Tales of the Sausage Factory

No, the FTC CANNOT Have A Ban On All ISP Blocking.

Since most folks won’t plow through 5500 words of legal analysis, I’ve gotten some requests to specifically address the claims by Federal Communications Commission Chairman Ajit Pai and others that the Federal Trade Commission can address blocking as easily as the FCC and prevent any Internet service provider from blocking any content or application. My short answer is: “No.

Can the FTC Really Handle Net Neutrality? Let’s Check Against the 4 Most Famous Violations.

Federal Communications Commission Chairman Ajit Pai and defenders of the draft Order insist that a combination of the Federal Trade Commission (FTC) Section 5 (15 U.S.C. 45), state consumer protection law, and anti-trust law will provide more than adequate protection for consumers and anyone who doubts this is — you guessed it — fear mongering. Happily, we do not need to speculate on this entirely.

The DOJ’s Case Against AT&T Is Stronger Than You Think — Again.

Demanding divestiture of either the must have content or the DIRECTV distribution platform is precisely the remedy you would expect if you believe the deal presents significant harm because of the vertical integration issues. That’s been the position of my employer, Public Knowledge, which has opposed the transaction since AT&T announced the deal. (That predates Trump’s election, for those of you wondering.) If you want a more detailed understanding of the theory of the harms, you can find it in my boss Gene Kimmelman’s testimony to Congress here.

Will Pai “Pull A Putin” And Hack the FCC Process? Or Will He Get Over Himself and Start Acting Like The Chairman?

[Commentary] In my 20+ years of doing telecommunications policy, I have never seen a Federal Communications Commission 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 Chairman 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 President Trump and Chairman 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.

Welcome Back to the Net Neutrality Fight Summer Blockbuster Reboot!

[Commentary] As with so many things, I can’t believe we are going to reboot this franchise [network neutrality] once again and run through pretty much the same arguments. But as with repeal of Obamacare, Republicans would rather focus themselves on undoing Obama’s legacy rather than moving on and getting stuff done. Since they run the show, we play this game again.

[Harold Feld is senior vice president at Public Knowledge]

Trump Keeps Us All Guessing On Telecom.

[Commentary] Usually in January, especially with a new Congress of new term, I like to try to do a “this year in telecom” preview. 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 Internet service provider 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 telecommunications 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 Federal Communications Commission 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 in Dec. So as we count down the days until the Trump inauguration and a new FCC, we have no better idea about the incoming Trump Administration’s ultimate policy goals. We can guess ’til the cows come home. We can assume that the Pai/O’Reilly FCC will do what it can to move as quickly as possible to roll things back — or at least set the table to roll things back. Or will they wait for instructions from the Administration? Or do they already have a green light to go ahead? I guess we’ll find out in two weeks.

Is Net Neutrality (And Everything Else) Not Dead Yet or Pining For the Fjords? Contemplating Trump’s Telecom Policy.

[Commentary] The election of Donald Trump has prompted great speculation over the direction of telecommunications policy in the near future. I have now been through two transitions where the party with the White House has controlled Congress. In neither case have things worked out as expected. Oh, I’m not going to pretend that everything will be hunky-dory in the land of telecom (at least not from my perspective).

But having won things during the Bush years (expanding unlicensed spectrum, for example), and lost things in the Obama years (net neutrality 2010), I am not prepared to lay down and die, either. Telecom policy — and particularly net neutrality, Title II and privacy — now exists in an unusual, quantum state that can best be defined with reference to Monty Python. On the one hand, I will assert that net neutrality is not dead yet. On the other hand, it may be that I am simply fooling myself that net neutrality is simply pining for the fjords when, in fact, it is deceased, passed on, has run up the curtain and joined the choir invisible.

[Harold Feld is senior vice president at Public Knowledge]

The George Washington Pledge: “To Bigotry No Sanction, To Persecution No Assistance.”

“I pledge to give to bigotry no sanction, to persecution no assistance. I pledge to work toward a world where everyone may sit under their own vine and fig tree, and there shall be none to make them afraid. A world that scatters light and not darkness in our paths, and makes us all in our several vocations useful here, and in due time and way everlastingly happy.”

We live now in a time when it is the duty of those of us committed to the success of the American Experiment in self-rule to remember the promises and values which the founders of our country made the foundation of governance. Whatever their past success, whatever the sincerity of those who wrote the words, it falls on us to do our part to make these foundational values real. To quote the words of our first President: “If we have wisdom to make the best use of the advantages with which we are now favored, we cannot fail, under the just administration of a good Government, to become a great and a happy people.”

Are Police Jamming Cell Phones At Standing Rock Protest? The FCC Should Investigate.

[Commentary] Setting aside my personal feelings about democracy, freedom to peacefully protest, and how the Sioux concerns seem rather justified in light of the Alabama pipeline explosion, this has now raised an interesting communications issue that only a Federal Communications Commission investigation can solve. Are police jamming, or illegally spying, on communications at the protest and associated Sacred Stone Camp?

I have seen a number of communications from the protest about jamming, particularly in the period immediately before and during the Oct 27 effort by police to force protesters off the land owned by Dakota Access Pipeline. The FCC needs to send an enforcement team to Standing Rock to check things out. Given the enormous public interest at stake in protecting the free flow of communications from peaceful protests, and the enormous public interest in continuing live coverage of the protests, the FCC should move quickly to resolve these concerns. If law enforcement in the area are illegally jamming communications, or illegally intercepting and tracking cell phone use, the FCC needs to expose this quickly and stop it. If law enforcement are innocent of such conduct, only an FCC investigation on the scene can effectively clear them. In either case, the public deserves to know — and to have confidence in the Rule of Law with regard to electronic communications.

[Harold Feld is the senior vice president at Public Knowledge]

FCC Tells You About Your Phone Transition — Y’all Might Want To Pay Attention.

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.