Harold Feld

“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.”

The Federal Communications Commission cancelled its agenda items for the Thursday, November 17 Open Meeting. The following may be attributed to Harold Feld, Senior Vice President at Public Knowledge:

“We are disappointed that the FCC will not act on the previously announced November agenda. While respecting the tradition that the FCC should generally wait for the new administration before acting on any new initiatives, these items were essentially completed and ready to move. It seems absurd that if Chairman Wheeler had scheduled the meeting on election day, we would have already resolved the decade-old proceeding on legacy business data services pricing. More importantly, the agenda items address real and pressing problems in the broadband marketplace. These problems do not simply go away due to an administration change. When Republicans take over, they will need to address the same competitive problems, or explain to the American people why they plan to perpetuate our broadband duopoly.”

[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]

[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.