Upcoming policy issue

How fast is a broadband internet connection?

That question is at the heart of a controversy at the Federal Communications Commission. After a study about connection speeds in the US, the FCC decided that too few people had access to high speed internet. But that conclusion never sat right with the commission's Republicans, who argued that the agency set too high a bar in deciding what counts as broadband. Now that the GOP is in the majority at the agency, the FCC is considering new guidelines for gauging the availability and competitiveness of high speed internet. There's no specific proposal yet, but based on their past statements there's a good chance those same commissioners will vote to lower it. That could affect how much funding is available to expand broadband networks into rural or low income areas.

The issue hasn't received as much attention as the debate over net neutrality, but Roberto Gallardo , a researcher at Purdue University's Center for Regional Development, worries that lower standards would reduce the motivation of broadband providers to expand service into rural communities, which already lag behind urban areas in both speed and availability of high speed internet.

If the FCC decides that rural areas and poor neighborhoods have adequate coverage, future funding for internet infrastructure upgrades could receive short shrift, says Harold Feld, a senior vice president of the digital-rights advocacy group Public Knowledge.

The technology sector has been on edge, waiting to see if the new administration will make the reforms needed to spur innovation and startup activity, or whether it will make policy changes that end up stifling it. There are a few key areas of tech policy that are top of mind for tech CEOs and other industry participants, including four key issues: Expanding tech talent, intellectual property protection, artificial intelligence and automation, and network neutrality. Current Federal Communications Commission Chairman Ajit Pai is arguing to end internet service providers’ status as common carriers (on par with utilities), and instead “reestablish” market forces in regulating the internet. His view is that this would increase infrastructure investment and innovation among the aging broadband networks. This is not surprising, given President Trump’s view on this as a “top-down power grab,” drawing analogies to the FCC’s Fairness Doctrine.

An emerging debate about whether elected officials violate people's free speech rights by blocking them on social media is spreading across the US as groups sue or warn politicians to stop the practice.

The American Civil Liberties Union sued Gov Paul LePage (R-ME) and sent warning letters to Utah's congressional delegation. It followed recent lawsuits against the governors of Maryland and Kentucky and President Donald Trump. Politicians at all levels increasingly embrace social media to discuss government business, sometimes at the expense of traditional town halls or in-person meetings. "People turn to social media because they see their elected officials as being available there and they're hungry for opportunities to express their opinions and share feedback," said Anna Thomas, spokeswoman for the ACLU of Utah. "That includes people who disagree with public officials." Most of the officials targeted so far — all Republicans — say they are not violating free speech but policing social media pages to get rid of people who post hateful, violent, obscene or abusive messages.

As the number of online comments in the Federal Communications Commission's network neutrality proceeding soars to record highs, groups on both sides of the debate are calling on Congress to investigate mounting allegations of fake public input. The latest allegations come from the conservative-leaning National Legal and Policy Center (NLPC), which said a whopping 5.8 million pro-net neutrality comments submitted between July 17 and Aug. 4 using the same one sentence appear to be fake. The docket has been plagued for months by charges that many of the comments are duplicates, filed under fake names or submitted without the permission of the people who supposedly signed them. The growing controversy is raising questions about how the comments will be used when the FCC mulls a final order. "It's almost unimaginable how anybody thinks this could do any good," NLPC President Peter Flaherty said.

[Commentary] In a perplexing dance toward consensus, left and right have united to pour vinegar on Sinclair Broadcasting Group’s effort to add Tribune Media’s 42 television stations to the 173 it already owns. You’d think that Sinclair—which hikes on the conservative side of the news by forcing its stations to air commentaries by former Trump adviser Boris Epshteyn and other right-tilting segments (“Terror Alert Desk”)—would be cheered by its fellow media ideologues. But no. Newsmax, One America News Network and Glenn Beck’s the Blaze have joined with the lefties from Public Knowledge, Common Cause, Free Press and Media Matters for America to decry the $3.9 billion acquisition. The opposition doesn’t stop there. Such businesses as DISH Network and T-Mobile have decanted their protests, too, demanding that the Federal Communications Commission block the deal, as have broadcast trade associations.

The lefty opposition against Sinclair actually seems to be an argument against media diversity and for media homogeneity. Nowhere on television—not even on Fox-owned stations—is the conservative point of view pursued as aggressively as it is at Sinclair. If rejecting what other journalists are doing and following a unique viewpoint isn't the mark of media diversity, I don't know what is. If the left truly wished death upon Sinclair, it would urge the FCC to change ownership rules so that big broadcasters with different news “philosophies”—ABC (Disney), NBC (Comcast), and CBS—could buy more stations. But the left remains too stitched up in its 1950s thinking about consolidation to advocate that. Might Sinclair’s fight for Tribune’s stations turn out to be a fool’s bargain? For the media diversification reason chronicled above, the conventional television business model has passed its golden years. In 2015, the Bernstein research outfit predicted a “period of prolonged structural decline” for the television industry as viewers continue to defect from ad-supported outlets to on-demand services like Netflix and Hulu. Maybe instead of discouraging Sinclair from making the deal, the company’s foes and competitors should encourage them to close it.

Often sparring partners, the wireless industry and public interest advocates both came out in support of the AIRWAVES Act — but with very different hopes for where the legislation would lead.

The bill instructs the Federal Communications Commission to auction off the government-controlled spectrum of radio frequencies used for wireless communication, with the first auction to be held by next December. The bill would allow some spectrum for exclusive, or “licensed” use, as well as some for shared, or “unlicensed” use. Public interest advocates have pushed the FCC to give more access to unlicensed users by allowing them to share spectrum with private companies who get exclusive rights to certain bands. Those with licenses argue sharing can interfere with their signals. The AIRWAVES bill, which stands for Advancing Innovation and Reinvigorating Widespread Access to Viable Electromagnetic Spectrum, leaves the matter up to the FCC.

The Electronic Privacy Information Center (EPIC), a prominent privacy rights watchdog, is asking the Federal Trade Commission to investigate a new Google advertising program that ties consumers’ online behavior to their purchases in brick-and-mortar stores.

The legal complaint, to be filed with the FTC on July 31, alleges that Google is newly gaining access to a trove of highly sensitive information -- the credit and debit card purchase records of the majority of US consumers -- without revealing how they got the information or giving consumers meaningful ways to opt out. Moreover, the group claims that the search giant is relying on a secretive technical method to protect the data -- a method that should be audited by outsiders and is likely vulnerable to hacks or other data breaches. “Google is seeking to extend its dominance from the online world to the real, offline world, and the FTC really needs to look at that,” said Marc Rotenberg, the organization’s executive director. EPIC alleges that if consumers don’t know how Google gets its purchase data, then they cannot make an informed decision about which cards not to use or where not to shop if they don’t want their purchases tracked. The organization points out that purchases can reveal medical conditions, religious beliefs and other intimate information.

On July 19, 2017, the Senate Commerce Committee held a hearing to examine the nominations of Ajit Pai, Jessica Rosenworcel, and Brendan Carr for seats on the Federal Communications Commission.

On March 7, President Donald Trump nominated Pai, the FCC’s current chairman, for a second five-year term ending June 30, 2021. Rosenworcel is nominated for a term that would end June 30, 2020. Carr, the current general counsel at the FCC, has actually been nominated for two terms, one expiring June 30, 2018 and the second ending June 30, 2023. Carr served as legal adviser to then-FCC Commissioner Pai for three years before Pai was named chairman and appointed Carr as general counsel.

Committee Chairman John Thune (R-SD) characterized the hearing as both an examination of the nominees and a FCC oversight hearing, “fulfilling a commitment I’ve made to hold regular, biannual oversight hearings of the Commission.” His opinions of the nominees: “In my view, the FCC will be in very good hands when all three of these nominees are confirmed.” He noted Chairman Pai’s efforts around transparency and FCC processes, network neutrality, and robocall prevention.

Sen Bill Nelson (D-FL), the committee’s ranking member, raised issues around all three nominations. Concerning Rosenworcel, he noted that she should not have been forced to step down from the FCC at the end of 2016 when the Senate failed to reconfirm her.

Sen. Nelson identified two concerns about Brendon Carr: 1) “two consecutive terms to which the Senate is being asked to confirm you would provide you with the longest single, initial period of service of any nominee to the FCC” and 2) “it is hard to recall a similar situation where someone was nominated to serve at the commission alongside, rather than to follow, their current boss.” He stressed that it is important to have commissioners who have independent voices and “ones who will fight for consumers and the public interest.” He later asked Carr to cite an issue that he and Chairman Pai disagree on – Carr failed to answer on more than one occasion. “Going forward, I’ll make my own decisions; I’ll call it the way I see it,” Carr said. “I think my record shows that I’m not a shrinking violet.” Sen. Nelson called that response “not confidence-building.”

Finally, Sen. Nelson congratulated Chairman Pai on some recent pro-consumer actions, but said, “[M]any view these most recent consumer protection actions as mere icing on what is otherwise an unpalatable cake. A cake constructed out of actions that eliminate competitive protections, that threaten dangerous industry consolidation, that make the Internet less free and less open, and that weaken critical consumer protections for those most vulnerable.”

Net Neutrality

Network neutrality and the FCC’s 2015 decision to classify broadband internet access service providers as telecommunications providers under Title II of the Communications Act were key issues for the hearing. In his opening remarks, Chairman Thune said,

“I am pleased that Chairman Pai has sought to hit the reset button on the 2015 Title II Order, because, as I have previously said, the FCC should do what is necessary to rebalance the agency’s regulatory posture under current law. I continue to believe, however, that the best way to provide long-term protections for the Internet is for Congress to pass bipartisan legislation. Two and a half years ago I put forward legislative principles and a draft bill to begin the conversation, and I stand ready and willing today to work toward finding a lasting legislative solution that will resolve the dispute over net neutrality once and for all.”

Two senators questioned the nominees about the impact of the Title II decision on broadband investment in the US. Sen. Mike Lee (R-UT) cited stats, offered by broadband providers, that investment has gone down. He took issue with a New York Times story that said investment had gone up since the 2015 order. He said that increase included foreign investment, some of which he said was spurred by the Title II disincentive to invest in the US, and that there was evidence that US infrastructure investment had declined precipitously.

On the other side was Sen. Ed Markey (D-MA) who said that almost half of the venture capital funds, or about $25 billion, invested since 2015 was in Internet-related businesses, with broadband providers investing $87 billion, the highest rate in a decade. Sen Markey said investment and job creation are high, so there is no problem that rolling back Title II or reviewing net neutrality rules would fix.

Both senators asked Chairman Pai for his take on their respective views, but the chairman's answer was cautious given that he has an open proceeding before him and comments on his proposal to roll back Title II and review the rules are still coming in. He said that evidence of decreased investment was one of his concerns, but that the FCC was testing that theory, as well as the opposite, as part of its due diligence.

E-Rate

While Rosenworcel, Carr and Chairman Pai all generally agreed on the importance of the FCC's E-rate program -- which makes broadband services more affordable for schools and libraries -- they initially refrained from an outright promise not to cut its funding. Sen. Ed Markey (D-Mass.) had to ask Rosenworcel a second time before she explicitly said she would not reduce the funding for E-rate. Neither Pai nor Carr would make that commitment.

Broadband Deployment

The three nominees were largely unanimous on measures to expedite rural broadband like “dig once” policies, which require installation of conduits for fiber-optic cable when preparing infrastructure such as roads. The policies aim to reduce cost and limit wait times for installing fiber in different municipalities.

“I think it would be helpful for ‘dig once’ policies and similar policies to be the law of the land,” Chairman Pai told Sen. Amy Klobuchar (D-MN).

“The agency, working with local jurisdictions, should try to come up with a model code — one that includes policies like ‘dig once,’” Rosenworcel said. She added that there should be incentives built in for local communities to adopt the model.

Senators also pressed the three on the need for accurate coverage maps so that subsidies issued to companies to build out their infrastructure are actually targeted to the right places.

“I would hope to get your commitment that the commission will work to ensure that mapping data used at the FCC accurately accounts for on-the-ground mobile coverage,” said Sen. Cory Gardner (R-CO). The nominees affirmed they are committed to working toward ensuring accurate data coverage moving forward.

First Amendment

Sen. Tom Udall (D-NM) pressed all of the nominees on their commitment to the First Amendment in light of the many statements President Trump has made disparaging outlets covering his Administration. Sen. Udall pointed to a story that the White House could use AT&T’s proposed acquisition of Time Warner as a way to punish CNN for its stories and suggested the Administration might want to reward Sinclair by approving Sinclair’s purchase of Tribune television stations. Each of the nominees pledged to speak out against violence or intimidation against journalists. Chairman Pai reiterated that the White House had not contacted him about retaliating against negative news stories and said he would not do so if asked. And he promised that the FCC would not be used to punish media companies or reward others and would be troubled by any attempt to pressure it to do so.

"I have not directly had any conversations with anyone in the administration with respect to media regulatory proceedings," Chairman Pai said. "To the best of my knowledge, no one on my staff or in the FCC has indirectly had any such conversations as well."

“I have consistently stated that I believe … that First Amendment freedoms, including the freedom of the press, are critical,” Pai added. “If I were ever asked by anyone in the administration to take retaliatory action, for instance, in a media regulatory proceeding, I would not do so.”

Conclusion

If all of the hearing’s nominees are confirmed by the full Senate, the FCC would have a 3-2 Republican majority. Senators on the committee have until July 21 to submit additional questions for the nominees who will be given time to reply in writing.

Key tech industry leaders are expressing openness to having Congress step in to legislate net neutrality — putting pressure on Democrats who've been adamantly opposed to such a move. Facebook’s Mark Zuckerberg and Sheryl Sandberg said they’re willing to work with lawmakers on the issue, and Reddit’s Alexis Ohanian expressed a similar view. That flies in the face of the resistance many Democrats and activists have shown to working with Republicans on enshrining open internet protections into law. Democrats have been focused on stopping the GOP-led FCC from rolling back the current net neutrality rules, and fear their Republican colleagues want to pass weaker standards than what the FCC has already put in place.

[Commentary] A curious thing happened on a day that many internet companies and public policy groups had christened a “Day of Action” aimed at protesting the Federal Communications Commission’s plan to overturn so-called net neutrality rules. The curiosity was that several broadband companies — the very same companies that pushed to rewrite the rules that undergird net neutrality — put out statements suggesting that they, too, supported the aims of the protesters.

So why, now, are broadband companies suggesting that they support the aims of the other side? There are two possibilities: A cynic might argue that it’s just puffery, that the broadband industry is simply trying to present a friendly image to an outraged online horde. Or you might take them at their word. Here’s one idea for longtime proponents of network neutrality: Call the broadband companies’ bluff, if that’s what it is. Maybe it is time to push Congress, rather than the FCC, to take up the neutrality fight — and maybe, finally, end the debate for good. Internet giants control the world’s most important channels for information, from your Facebook feed to Google results to your phone’s home screen. They are more than capable of applying enormous pressure to members of Congress to push for what they want. And then, if nothing else, we’ll be able to see where the broadband companies really stand.