relies primarily on the false claim that classifying text messaging as Title I is an anti-robocall measure.

We Need to Fix the News Media, Not Just Social Media—Part 3

This blog post addresses how the business side of journalism needs to evolve to maintain sustainable news production necessary for a healthy democracy. I discuss the basic business models for supporting journalism that have endured throughout the last few centuries of technological change, how these may be successfully adapted to the 21st Century, and what policies would facilitate the transition to these new models.