Benton Foundation

[Commentary] Word on the street is that the Trump Federal Communications Commission transition team has submitted its report to Administration higher-ups and that it has been largely or wholly accepted. What we know of its recommendations, which have not and may never be released as such, makes for awful news. It sounds like an always-on green light for more mergers and acquisitions than ever and for such a deregulatory approach that our media and telecommunications conglomerates will be encouraged to build out monopoly markets across the land. That means one-sixth of our economy will lack meaningful oversight to protect the common good, a.k.a. the public interest. Keep in mind that the transition report is mostly the product of inside-the-Beltway think tank “experts” working at the conservative, corporate-sponsored American Enterprise Institute (AEI). Likely it has also received the blessing of the even more conservative Heritage Foundation, whose leadership staunchly opposes almost everything promoting the common good. How strange that these inside, corporate-oriented elites are setting policy for all those voters in rural America and the Rust Belt who made the difference in Donald Trump’s Electoral College victory. Does anyone reading this really believe that those voters want higher cable bills and monopoly set-top boxes (averaging over $230 annually) even though the FCC has the power to open the market for much more affordable alternatives? Do all those good voters, hoping for something that represents real Populism, not Wall Street’s version, really want higher phone bills, more industry consolidation, second-rate broadband service, and an internet controlled by a handful of gatekeepers? I think not.

With President Barack Obama’s second term ending on January 20, a number of Administration officials are delivering final addresses capsulizing the advances their departments or agencies led over the last eight years. Last week, Federal Communications Commission Chairman Tom Wheeler offered a two-part farewell highlighting the challenges we face dealing with technology-driven upheaval and cautioning policymakers not to reverse policies that ensure that broadband Internet access service is ubiquitous, competitive, affordable, open, and fair.

[Commentary] There are two ways to approach community broadband networks and “owning the business of broadband”: the problem-solving approach and the creation orientation approach. In creation orientation, you go about the process of creating something that didn’t before exist. This orientation is a different way of thinking about the task at hand, and leads to more effective broadband projects. Hybrid wireless/wired infrastructure facilitates the creation orientation.
[Settles is a broadband business planner who helps communities get more from their broadband investment. He recently wrote Fiber & Wireless – Stronger Together for Community Broadband.]

As we await the inauguration of President-elect Donald Trump on January 20, the 115th Congress is back at work. In a week that contained a flurry of nomination hearings, a late-night vote-a-rama, and an interesting press conference, the key Congressional communications policy committees announced their membership. Below we take a look at the new committee rosters -- as well as what to expect for the new Federal Communications Commission.

Republican leadership criticized while some Democratic lawmakers were praising the Federal Communications Commission's report finding that some zero-rating plans may run afoul of network neutrality rules. Zero-rating offerings exempt some services, including video streaming services, from counting toward a user's broadband data plan. In some cases, the service pays the ISP to exempt their content.

House Commerce Committee Chairman Greg Walden (R-OR) and Communications and Technology Subcommittee Chairman Marsha Blackburn (R-TN) said, "We are disappointed to see the FCC moving controversial items like the recent staff report on zero-rating in the waning hours of Chairman Wheeler’s tenure. Chairman Wheeler’s decision to move forward with this report is a rare trifecta of anti-consumer policy, inappropriate use of delegated authority, and directly contradicting a request of Congress. Ultimately, if taken at face-value the findings in the report threaten to reduce consumer choice and drive up monthly bills. Our regulatory agencies should aim to foster innovation and competitive service offerings that benefit consumers, not squelch innovative business plans in their infancy. We remain hopeful that the agency will refrain from taking action on controversial items in the remaining days of this administration, and we’re looking forward to working with the next commission to encourage robust technological innovation for consumers across the country.”

Sen Ed Markey (D-MA) had led calls for tough action on "harmful zero-rating offerings" they thought ran afoul of the rules and led the applause at the findings. “In response to our inquiry, the FCC has issued clear guidelines on how to protect consumers from harmful zero-rating plans that violate the core tenants of net neutrality,” Sen Markey said. “These guiding principles will help the FCC, industry, and the public evaluate zero-rating offerings and identify plans that distort competition, stifle innovation, and hamper user choice and free speech. I will continue to work with my colleagues to encourage the Commission to enforce these guidelines and ensure that the internet remains a permission-less environment where anyone with an idea or voice can participate.”

Sen Al Franken (D-MN), a big network neutrality fan and among those who joined in a letter to the FCC last November asking for the review, did share the FCC's concerns. "A free and open internet has been a crucial engine for innovation and economic growth," he said. "That's why I'm pleased to see that the FCC has heeded our call and released a framework for evaluating zero-rating plans, which can often harm competitors and consumers. This report evaluating whether zero rating plans violate net neutrality will help make sure the internet remains the free and open platform that it's always been. Keeping the internet open is critical to our democracy.”

Sens. Ron Wyden (D-OR) and Richard Blumenthal (D-CT), were also signatories to the letter and added their applause.

“Despite clever branding gimmicks, so called ‘free data’ or zero-rating plans like those offered by AT&T and Verizon are a scheme to manipulate consumers and transfer money from their pockets to a company’s bottom line,” said Wyden. “This report lays the framework for ensuring zero-rating plans don’t betray net neutrality and is a step in the right direction towards maintaining a free and open internet.”

“I commend the Commission for undertaking this careful and thorough report on how zero-rating offerings may negatively affect consumers and competition,” added Blumenthal. “As wireless carriers look for creative ways to differentiate themselves, it would serve them well to take heed of this report’s findings and address any red flags in their own offerings. This report confirms my concerns that some zero-rating offerings not only subvert the spirit of net neutrality, but also unfairly distort competition, disadvantage consumers, and decrease choice.”

“Consumers have repeatedly expressed their support for free data. The so-called ‘guidance’ issued today by the staff of the Wireless Bureau is not about consumers," said Mobile Future interim chair Diane Smith. "It is an effort to pick winners and losers based on the Washington-knows-best mentality. Rather than tipping the scales toward preferred business models, the FCC should let consumers decide for themselves which models, and free data, they prefer.”

"Let’s hope the next FCC recognizes the benefit of genuinely new business models bringing additional competition in video distribution," said ITIF policy analyst Doug Brake. "We should not discourage models that by any measure increase the options to access Internet services, functionally increase video competition, and lower expenses for consumers."

Adonis Hoffman, chairman of Business in the Public Interest and a former top FCC official, said the FCC advisory was confusing. "If the open internet order is all about competition, and consumers like the competitive data offerings by the two leading providers, what is the problem? While the original intent of the open internet rule may have been noble, its enforcement in this case is anything but. Sadly, this may become the Chairman's Dunkirk."

[Commentary] Cell-site simulators, often (if not entirely accurately) referred to as “Stingrays,” pose important legal and policy issues for a democratic society, especially in light of evidence that these devices have disproportionately been used to target communities of color. There is bipartisan concern about the serious Fourth Amendment questions surrounding their use, as exemplified by a staff report recently issued on behalf of the Republican Chair and Democratic Ranking member of the House Committee on Oversight and Government Reform. This post deals with a different question: whether use of CS simulators by state and local authorities also violates the Communications Act.
[Andrew Jay Schwartzman is the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation]

[Commentary] On December 22, the Federal Communications Commission gave a satellite operator named Globalstar a Christmas present of sorts, along with a lump of coal. The events leading up to this action present a case study that offers insights into the physical, economic, legal, and political forces that shape telecommunications policy. Globalstar’s inability to effectuate its new venture is an object lesson for incumbent and would-be “low Earth orbit” (LEO) operators.
[Andrew Jay Schwartzman is the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation]

[Commentary] Partnerships, aggregation, and coordination in securing broadband services are valuable tools for community anchor institutions (CAIs). Aggregating buying power on a regional or statewide basis is a tested best practice that can enable anchor institutions to achieve lower per unit pricing, higher bandwidth, and improved service quality. Policymakers should encourage anchors to consider joint procurement and coordination with entities representing other anchor sectors in their state or region. Aggregated procurement also encourages broadband providers to collaborate and bid with other providers—which could flatten pricing and reduce geographical disparities.
[Joanne Hovis is president of CTC Technology & Energy]

Although there are many articles and blog posts discussing likely policy changes in the media and telecommunications space, it is far too early to know exactly when and what will happen at the Federal Communications Commission under the forthcoming Trump Administration. However, it is not too soon to identify the legal mechanisms available to Congress and the FCC to unwind many of the Obama era accomplishments. In light of the Democrats’ loss of the White House and failure to take control of the Senate, public interest advocates will have a very hard time protecting these and earlier regulatory requirements given the breadth of the power conferred by these statutes. From the moment he took office in late 2013, outgoing FCC Chairman Tom Wheeler operated from the premise that his tenure might not extend beyond January 2017. Even though he undertook an ambitious agenda as soon as he arrived, a number of his major initiatives were not completed until the latter part of 2016. As a practical matter, it is reasonably easy for Congressional Republicans and the incoming Republican majority at the FCC to derail at least some of these recently adopted regulations. Here’s how.

FCC Commissioner Mignon Clyburn said, “Whether you agreed with him or not, Tom Wheeler, my chairman, has made a bold impact on this agency and this ecosystem. Maybe we should not really be surprised: his years of experience with industry, his ability to make tough decisions, and his willingness to fiercely stand up for and protect his client. Fortunately for all of us, since late fall of 2013, the American consumer has been the direct beneficiary of his quest for competition, competition, competition and consumer protection. Personally, Tom Wheeler, you have helped to make me a better Commissioner. You have both challenged and assisted me to advance key priorities that will continue to make a difference in the lives of millions.”

”Making change in Washington is not for the faint of heart,” said FCC Commissioner Jessica Rosenworcel, “but the Federal Communications Commission accomplished much under Chairman Tom Wheeler’s watch. It’s been a privilege to work with the Chairman and I’d like to thank him for his service to the Commission and to the country. He brought a long history of experience in the communications sector to the job and proved himself to be a serious advocate for his positions and for consumers. His tenure at the agency will not soon be forgotten and I wish him the best in the future.”

“Like his beloved Ohio State Buckeyes, Chairman Wheeler brought passion and tenacity to the playing field each and every day. Despite our differences in many areas of communications policy, I commend him for his years of public service. It has been a privilege to serve alongside him, and I wish him well in his future endeavors,” said Commissioner Ajit Pai.

FCC Commissioner Mike O’Rielly said, “I truly thank Chairman Wheeler for his public service to our country. While we may not have always agreed on the substance or procedures of Commission work, Tom is passionate about his views and committed to solving communications problems, including our work together on Rate of Return reform. More importantly, I enjoyed the chance to get to know him on a personal level and chat on non-work matters, especially about our families. I wish Tom great success in any future endeavors he pursues.”

House Commerce Committee Chairman-elect Rep. Greg Walden (R-OR) said, “Few FCC Chairs have served during a more dynamic and controversial time. While Tom and I have not agreed on every issue, we’ve shared a passion for expanding access to broadband communications to underserved areas of America. I wish him every success in the future.”

“Few leaders at the FCC have known how better to expand horizons by promoting competition in the telecommunications marketplace than Tom Wheeler," said Sen. Ed Markey (D-MA), who pushed for set-top box reform, strong broadband privacy rules, and Title II reclassficiation, all of which Wheeler also supported. "From preparing students for the global economy through the modernized E-Rate program, to promoting net neutrality as the governing principle of the internet, to ensuring online privacy protections, Tom Wheeler has led the FCC and our nation through an important pro-consumer, pro-competition era. Tom Wheeler is a telecommunications titan, and I thank him for his tremendous service to the American people.”

“During my tenure in Congress, I have had the privilege to work with seven Chairmen and two Acting Chairs of the FCC. Tom Wheeler's leadership stands the tallest with an historic record of reshaping the telecommunications and technology landscape, making the U.S. a leader across all sectors," said Rep. Anna Eshoo (D-CA), ranking member of the House Communications Subcommittee. "He has strengthened the public safety network; he made networks open, fast and fair for all Americans; assured low income Americans that they, too, would share in our country's technological age; and advanced spectrum to keep our economy growing for decades to come."

Free Press President and CEO Craig Aaron said, “When Tom Wheeler was named to head the FCC, we voiced serious reservations about how a former industry lobbyist could do the job. But he proved us wrong. We haven’t agreed with him on every decision, but time and again Wheeler showed a willingness to stand up to industry pressure, listen to voices outside the Beltway and — perhaps most importantly — to change his mind. His legacy will be as one of the most effective chairs ever to hold the post — judged rightfully not by the number of unanimous votes but by actual accomplishments. Wheeler didn’t come into this job as a Net Neutrality champion, but he will be remembered first and foremost for his leadership on that crucial issue and for the standing ovations he earned on the day of the FCC’s historic vote.”

Senate Commerce Committee Chairman John Thune (R-SD) and Sen Roger Wicker (R-MS), chairman of the Communications Subcommittee, provided a cordial send-off, but mostly for leaving. “I wish Chairman Wheeler well in his future endeavors,” said Thune. “No one who worked with him can doubt his tenacity and passion for telecommunications policy. His public departure announcement follows longstanding precedent and helps the incoming administration transition the FCC to reflect the outcome of the November election.” “I commend Chairman Wheeler for his service and for following the tradition of stepping down in advance of a new administration,” added Wicker. “I look forward to working with President-elect Trump to appoint and confirm well-qualified nominees to the Commission who are committed to acting within the statutes and avoiding regulatory overreach.”

"Chairman Wheeler connected thousands of anchor institutions, fought to close the digital divide, and ushered the FCC into a future-ready era," said John Windhausen, director of the Schools, Health & Libraries Coalition. "Most notably, he oversaw the modernization of the E-rate program that promoted greater fiber investment to serve schools and libraries. Because of Chairman Wheeler’s efforts, students can now take part in digital learning, library patrons can take online courses, and the unemployed can apply for jobs.

“Chairman Wheeler has done more to promote competition and consumer protection than any Chairman in recent memory,” said Public Knowledge President and CEO Gene Kimmelman. “Consumers owe him an enormous debt of gratitude for his steadfast commitment to making our digital future fair and accessible for all. Though Americans are losing a great consumer protection champion, we will all benefit from his legacy and the policies he’s leaving behind.”

“When President Obama appointed Tom Wheeler Chairman, many people voiced open suspicion of a man who had led two major industry trade associations. But rather than be the lapdog of industry some feared (or hoped for), Tom Wheeler proved himself to be the most ferocious watchdog for consumers and competition in nearly two decades. In the days ahead, the public must be prepared to fight vigorously to keep the consumer protections he created,” said Harold Feld, Senior Vice President, Public Knowledge.

"Tom Wheeler built a truly historic record of achievement as Chairman of the FCC," said Mike Copps, special advisor to Common Cause and himself a former Democratic FCC chair. "At the pinnacle of his achievement is net neutrality. All those who understand the critical importance of this will best honor Tom now by joining together to preserve what his FCC did from the onslaughts of those who would reverse the rules, reverse the power of an open internet, and reverse history itself."

"Chairman Wheeler advanced key policies, like Net Neutrality, strengthening the Federal Communications Commission’s role as a watchdog for consumers and content creators, and ensuring that Latinos and other people of color have equal opportunity to be heard on the internet," said Alex Nogales, president of the National Hispanic Media Coalition.

Jonathan Schwantes, senior telecom policy counsel for Consumers Union, praised Wheeler’s tenure, saying “Chairman Wheeler put consumers first in developing groundbreaking new policies and took the Commission’s mission of serving the public’s interest to heart. From ensuring an open internet for all, to giving consumers more control over how their broadband provider uses their personal information and spearheading the push to tackle robocalls, the FCC took significant actions to protect consumers under his direction. Chairman Wheeler’s leadership will be sorely missed but he leaves behind an impressive legacy that will continue to benefit consumers for years to come.”

Sarah Morris, Director of Open Internet Policy for New America’s Open Technology Institute said, “Chairman Wheeler left an indelible mark on our country’s communications policy. Under his leadership, and with the support of Commissioners Clyburn and Rosenworcel, the FCC worked tirelessly to protect consumer interests. The FCC enacted historic rules to preserve an open internet and protect consumer privacy, thwarted the harmful Comcast merger with Time Warner Cable, and reformed the Commission’s important E-rate and Lifeline programs—all within a framework grounded in improving competition and innovation and promoting a vision of the internet as an open platform for all voices. We applaud Chairman Wheeler for these and numerous other accomplishments, and we are grateful for the thoughtfulness with which he approached his policymaking.”

On the day that FCC Chairman Tom Wheeler announced his resignation from the Commission, the Coalition for Local Internet Choice thanks him for his unwavering support for local Internet choice and for his efforts to remove barriers that prevent rural, urban, and tribal communities from enabling new broadband deployment. As FCC Chairman, Mr. Wheeler gave voice and support to the principle that all communities deserve access to modern broadband infrastructure, which is essential for 21st Century economic competitiveness, educational opportunity, democratic discourse, and quality of life. Mr. Wheeler was a hero in the FCC’s effort to enable localities in the states of North Carolina and Tennessee to serve their rural neighbors with state-of-the-art fiber networks. We honor him for his years of leadership on behalf of the principle that America is built on great local communities and that local broadband initiatives have an essential role to play in removing our country’s urban-rural broadband divide.

“Tom Wheeler did more to promote a productive and competitive wireless future for America than any previous chairman. He insisted that network neutrality should apply equally to mobile networks, he rejected mergers that would have reduced mobile market competition, and he opened huge new sources of wireless spectrum by pioneering the sharing of grossly underutilized frequency bands,” said Michael Calabrese, Director of New America’s Wireless Future Project.

"Strong willed and strong armed, this Chairman did it his way, and while LPTV suffered greatly in the process," said Mike Gravino, director of the LPTV Rights Coalition. "[W]hat can you say about someone who has given these last few years to public service? For our industry, it means maybe we'll finally get to meet one-on-one with the new Chairman, as this Chairman never granted us an audience of our own to discuss our issues, concerns, and needs."

USTelecom President & CEO Walter B. McCormick said, “We thank Chairman Wheeler for his service and express our gratitude for his commitment to expanding next-generation broadband access to the American people. Under his leadership, the FCC made historic reforms to Universal Service, focused on the importance of technology transitions, modernized the way the commission looks at the voice market by eliminating archaic regulations, and committed the agency to a public-private partnership approach to cybersecurity that will serve as a model for years to come. We wish him all the best in his future endeavors.”

NCTA CEO and former FCC chairman Michael Powell said, “Chairman Wheeler has presided over the Commission during a period of significant change and exciting innovation in the communications marketplace. Chairman Wheeler’s mantra from the beginning of his tenure has been ‘competition, competition, competition’ and he should be proud that American consumers are enjoying the benefits of today’s vibrant and highly competitive video and broadband sectors.”

The NTCA–The Rural Broadband Association said Wheeler “repeatedly demonstrated great resolve in taking action on some very difficult issues, and we appreciate the agency’s willingness under his leadership to engage with interested and affected stakeholders throughout these debates.”

“It would be disingenuous to suggest that we did not have significant differences with the direction the FCC took under Chairman Wheeler,” said Bob Quinn, AT&T Senior Executive Vice President of External and Legislative Affairs. “ However, Chairman Wheeler has been a respected leader in the video and wireless industries for over 30 years with many accomplishments. Following that illustrious career, and when most people would have hung up their spikes, he chose to enter public service where he was a dedicated and tireless advocate. We wish him and Carol happiness and health in the future.”

“Verizon thanks Chairman Wheeler for his dedication and hard work at the FCC. During his chairmanship we did not always agree on all issues, but we found that his door was always open and he sought to balance the concerns brought forth from all sides," said Verizon EVP Craig Silliman. "We’re also grateful for his leadership in helping unleash spectrum for 5G, a historic decision that will help preserve the U.S. global leadership position in wireless. We wish Mr. Wheeler well as he moves onto new endeavors.”

“We thank Chairman Tom Wheeler for his service and dedication to the American people," said INCOMPAS CEO Chip Pickering. "A fierce competitor, Wheeler always liked a good fight, especially when he had the American consumer in his corner.”

“From the outset of his time at the Commission, Chairman Wheeler has recognized the vital and expanding role mobile broadband networks play in the economic and social life of our communities and families," said Mobile Future chairman Jonathan Spalter. "I am grateful for his hard work to ensure broadband innovators and consumers alike have access to the spectrum resources we need to help sustain our mobile future. Chairman Wheeler has our thanks for his service to our country, and I wish him all the very best as he begins his next chapter.”

NAB President and CEO Gordon Smith said, “Chairman Wheeler has been a tenacious fighter on telecommunications issues during a period of remarkable change in the media landscape. We wish him well in whatever the future may hold.”
Statement (Commissioner Clyburn)

"ACA appreciates that Chairman Wheeler was an able steward of the nation's communications laws and was someone who always gave independent cable the opportunity to be heard and receive full and fair consideration," said ACA President Matt Polka. "The decision not to fully address the broken retransmission consent regime was a disappointment," he said. "But under Chairman Wheeler's direction, the FCC did take some key steps to curb TV stations' abuse of their regulatory advantages over smaller multichannel video programming distributors (MVPDs), including, but not limited to, the FCC's landmark decision in March, 2014 to ban retransmission consent collusion among non-commonly owned TV stations serving in the same local market. Moreover, in numerous Orders, in response to ACA's requests, the FCC provided small cable, broadband and phone providers with exemptions, waivers, extended compliance deadlines and granted other special considerations to ease their regulatory burdens."

Gary Shapiro, president of the Consumer Technology Association, pointed out that Wheeler would be making one of his final appearances at the 2017 CES show Jan. 5, and added his thanks to Democratic Commissioner Jessica Rosenworcel, who will also be exiting, in her case in early January. "We thank Chairman Wheeler and Commissioner Rosenworcel for their service, particularly their leadership in implementing the world's first TV broadcast spectrum voluntary incentive auction," he said. "As our world becomes more connected and devices become powerful hubs for our connected lives - from wearable technology to smart home devices to self-driving cars - we need additional licensed and unlicensed spectrum now more than ever. Chairman Wheeler and Commissioner Rosenworcel have been key drivers of freeing up the spectrum we need, and consumers will benefit from their legacy."

David Williams, president of the Taxpayers Protection Alliance, was pleased at the announcement. “Taxpayers and consumers can finally breathe a sigh of relief that Wheeler is stepping down," Williams said. "Wheeler took a benign federal agency and turned into one of the most intrusive and regulatory driven agencies in history. From promulgating nonsensical net neutrality regulations that would have stymied the growth of the internet or the ill-fated Set-Top Box plan to opposing free data for consumers, Wheeler was out of touch with consumers and reality.”

"Chairman Wheeler has been an incredible champion for America's children over the past years," said Common Sense Media CEO James Steyer. "He's led the way on major progress for kids in the classroom and at home through his extraordinary leadership on E-Rate 2.0 and the Lifeline program. He has also been a great advocate for all consumers and moderate and low income families. His legacy of work on behalf of kids stands for itself and it is critical for the next Administration to take a clear-eyed view at what chairman Wheeler accomplished for America's children and protect those important gains moving forward."