Internet/Broadband

Twenty years ago, on June 26, 1996, the US Supreme Court unanimously decided Reno v. American Civil Liberties Union, which found the communications decency provisions of the Telecommunications Act of 1996 to be unconstitutional. Applying strict scrutiny under the First Amendment, the Supreme Court concluded that unlike broadcasting – where the Federal Communications Commission’s indecency regulation has been upheld due to the unique characteristics of that medium – no content regulation with a justification of online child protection would be allowed. This means that there continues to be no content restrictions on what American internet users can send or receive.

Viewed in contemporary context, two lessons from Reno v. ACLU endure. First, as a constitutional law matter, there is a firewall for US government restrictions on any non-obscene online content. In turn, this virtually unfettered freedom has fueled the pervasiveness of the internet in our lives. Remember, Facebook and the world of online apps – which now exceed websites as the go-to sources online – did not even exist then. Mark Zuckerberg was only 13 years old when the court decision was released, and other app content pioneers such as Snapchat’s Evan Spiegel were still in elementary school.

This leads to the case’s second legacy, which is more implicit but also of great importance. Given the continuing inability to predict the speed and scale of internet development or changing consumer preferences, there seems to be a subtext in that government may find it difficult to develop broad prescriptive long-lasting approaches to internet regulation. The FCC favored this ex ante approach when crafting the Open Internet order under the Obama Administration. Under new FCC Chairman Ajit Pai, the agency seems to favor a revision that limits government oversight to the Federal Trade Commission’s traditional enforcement authority. As the FCC compiles its rulemaking record to justify this significant change in approach, it would not be surprising to see the Reno v. ACLU decision used to support a return of this light-touch regulatory framework.

[Commentary] Sharing economy companies have had no shortage of regulatory battles, but companies such as Uber, Airbnb, and TaskRabbit are innovating and improving regulation by incorporating the very trust created through their platforms. Arun Sundararajan, author of “The Sharing Economy: The End of Employment and the Rise of Crowd-Based Capitalism” (MIT Press, 2016), observes that regulation need not originate with the government. He writes that it can take a myriad of forms while still being rational, ethical, and participatory. He describes three models of regulation used by sharing platforms: peer-to-peer, self-regulatory, and data-driven delegation.

The way that sharing economy platforms are innovating regulation with digital trust systems exposes the effort by digital elites to impose Title II utility regulation from 1934 on the internet as backward and out of date. While sharing economy entrepreneurs are creating a decentralized, innovative, and distributed world and are finding and transforming passive assets into productive ones, Title II advocates want to centralize and aggregate power beneath a single government agency that we the people have never authorized to regulate broadband. We should resist this like we would any faction that wants to usurp power. Meanwhile, we should encourage the Federal Communications Commission and Internet service providers to experiment with these innovative forms of regulation.

[Roslyn Layton is a PhD Fellow at the Center for Communication, Media, and Information Technologies (CMI) at Aalborg University in Copenhagen, Denmark. She is also a member of the Trump FCC Transition Team.]

The United States is ahead of the global curve when it comes to delivering “broadband for all.” But we too face challenges. First, a quick snapshot: 93% of Americans have access to fixed broadband with a speed of at least 25 Mbps down. An estimated 73% of Americans subscribe to fixed broadband at home. And approximately 80% of Americans use smartphones. When you dig deeper into those numbers, however, you begin to see some real divides. In urban areas, 98% of Americans have access to high-speed fixed service. In rural areas, it’s only 72%. 93% of Americans earning more than $75,000 have home broadband service, compared to only 53% of those making less than $30,000. Too many identify with the lines in One of Us, in which ABBA sang: “One of us is lonely / One of us is only / Waiting for a call.”

Every American who wants to participate in our digital economy should be able to do so. Access to online opportunity shouldn’t depend on who you are or where you’re from. I’m pleased to say that since my first days as Chairman, the Federal Communications Commission has taken significant actions to make that a reality.

The week of June 19 was Technology Week at the White House, and the Trump Administration held events focusing on modernizing government technology and stimulating the technology sector.

That Monday, June 19, the White House invited major tech leaders and university presidents for the inaugural summit of the American Technology Council. Hosted by the White House's Office of American Innovation, the event consisted of multiple breakout sessions to discuss ways to modernize the government by retiring out-of-date legacy systems and increasing the use of shared services. On Tuesday, United States Secretary of the Treasury Steven Mnuchin and Director of the National Economic Council Gary Cohn held a listening session with technology leaders to discuss tax reform in the United States and the implications of a new tax plan on the technology sector. On Wednesday, President Trump traveled to Cedar Rapids, Iowa. He toured Kirkwood Community College and spoke about agricultural innovation and empowering the American farmer. On Thursday, the White House hosted the American Leadership in Emerging Technology Event, where American tech industry leaders demonstrated technologies like advanced drones and 5G wireless networks to the President. On Friday, President Trump signed the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017. After a successful week of addressing American innovation and meeting with leaders of the technology sector, next week the Trump Administration will turn its focus to energy.

Twenty years ago, on June 26, 1997, the Supreme Court issued a landmark decision and unanimously overturned congressional legislation that made it unlawful to transmit "indecent" material on the Internet if that content could be viewed by minors. The justices ruled that the same censorship standards being applied to broadcast radio and television could not be applied to the Internet.

"The record demonstrates that the growth of the Internet has been and continues to be phenomenal," the high court concluded. "As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that government regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it." The legal wrangling over the Communications Decency Act happened when the commercial Internet was primitive compared to today. The ACLU says it didn't even have a website when the CDA was signed into law in 1996. And the ACLU's lawyers on the case had never even used the Internet, either.

A planned municipal broadband sale of BVU Optinet is in jeopardy, thanks to a disagreement regarding wireless tower assets. One of the early pioneers in municipal broadband, Bristol (VA) based BVU Optinet was put up for sale back in February 2016 for $50 million to Sunset Digital Communications. That deal may now be in trouble.

A government oversight board, the Virginia Coalfield Coalition (VCC) approved the sale of BVU Optinet to Sunset Digital, but with conditions that Sunset now objects to. The board wants operational control of the wireless tower network currently operated by BVU Optinet transferred to a different service provider, Scott County Telephone Cooperative. BVU operates 22 wireless towers throughout the region, and is valued at $14 million. There is a difference of opinion between the VCC and Sunset as to whether the tower network was a part of the original $50 million deal. Sunset Digital is calling foul, and says that condition could kill the deal. “Those are conditions that we [previously] said were not acceptable,” said Jeff Mitchell, an attorney for Sunset Digital.

Expanding high-speed internet access to rural areas has been one of the few issues that’s drawn bipartisan support in a sharply divided Congress. And while nothing’s assured, backing by Federal Communications Commission Chairman Ajit Pai may help push those congressional efforts across the finish line.

Chairman Pai recently talked up the Senates Gigabit Opportunity Act (S 1013), that would effectively legislate his proposal for spurring broadband investment in remote areas, where internet access is available through 1990s-era dial-up service. The legislation — introduced May 3 by Sen Shelley Moore Capito (R-WV) and co-sponsored by Sen Chris Coons (D-DE) — would provide tax benefits for investments in “gigabit opportunity zones,” primarily in low-income and rural communities. On the other side of the Capitol, Rep David Loebsack (D-IA) introduced related legislation, the Rural Wireless Access Act (HR 1546), which would require the FCC “to establish a consistent methodology for its collection of coverage data about the available speed tiers and performance characteristics of commercial mobile and data service” for use in deciding on the eligibility of areas that can receive funds from the FCC-administered Universal Service Program or similar initiatives.

Attendance at the June 22 House Small Business Committee's Subcommittee on Agriculture, Energy & Trade hearing on improving broadband deployment in rural America was small, but it was yet another dive into a crowded pool as Washington drilled down on the issue, including on Capitol Hill, at the Federal Communications Commission and even in Iowa, where the President talked up rural broadband as well.

The chairman of the subcommittee, Rep Rod Blum (R-IA), is from a rural district and also owns a small technology company that relies on internet access, so he cautioned the audience not to read the light attendance as lack of interest, only that there was a lot going on at the Hill. Chairman Blum said "the nation's small telecom providers are the ones that traditionally supply the bulk of broadband services to the most rural parts of America, and that is no easy task."

Students increasingly must gain 21st century technology skills to succeed in life after high school. Despite the technological shift driven by rapid innovations, approximately 5 million US households with school-age children still do not have access to high-speed Internet at home. The paper gives school leaders guidance to improve digital access in their communities.

In addition, CoSN puts forth recommendations for districts to build and strengthen their networks and identifies funding opportunities for school systems to improve digital equity. These include leveraging capital expenditures, operational expenditures, federal and state funds, bonds, levies, grants, and in-kind and school-to-business partnerships to address digital equity. “School-to-Home” details the main barriers to extending broadband to homes nationwide. These include assessing size of the connectivity problem and addressing the need for adequate Internet access at home and in the community, particularly for students from low-income homes. Despite cost and lack of fiber or high-speed Internet availability, some districts are improving Internet access by promoting public Wi-Fi access, providing Internet in school parking lots and athletic fields, and establishing portable loaner Wi-Fi hotspots for student use to take home to do school work.

The Citizens Broadband Radio Service (CBRS) has not even been born yet, but already major industry players want to change its basic character. CBRS, as its name implies, was conceived and approved by the Federal Communications Commission a couple of years ago as a broadband service for locally-focused businesses. The regulatory paradigm included both a large swathe of generally authorized access (also termed “licensed by rule”) channels that would be made available opportunistically to any entity and licensed channels made available on a census-tract basis for generally non-renewable three year terms. This generated quite a bit of opposition from larger carriers who insisted that the small license areas and short, non-renewable terms would make the band unsuitable for significant investment.

Yet the FCC stuck to its vision for this “citizen”-oriented service and adopted rules which are now effective, though users cannot be up and operating until the spectrum managers begin administering access to the spectrum.