Stuart Brotman

One unreported item regarding President Trump’s nominee for the US Supreme Court, Judge Neil Gorsuch of the US Court of Appeals for the Tenth Circuit, is that he would bring more private practice exposure to telecommunications law to the court than anyone in history. Judge Gorsuch spent a decade at one of DC’s premier law firms, Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC. According to Vault, a reference source that profiles leading law firms, Kellogg Huber Hansen has “a particular depth of experience in the telecommunications industry, representing companies like Verizon and AT&T in both court litigation and dealings with the FCC.” This environment, which Gorsuch experienced daily as a practitioner, likely helped shape his view regarding the power of the Federal Communications Commission (FCC) and other federal agencies involved in regulatory decisionmaking.

At least as far as judicial review of FCC and other agency matters, Gorsuch clearly represents a philosophy that is more skeptical of regulatory overreach and more deferential to Congress. This may send a mixed message for political conservatives who are supporting his nomination—less regulatory intrusion, but perhaps a more activist judiciary. For political liberals, Judge Gorsuch’s assertion of a more powerful role for courts might inspire greater confidence that he would check executive authority by the Trump administration and its successors during what may be his very long tenure on the Supreme Court.

Come Jan 20, President-elect Donald Trump will have the opportunity to continue or suspend many of the technology-focused initiatives begun by President Barack Obama. These programs included expanding broadband access, training workers for jobs in STEM fields, and building supercomputers, among others. Brookings experts Stuart N. Brotman, Robin Lewis, Nicol Turner-Lee, and Niam Yaraghi weigh in on what direction technology policy will take in the Trump administration, and how it might react to future technology change.

Expanding Broadband Access: The incoming administration has expressed its intent to lead its policy priorities with an aggressive infrastructure plan. Referring to the infrastructure goals as a “golden opportunity for accelerated economic growth,” the new leadership plans to rejuvenate the domestic economy by spurring more targeted private investments and creating and recovering jobs. Under what will seemingly be a pro-business, nonregulated market, the threat of broadband “overbuild” looms, bringing new meaning to the cliche “if you build it, will they come.” Whereas technology overbuilds have often led to increased competition in certain markets and lowered consumer prices, an oversaturated broadband market can also create network redundancies, faster depreciation of assets, and decreased consumer demand. Managing supply and demand of broadband services should be at the core of the new administration’s efforts. With unbridled supply, the marketplace will be ripe for competitive offerings and differentiated services, including free or unlimited data plans. Smart digital inclusion plans and programs with clear goals and outcomes should be prioritized to narrow the gap among those who haven’t adopted broadband into their daily lives. Increased investments in digital literacy training, especially within community anchor institutions (e.g., libraries and schools) can cultivate more interest and use. In sum, the new administration’s efforts to expand and maximize infrastructure must equally address the demand for these and other emerging services so that when it’s built, they will indeed come.

Recently, the Federal Communications Commission began stage three of its forward spectrum auction, immediately following the close of the second round. There, broadcasters asked for $40 billion to vacate a portion of the electromagnetic spectrum and make it available for mobile wireless services. Since the FCC-managed auction began earlier in 2016, the price tag has been reduced from an original ask of $86 million. As the price dropped, the FCC began to narrow the range of potential spectrum that it would auction in order to maintain some equilibrium between supply (by broadcasters) and demand (by wireless providers). The current round for bidding encompasses 108 megahertz (MHz) of spectrum instead of the original 126Mhz that was originally offered at the higher price tag.

So far, the wireless operators seem to be holding firm in refusing to meet the minimum price that broadcasters have set for selling this currently-used spectrum. They have indicated a willingness to pay $22 billion for the spectrum, or roughly half of the broadcasters’ target. It is highly unlikely that they now will increase their bids for even less spectrum than was offered in earlier bidding rounds.

It’s not often that the Chairman of the Federal Communications Commission becomes known outside the relatively narrow confines of those who are regulated by the FCC. But Newton N. Minow broke that mold six decades ago, and recently he became the first FCC Chairman ever to be awarded the Presidential Medal of Freedom, our nation’s highest civilian honor.

Minow, only 35 years old when appointed by President Kennedy, achieved what now would be considered viral status by telling the National Association of Broadcasters in May 1961 that their members’ programming was a “vast wasteland.” That speech, and especially this memorable phrase, brought him appearances on Meet the Press, the cover of Time magazine, and even the question to an answer on Jeopardy. But there is so much more to this man than his challenge to the dominant media industry with a catchphrase that has endured for over a half century. His tenure as FCC Chairman was quite brief (about two years), but the impact he had truly shaped the communications revolution. Perhaps his strong suit as FCC Chairman beyond using the bully pulpit of his position was his ability to forge consensus and work closely with Congress in crafting impactful new legislation.

The new Internet service provider privacy rules mandate that consumers must affirmatively opt-in to allow ISP sharing of their app and browsing histories, mobile location data, and any other identifiable information that can be gleaned from internet use. Otherwise, ISPs will be prohibited from undertaking such activities. Behavioral information is the fuel for online targeted advertising. This allows advertisers to tailor their messages and sales offers to consumers who best fit their buying profiles. To advertisers, aggregating real-time information online about consumer interest has significant economic value.

For now, better consumer education should inform the general public about when and how to opt in or opt out, and which entities offer which option. Here, an impactful public service advertising campaign coordinated by The Advertising Council, the non-profit organization and the largest producer of public service programs in the United States, may be an important next step.

Job creation has been a central issue in 2016’s presidential campaign, particularly how best to increase the number of available higher-paying jobs. This challenge is two-fold. First, federal policies must offer greater support for innovative technology-based sectors where the US can compete effectively in global markets. Clean-tech energy businesses promise to be an important source of new employment, with the tangible benefit of addressing other top national priorities—lowering our dependence on foreign oil, reducing our nation’s carbon footprint, and slowing climate change’s impact on the environment. Second, massive job retraining with significant federal funding will help workers without the necessary skills for employment in growing sectors remain part of an essential middle-class economy.

The importance of workforce retraining is underscored in recent reports from the Pew Research Center. Its analysis of government jobs data found that for the past several decades, employment has been rising faster in jobs requiring higher levels of preparation – that is, more education, training and experience. Policymakers should look at these separate Pew Center analyses in tandem—two critical variables in any equation for sustainable job growth. Unless many more adults move into the “digitally ready” category for e-learning, necessary job retraining may not benefit workers in labor sectors that are being left behind.

[Commentary] In recent years, much of our domestic attention on broadband development has focused on residential service, with the National Broadband Plan goal of having 100 million Americans with 100 megabits per second (Mbps) network capability by the year 2020. This aspiration is supported by our nation’s status as one of five countries that I have termed top-tier Net Vitality global leaders (along with France, Japan, South Korea and the United Kingdom). Their prominence in broadband network metrics, along with achievements in other critical aspects of the broadband ecosystem -applications/content and devices – make them examples worth emulating.

But it’s important to highlight the smaller steps of lesser-developed countries since they are more likely to be perceived as role models by other countries in the same category. Net Vitality can and should be a scalable concept. Some countries, including the United States, may be able to take giant strides over an extended period of time. Others, like Kenya, may take smaller, more rapid steps toward broadband ecosystem development. In a localized context, this may represent nothing short of a significant leap ahead.

[Brotman is a nonresident senior fellow in the Center for Technology Innovation within Governance Studies at Brookings]

By the end of September, both the United States and the world at large will reach an important Internet milestone—the handoff of American oversight of the Internet Assigned Numbers Authority (IANA) functions that are needed to maintain the Internet’s Domain Name System (DNS). Legislative intervention still may be pursued with so little time left, but the burden of proof on why these conclusions are incorrect should now be shifted to those who assert that the US is acting hastily or irresponsibly in making this rational change.

[Commentary] A New York Times editorial backs reclassifying Internet service as a telecommunications service because it “would allow regulators to prohibit phone and cable companies like Verizon and Comcast from engaging in unjust or unreasonable content.”

According to the Times, the Federal Communications Commission “wrongly classified broadband as an information service” rather than as a traditional common carrier service under Title II of the Telecommunications Act of 1996.

This may leave the impression that President Barack Obama already has reached the same conclusion, which does not seem to be the case at all. The considerable ongoing analyses by the Obama Administration’s expert advisers and others still represents the sounder approach to policymaking in this complex area.

[Brotman teaches at Harvard Law School]

The mass digitization by Google of millions of books made available to it by various libraries remains a matter of legal contention.

The US Court of Appeals for the Second Circuit will be reviewing a decision in 2013 where the US District Court in New York entered judgment in favor of Google based on a “fair use” defense under the Copyright Act of 1976.

The lower court found Google’s use was “highly transformative” because Google had converted the books’ text into digital form, creating a full text search capability that made existing works more accessible to users, and enabling new forms of research. The case underscores the increasing significance of “transformative use” in evaluating a fair use defense.