Analysis

In April 2017, the Federal Communications Commission began a wireline infrastructure proceeding designed to accelerate broadband deployment. The proceeding contains multiple proposals to remove barriers to broadband deployment and infrastructure, such as reforming pole attachment rates and preempting state and local laws. Buried within these proposals is a plan to eliminate “tech transitions” rules, which outline the responsibilities of phone carriers when they choose to retire copper networks or discontinue service. The FCC is seeking to eliminate these rules by shortening the notice period for copper retirement and removing the requirement that carriers must consider what impact their network changes will have on other technologies. In other words, the FCC is now acting to enable carriers to quickly abandon copper services without considering the consequences for communities. But what is worse, rather repeal these rules directly, the FCC has decided to hide its intent behind a “technical” change in definition.

As we’ve seen from all of the groups that filed comments with the FCC, eliminating common-sense notification rules would impact consumers, small businesses, and competitive carriers, particularly the nation’s most vulnerable communities.

Because whether and how to regulate various parts of the Internet supply chain (or, if you prefer, ecosystem), I will try to explain below why common carriage obligations, such as network neutrality, are different from public utility regulation (even though most utility providers are common carriers), which is different from natural monopoly regulated rate of return/tariffing/price regulation. I will briefly explore some of the arguments in favor of applying some sort of public forum doctrine or common carrier obligation to social media platforms, and — because this invariably comes up in telecom space — why platform or other infrastructure providers are not and should not be covered by Title II or the Federal Communications Commission, even if we agree they should have some sort of public forum or even public utility obligations.

Leaving aside the discussion for a minute on whether tech platforms like Google and Amazon actually might meet the definition of a monopoly under our nation’s antitrust laws (a precise and economically rigorous definition usually left to the Department of Justice, the Federal Trade Commission, or the federal (and sometimes state) court system), we seem to have forgotten about an important part of the digital ecosystem and whether it has a monopoly problem. It’s the one that’s hiding in plain sight and the evidence is in your mailbox (or inbox) every month when you get your cable bill.

Why does is matter if cable internet service providers have market power? When companies monopolize they may hurt consumers because they no longer have the incentives to compete on price or service, with the unsurprising result that even while profits for companies increase consumer satisfaction plummets and prices continue to rise.

The reason why network neutrality is so important—and why this issue remains so fiercely contested—is that it amounts to the free speech principle for the internet. This open access concept is absolutely essential, net neutrality advocates argue, because the entire US economy—and indeed society—is now deeply rooted in internet connectivity. More than that, net neutrality ensures that US democracy will continue to thrive by allowing all voices—even unpopular ones—to be heard. "Net neutrality is what democracy looks like," said Winnie Wong, a veteran political activist involved in Occupy Wall Street, People For Bernie, and the Women's March on Washington. "Without it we can't tell the story of the struggle for social justice. If the government empowers corporate monopolies to dictate how and what we can share online, we'll never be able to advance our vision of racial justice, climate action, and economic equality." With so much at stake, US faith leaders are also getting involved. "An open internet is vital for our organizing efforts here in North Carolina, and around the country," said Rev. Dr. William J. Barber, II, a leading national justice organizer and President of Repairers of the Breach.

Facing such strong public opposition to his net neutrality rollback, Federal Communications Commission Chairman Ajit Pai may punt the issue to Congress, which is actually what the nation's largest ISPs want. The broadband industry's real goal, according to many tech policy experts, is to move this battle to the Republican-led US Congress, where deep-pocketed ISPs can lobby to craft internet policy rules that favor themselves. If the ISPs are successful, look for a spirited net neutrality debate this fall featuring Rep. Marsha Blackburn (R-TN). This fight is far from over.

After months of debate, protests, and disruptions, the Federal Communications Commission’s comment period on its proposal to kill network neutrality is now over. The commission stopped accepting comments closing out with nearly 22 million total replies — setting an immense new record. The FCC’s previous comment record was just 3.7 million, set during the last net neutrality proceeding. But the process of receiving all those comments was far from smooth this time around.

The FCC’s website is fairly confusing. It’s also, apparently, susceptible to spam and other attacks, which we saw at multiple points across the past four months. All the while, the FCC’s chairman has been trying to explain that comments don’t really matter anyway, despite the commission’s requirement to act in the public interest and take public feedback. From the very beginning of the proceeding, FCC leadership laid out that it would be the quality, not the quantity, of the comments that made a difference. On the surface, that’s a reasonable argument, but it’s being set out as an excuse to ignore the overwhelming millions of comments in support of net neutrality in favor of few well-written filings by Comcast and the like. Now that the comment period has ended, the FCC will begin work on a revised version of its proposal, which it will then vote on and quite likely pass, making it official policy. The commission is supposed to factor public input into its revisions — and in fact, much of the original proposal was just a big series of open-ended questions — so it’ll probably be a little while before we see a final draft.

It’s entirely possible that the commission will go ahead with its original, bare-bones plan to simply kill net neutrality and leave everything else up to internet providers to sort out. But if the commission does decide to put in place some sort of protections, then we’ll have another debate to run through — one over exactly how effective those rules might be, and exactly how many ways companies can weasel around them.

[Commentary] Once the floodwaters recede and the reconstruction begins, when can residents see their phone service — and broadband service — return. For rural residents of Texas still dependent on traditional landlines, the answer to that may be “never.”

Why never? Back in 2011, Texas deregulated its telephone system. Of particular relevance here, Texas made it ridiculously easy for phone companies to get rid of their “carrier of last resort” (COLR) obligations — the obligation for the incumbent telephone network to provide service to everyone its service territory. As a result, phone companies in Texas do not have a state-based legal obligation to repair or replace service once it goes down. So in places where the telephone network has been damaged or destroyed by Harvey, AT&T (the primary legacy phone company in the impacted area) has no state responsibility to restore service.

[Harold Feld is Senior Vice President at Public Knowledge]

[Commentary] The controversy behind the Sinclair Broadcast Group’s $3.9 Billion cash and stock agreement to acquire 42 broadcast stations and other media assets from Tribune Media continues to swirl. If approved, the combined media entity will reach 72% of US households, a figure far beyond the 39% allowed by Congress. Adding fuel to the controversy is that far-right-leaning Sinclair Broadcasting only became compliant with the ‘39% Congressional rule’ when FCC Chairman Ajit Pai, an appointee of President Donald Trump, reinstated the UHF discount rule enabling Sinclair to count only half of its actual audience based on the premise that UHF has a weaker signal than the VHF band. The reality is that, since the move to digital TV, signal issues are a thing of the past, rendering the UHF rule obsolete. So, what’s going on here, and what does it tell us about the future of TV?

While many will try to take ideological sides on this issue, a fair debate begins with honest perspective. Below is a list calling out several false arguments and those groups exacerbated the problem.

• Anyone who tries to defend the re-instatement of the UHF Discount rule. The fact is that the rule was obsolete and brought back to cynically serve a political purpose.
• “The sky is falling!” The loudest critics claiming that Sinclair will have excessive market power, crush the competition, destroy democracy, and other hyperbole happen to be those organizations that are aggressively trying to preserve their own economic interests.
• Tribune executives. Rather than stand on principal, they remain silent about the deal because they stand to gain a lot of money should a successful merger happen. Sadly, many regular Tribune and Sinclair employees stand to lose their jobs, as overlaps and the labor-minimizing efficiencies become the norm.
• The American people. Largely oblivious to how this will impact their local news, US viewers could very well see their community, their nation, and their world through an extremist filter. It is this indifference that enables political officials to take advantage of the situation and skirt the rules to help their cause.
• FCC Chairman Ajit Pai and Commissioner Mike O’Reilly. Appointed to serve the best interests of the American people, they instead chose to rule in favor of a far-right political agenda.

Economic and political realities make it inevitable that the Sinclair-Tribune Merger will be approved. If the merger happens, short-term impacts will not be as dire as opponents predict. However, as time progresses, the lack of competition in local TV will inevitably lead to job loss, lower quality programming, and higher cost to consumers. The question that should be asked is this: Is Sinclair making a wise decision in investing in $3.9 billion in dying distribution model?

[Commentary] The Federal Trade Commission approved the merger between internet-giant Amazon and Whole Foods, the original organic grocer. You may be surprised how quickly the merger passed regulatory muster, especially given the public’s desire for strong antitrust enforcement to promote vigorous competition and equity in our economy, including our digital one. You may be wondering: Is this a case of weak enforcement? Is it proof that today’s antitrust doctrine is useless for digital-age companies? Or are critics of growing digital market concentration simply wrong to express concern? My guess is “none of the above.” Here’s why.

We hope the result in the Amazon-Whole Foods merger will neither make people give up on antitrust as an important policy tool, nor drive people to focus all their efforts on a “new antitrust” that tackles everything from quality jobs to social justice. We suggest that advocates strategically use antitrust enforcement and competition policy principles to fully protect consumers and citizens in the digital age. Finally, we strongly encourage a renewed effort to invigorate antitrust enforcement and promote new laws that create the social and economic equity we expect as a society -- and deserve.

Earlier in August, in its war against illegal robocalling campaigns the Federal Communications Commission proposed another hefty fine. That is, a fine of 82 million dollars. The target of the FCC’s wrath? Mr. Philip Roesel, who wasn’t just calling a la Adele style. Instead, Roesel is accused of both illegal robocalling in violation of the Telephone Consumer Protection Act (TCPA) and illegal spoofing, which the FCC claims violated the Truth in Caller ID Act of 2009 (TCIA). For his 21 million illegal robocalls, Roesel received merely a sternly worded citation from the FCC.

Following a recent trend, the FCC’s massive $82 million fine proposed against Roesel relied primarily on the TCIA’s prohibition against the transmission of misleading or inaccurate caller ID information, commonly referred to as spoofing, “with the intent to defraud, cause harm or wrongfully obtain anything of value.” What’s unique about this proposed fine is two-fold. First, the monetary value of the fine itself is one to write home about. Second, this fine is yet another instance where the TCIA has been used by the FCC to issue a penalty against illegal robocallers. It’s a trend that the FCC started not too long ago but is likely to continue into the future for several reasons.

[Commentary] Three days before Hurricane Harvey hit Texas, President Trump told Americans that most journalists are “bad people” who “don't like our country.” As the media covers the devastation in Houston and the surrounding area, however, even Breitbart News has begrudgingly acknowledged that the president's characterization might not be entirely fair, reporting that “journalists are helping to direct emergency crews to save stranded drivers rather than encouraging enraged mobs to riot against the police.”

In all seriousness, the response to the storm has showcased the best of elected officials, first responders, next-door neighbors and, yes, even reporters. The media's reputation is hardly the most important thing at stake in the midst of a natural disaster. But my job is to write about the press, and it is impossible not to view the work of reporters on the ground — disseminating vital information and relaying the stories of victims and heroes — against the backdrop of Trump's ceaseless campaign to undermine the media's credibility.