Harold Feld

[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.”

[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]