Harold Feld

[Commentary] Here’s the funny thing about the world. The two Orders the Federal Communications Commission will vote on 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. 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. 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.

[Commentary] Hell hath no fury like an incumbent local exchange carrier (ILEC) scorned. So it is perhaps no surprise that AT&T has decided to heap much scorn on Verizon for playing smart and flipping sides on the debate on how to improve regulation of the Business Data Service (BDS), nee special access. While perhaps understandable from an emotional perspective, this response is — to use a technical legal phrase — silly. Worse, taken to its logical extreme, it has the same corrosive effect on rulemaking as the accusation of “flip flopping” has on politics. We keep saying we want people to actually negotiate and look for compromises that reflect the changing reality. But when someone actually says “OK, you know what, lets recognize that reality isn’t so black and white as people make it out and we should look for a workable compromise,” then everyone is like “Flip Flopper! How can we possibly take you seriously now that you will no longer fight to the death!"

As I explain below, AT&T (and other ILECs) would gain much more by joining Verizon in negotiating for a transition away from the ILEC monopoly on the high capacity data circuit to a more competitive market structure. Rather than throwing a hissy fit, AT&T should embrace its usual path of shrewd negotiation.

[Commentary] The 1.1 million public comments the Federal Communications Commission has received on its network neutrality proceeding do not simply reflect the talking points we see in the mainstream media and debated in Washington (DC) policy circles. We have started to see some data crunching of this data, with a range of results.

Perhaps most tellingly, the number of individual comments opposing net neutrality regulations as unnecessary and overly burdensome government regulation of the Internet is so small as to be statistically irrelevant to data visualization analysis.

So what are the big trends? The individual comments skew almost entirely in favor of having net neutrality rules, the number of unique individual comments not derived from templates is unusually high, people are really thinking about this and really engaged with it -- more so than with other comparable regulatory proceedings, and most individuals thinking about this care about net neutrality in ways not addressed by mainstream coverage.

Specifically, they care about net neutrality as an expression of fundamental values of basic fairness, opportunity, the American Dream, and preserving free expression and diversity of views.

[Commentary] For those following the debate around whether to classify broadband access service as a “Title II” telecommunications service under the Communications Act of 1934, you may have heard about a thing called “forbearance.”

For those unfamiliar with telecom law lingo, “forbearance” refers to a special magic power that Congress gave the Federal Communications Commission as part of the Telecommunications Act of 1996 which gives the FCC the power to say “you know that specific provision of law that Congress passed? We decide it really doesn’t make sense for us to enforce it in some particular case, so we will “forbear” (hence the term ‘forbearance’) from enforcing it.” Or, as the DC Circuit explained in a case called Orloff v. Federal Communications Commission, once the FCC invokes forbearance and decides to forbear from a particular statute, the statute for all practical purposes disappears.

For those familiar with the argument, you will also know that the anti-Network Neutrality camp argues that getting the FCC to forbear from any rule is such a horribly complicated and detailed market-by-market analysis that the FCC couldn’t possibly grant the kind of broad, nationwide forbearance we would need to make Title II workable. As someone who actually lived through the 8 years of the Bush Administration and saw almost every single pro-competition provision of the 1996 Act stripped away by forbearance proceedings, I can only say “hah, I wish.”

[Commentary] The extremely aggressive bandwidth caps that most mobile providers impose -- particularly AT&T and Verizon -- don’t make any sense as a way to manage congestion and that they seriously undermine the value of mobile broadband to consumers.

The wireless carriers -- particularly AT&T and Verizon -- argue that they need to use caps to manage congestion and stop “bandwidth hogs” from destroying our national wireless networks with their cat videos. Now comes T-Mobile with fairly rock solid evidence that bandwidth caps have nothing to do with technical constraints and everything to do with AT&T and Verizon holding most of the good wireless spectrum used for mobile broadband.

Subscribers not using streaming media for fear of surpassing data caps hurts not only our ability to use broadband to its fullest potential, but has serious implications for the Open Internet and network neutrality. As we’ve argued all along, there’s no real reason to cap broadband. It’s not because AT&T and Verizon are protecting our networks from bandwidth hogs. It’s because AT&T and Verizon are leveraging their spectrum market power so they can overcharge subscribers and drive out competitors.

The FCC needs to fix data roaming. Separately, it needs to crack down on data caps that increasingly look like nothing more than a way to leverage market power to inflate prices and hurt potential competitors.

[Commentary] The Supreme Court stubbornly refuses to address Red Lion. Not only did Minority Television Project provide the opportunity to overrule Red Lion and abolish all those pesky ownership limits and public interest obligations, it framed this as an opportunity to further expand Citizens United.

How could the majority possibly resist, especially given the groupthink that the Supreme Court is simply lusting to overturn Red Lion and totally deregulate the broadcast industry at the first opportunity? And yet, somehow, they resisted. The FCC’s authority to impose broadcast ownership limits (and other spectrum ownership limits for that matter) remains not only intact, but subject to the lenient “rational basis” standard of scrutiny.

[Commentary] The Federal Communications Commission will vote on a plan to conduct an “incentive auction,” that will pay television broadcasters to give up some of their existing wireless capacity so the FCC can auction it to wireless companies for mobile broadband. As part of this decision, the FCC will consider whether -- as suggested by the Department of Justice Antitrust Division among others -- to adopt rules that keep AT&T and Verizon from strangling competition.

AT&T and Verizon have launched a frantic last minute campaign to eliminate the reserve and retain the right to once again foreclose competition by buying up the licenses. In a nice spot of Orwellian messaging, supporters of AT&T and Verizon accuse the FCC of ‘acting like a cartel’ and ‘picking winners and losers’ by refusing to let AT&T and Verizon monopolize the spectrum. But the proposed spectrum reserve lets consumers, rather than the government spectrum auction, ‘pick winners and losers.’

Eliminating the reserve would convert the auction of spectrum licenses into an auction for a government-sanctioned duopoly. If we really “want the market to decide” -- the actual wireless market where customers choose the carrier that provides the best prices and the best service – then the FCC needs to keep the spectrum reserve when it votes.

[Feld is Public Knowledge's senior vice president]

[Commentary] So for those of you first timers, and those of you who have gone so long without a contentious Federal Communications Commission meeting you’ve forgotten how it’s done, I’ve prepared this helpful guide on “what is an FCC meeting and what are the big items up for grabs.”

By law, the FCC must meet at least once each calendar month. Under the Government In The Sunshine Act, all Commission meetings are open to the public. If you plan to attend, you will need government-issued ID to get into the building. The meeting on network neutrality/open Internet starts at 10:30 a.m., but expect crowds, hopefully protesters as well. Sitting in front of the Commission is a table where sit the FCC staff charged with presenting the item.

The relevant staffer will read a summary of the item. The staffer will close with “staff request editorial privileges” which is a code word for “we may not actually have finished writing the item, especially if there was a bunch of last minute negotiation. We promise to get it written and circulated to all of you for sign off before we issue it to the public.”

Because of this, it may take some time for the actual item voted to appear on the FCC’s website or be publicly available. The Chair will then open the floor to each Commissioner in turn, by seniority, to make comments/read an official statement.

The batting Order is: Commissioners Mignon Clyburn, Jessica Rosenworcel, Ajit Pai, Michael O’Reilly. (It is coincidence that at the moment this is divided by party, with the Republicans all junior to the Democrats by seniority.) Then the Chairman will have the opportunity to make a statement. After that, the Chairman calls for a formal vote and each Commissioner votes.

The public does not get to speak. This is not an “open meeting” like a town hall where the FCC gathers evidence. This is like a floor vote in Congress. You get to watch the action but the outcome is usually determined in advance.

[Commentary] Federal Communications Commission Chairman Tom Wheeler caused quite a stir when he circulated a new Notice of Proposed Rulemaking on network neutrality.

The proposed rule moves away from generally prohibiting wireline broadband providers from offering “paid prioritization” (aka Internet “fast lanes”) to explicitly permitting wireline providers to offer paid prioritization subject to conditions designed to guard against anti-competitive and anti-consumer conduct. To employ a crude analogy, network neutrality supporters see Chairman Wheeler’s proposal as roughly the equivalent of teaching the rhythm method in sex ed, while opponents are outraged that Chairman Wheeler would teach anything other than pure abstinence.

But we as consumer advocates must reiterate to members of Congress in both parties, and to the White House, that because the DC Circuit has made it clear that the only way to have network neutrality is to classify broadband access as a Title II telecommunications service that is what they must do. We must show not merely the 3 Democrats on the FCC, but the rest of the political class in Washington, that Title II reclassification is not a “nuclear option” or “third rail” but a necessary and well supported prerequisite to a healthy Internet policy.

[Commentary] At the press conference following the Federal Communication Commission (FCC) March 31 Open Meeting, FCC Chairman Tom Wheeler made the following observation: “Interconnection is part of the Network Compact. ‘Peering’ is just a $3.50 word for interconnection.” Personally, I think most people are totally misreading this.

Chairman Wheeler’s statements make it look more likely to me that the FCC will start looking closely at the Internet peering market, not less likely, especially as part of the Comcast/Time Warner Cable deal.

l rant at considerable length that (a) Chairman Wheeler is right, this is not a “network neutrality” issue, but the same goddam interconnection issue that we have struggled with for more than a hundred years in every networked industry from railroads to electricity to broadband; (b) The FCC needs to actually look at this and study it and understand how the market works before it makes any decisions on what to do; and, (c) While Chairman Wheeler is not saying -- in any way, shape or form -- that he actually plans to do anything before he has real information on which to base a decision, he is signaling -- for anyone actually paying attention -- that he is, in fact, going to actually look at this as part of his overall transition of the agency around his “Fourth Network Revolution” and “Network Compact” ideas.