Harold Feld

[Commentary] Back in 2013, the NY Times broke a story that AT&T routinely sold “de-identified” phone data to the CIA. Because the CIA is not allowed to do domestic spying, AT&T would sell supposedly anonymous data to the CIA, which would then give the information to the FBI. The FBI would then use its domestic spy powers to get the information from AT&T. In addition to being a rather outrageous work around of laws designed to protect Americans from domestic spying, I argued that AT&T’s program violated federal telemarketing and phone privacy rules, aka Section 222 of the Communications Act of 1934 (47 U.S.C. 222) also known as the “customer proprietary network information” (CPNI) rules. So my employer Public Knowledge, with a number of other public interest and privacy advocates, filed a Request for Declaratory Ruling with the Federal Communications Commission asking the FCC to declare that AT&T selling “de-identified” phone information without customer consent violated the CPNI Rules.

Recently, the Daily Beast reported that AT&T continues to engage in precisely this practice nearly 3 years after we asked the FCC to declare it violated their privacy rules. In fact, the sale to the CIA turned out to be the just part of a larger AT&T “product” called “Project Hemisphere.” According to the Daily Beast and others, law enforcement agencies pay millions of dollars annually to circumvent warrant requirements and gain access to all sorts of call information the law purportedly protects. Which raises the interesting question — why didn’t the FCC do anything on our 3 year old complaint? Recently, FCC Chairman Tom Wheeler circulated a draft Order to the full Commission for a vote scheduled for Oct 27. According to the fact sheet published by the Chairman’s office, the proposed rules will allow for “de-identification,” subject to certain protections. Of particular relevance here, carriers that certify data is anonymized must not re-identify the data, and must have contractual limits that prevent third parties from re-identifying the data.

[Harold Feld is senior vice president for Public Knowledge]

I’ve been writing about the “shut down of the phone system” (and the shift to a new one) since 2012. The Federal Communications Commission adopted a final set of rules to govern how this process will work last July. Because this is a big deal, and because the telecoms are likely to try to move ahead on this quickly, the FCC is having an educational event on Monday, September 26.

For communities, this may seem a long way off. But I feel I really need to evangelize to people here the difference between a process that is done right and a royal unholy screw up that brings down critical communication services. Yes, astoundingly, this is one of those times when everyone (at least at the beginning), has incentive to come to the table and at least try to work together. No, it’s not going to be all happy dances and unicorns and rainbows. Companies still want to avoid spending money, local residents like their current system that they understand just fine, and local governments are going to be wondering how the heck they pay for replacement equipment and services. But the FCC has put together a reasonable framework to push parties to resolve these issues with enough oversight to keep any player that participates in good faith from getting squashed or stalled indefinitely. So, all you folks who might want to get in on this — show up. You can either be there in person or watch the livestream. Monday, September 26, between 1-2 p.m.

[Commentary] I am the last person to deny anyone a good snarky gloat. So while I don’t agree entirely with AT&T’s policy blog post taking a jab at reports of Google Fiber stumbling in deployment, I don’t deny they’re entitled to a good snarky blog post. (Google, I point out, denies any disappointment or plans to slow down.) “Broadband investment is not for the feint hearted,” But the irony faeries love to make sport.

The following week National Digital Inclusion Alliance (NDIA) had a blog post of their own. Using the publicly available data from the Federal Communications Commission’s Form 477 Report, NDIA showed that in Cleveland’s (OH) poorest neighborhoods (which are also predominantly African American), AT&T does not offer wireline broadband better than 1.5 mbps DSL – about the same speed and quality since they first deployed DSL in the neighborhood. This contrasts with AT&T’s announcement in August that it will now make its gigabit broadband service available in downtown Cleveland and certain other neighborhoods. There are two important, but rather different issues here — one immediate to AT&T, one much more broadly with regard to policy. The more important issue is the return of redlining on a massive scale. Thanks to improvements the FCC has made over the years in the annual mandatory broadband provider reporting form (Form 477), we can now construct maps like this for neighborhoods all over the country, and not just from AT&T. As I argued repeatedly when telecommunication companies, cable companies and Silicon Valley joined forces to enact “franchise reform” deregulation in 2005-07 that eliminated pre-existing anti-redlining requirements – profit maximizing firms are gonna act to maximize profit. They are not going to spend money upgrading facilities if they don’t consider it a good investment.

[Commentary] 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 President Barack 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 Hillary 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.

[Commentary] The Ninth Circuit issued a fairly important decision limiting the authority of the Federal Trade Commission (FTC). Unfortunately, certain articles, combined with some overwrought commentary, have generated a lot of confusion. To summarize:
1) This has nothing to do with the Federal Communications Commission’s determination to reclassify broadband as Title II. The court was extremely explicit on this point.
2) There is no “gap in consumer protection” for broadband services – unless Congress or a future FCC reverses the Title II determination. As long as broadband remains a Title II service, the FCC can protect consumers from bad behavior by broadband service providers.
3) Beyond the broadband world, the case has fairly broad and uncertain applications. Arguably, Google could escape FTC jurisdiction by owning Google Fiber, and Amazon could escape FTC jurisdiction by registering its truck fleet as a common carrier freight company regulated by the FMCSA.

Ultimately, however, this case creates real problems for consumer protection by creating significant concerns about the FTC’s authority in a world where large corporations often engage in multiple lines of business – some of which may have “exempt status” under Section 5(a)(2). Hopefully, the FTC will seek review by the full Ninth Circuit, which would be wise to overturn this unfortunate case.

It may seem odd for me to say, and meaning no offense to his replacement Bob Quinn, but I am sorry to see Jim Cicconi retire from AT&T at the end of August. For those who don’t play in this pond, Cicconi has been AT&T’s Lobbyist in Chief here in DC since 2005. It may therefore seem odd that I am sorry to see him go, particularly since Cicconi was so damned good at his job. But, as I have said many times before, I’m not here because companies are evil, nor do I believe the people working for them necessarily delight in crushing consumers, strangling puppies and tossing destitute widows and orphans on the street in rags in the dead of winter.

[Commentary] Greenlight, the muni provider of Wilson (NC), took advantage of the Federal Communications Commission’s 2015 municipal broadband order and began offering gigabit broadband in Pinetop (NC), population 1400. Pinetop lies in Edgecomb County, next door to Wilson County. Under the 2010 North Carolina 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 munipal electric provider, so it wasn’t much of a leap). The legal situation on this is now somewhat complicated. The 6th Circuit 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.

[Commentary] While that seems obvious, we often miss it in policy debates. But it is rather important to keep in mind when reading Tennessee v. FCC. In 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. I thought the FCC majority had the better argument. But I can’t say the Sixth Circuit was utterly wrong in holding the contrary.

Beginning July 19, T-Mobile is offering a limited-time promotion tied to the wildly popular augmented reality game Pokémon GO, in which the mobile data used by the game will not count toward a customer’s data cap. This is yet another form of zero-rating, a practice that can raise serious concerns about competition policy, network neutrality, and consumer choice.

Amidst a global Poké-craze, we shouldn’t lose sight of what this may portend for the future of the open Internet. So we want to take the opportunity to raise a number of questions about this promotion which would also be important to answer for any other zero-rating service proposal. Before concluding anything about this promotion or any similar plans that may be proposed, it is important to better understand their potential dangers and benefits. Whether or not the zero-rating of Pokémon GO constitutes an unreasonable interference or disadvantage, it at least raises important questions that deserve close and immediate scrutiny.

[Commentary] Every now and then, I am reminded that the cable news networks such as Fox and MSNBC are members of the National Cable & Telecommunications Association (NCTA). But seeing this recent blog post reminded me. While faux outrage and hypocrisy are hardly rare in Policyland, you rarely find this level of self-righteous sanctimony outside of cable news. As some folks may recall, I recently opined that AT&T choosing to sulk like Achilles in his tent rather than engage meaningfully in the ongoing rulemaking process.

NCTA — which also opposes the business data service (BDS, formerly special access) proceeding and has adopted the same strategy of acting like a disappointed 6 year old — chooses to deliberately misconstrue this as something other than the Federal Communications Commission’s standard, open ex parte process. What magnifies this almost to the level of self-parody is that NCTA is engaged in exactly this behavior on set-top boxes (STBs), where it has popped out with a sudden alternative #ditchthebox to the FCC’s #unlockthebox proposal. In all cases, of course, NCTA paradoxically insists that any refusal to negotiate around their proposals is somehow a sign that the FCC has impermissibly pre-decided. But if the FCC considers anyone else’s response to their proposals, or engages with stakeholders outside of the comment and/or reply comment period, it is a “smoke filled room.”