Does SCOTUS EPA Case Impact Net Neutrality? Here’s Why I Say No.

For most people, the Supreme Court’s decision in West Virginia v. Environmental Protection Agency was about environmental policy and what the Environmental Protection Agency can still do to cut carbon emissions. For a smaller subset, mostly lawyers, W. VA v. EPA was an important (but confusing) administrative law case what we will spend a bunch of time arguing about how to apply to agencies generally. And for the tiniest of all possible subsets, meaning me and a handful of other telecom lawyers, it was about . . . net neutrality. Because just about everything in telecom still revolves around net neutrality. Srsly. If we were living in the Don’t Look Up universe and a giant asteroid were about to smash into the earth, I’d be getting questions about folks whether I thought the asteroid supported classifying broadband as Title II.

 

The other basic truism about these events is that they are rather like ink blots, where what you see depends a lot on what you already think. So those who hate Title II are convinced that this spells doom for any FCC reclassification efforts, whereas those on the pro-Title II side think this doesn’t really change anything. I’m as much a human being subject to this bias as anyone else. So I can only explain why I think W.VA. v. EPA hasn’t changed anything and let y’all decide if I’m right. It all depends on what the Court means by a “major question” that requires “clear proof” that Congress intended to vest the agency with the power to do the thing.

 

Annoyingly, the Supreme Court has not been particularly clear on this concept. The anti-Title II folks point to Kavanaugh’s dissent from the D.C. Circuit’s refusal to rehear USTA v. FCC (the case that upheld the FCC’s 2015 Title II/Net Neutrality Order, which rested in part of what Kavanaugh called “the major rule” doctrine (now officially called “major question” doctrine) and the fact that the Roberts decision in W.VA v. EPA cited the Kavanaugh dissent (although not for anything having to actually do with net neutrality.) On the other hand, as I explain below, the actual language describing the “major question doctrine” if you read the case runs against the description of the “major rules doctrine” as described by Kavanaugh in USTA. More importantly, the Court’s reliance on Gonzales v. Oregon – which cites the FCC’s authority over broadband in Brand X approvingly as an example of where Congressional delegation is “clear” – seems to me much more important than a passing citation to the Kavanaugh dissent.

 

Additionally, while we always knew where Kavanaugh would be if this ever reaches SCOTUS again, there is plenty of reason to believe he lacks 4 additional votes for his position. Notably, Thomas (and to some degree it seems Alito and Gorsuch) have all fallen in love with common carrier again. True, that is in the context of social media, but it would be a level of weirdness to find that judges by common law can determine Facebook is a common carrier but broadband providers can’t be common carriers without Congress expressly saying so. Also, Thomas actually wrote the Brand X opinion, which found that it was totally cool for the FCC to classify DSL as Title II even if cable broadband were classified as Title I, so it’s hard to see how this kind of agency discretion is compatible with “major question doctrine.”

 

I break all this down in detail below . . .

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No Sohn Means No Broadband Map, and No Broadband Map Means No BEAD Money.

I would never have imagined that we could get past Memorial Day without Gigi Sohn’s confirmation as the 5th FCC Commissioner/3rd Democrat. But Republicans who think there is no downside to dragging Sohn’s confirmation out interminably to block Title II — especially those who voted in favor of the Infrastructure Investment and Jobs Act of 2021 (IIJA) and are looking for that broadband money to begin flowing to their states — may wish to think again. Why? Because without a vote on the broadband map of 2022, the NTIA cannot distribute the bulk of the Broadband Equity Access and Deployment (BEAD) money (or the Middle Mile money, FWIW). And while it is entirely possible that the FCC might issue the map on a 4-0 vote without controversy, I would not want to bet my state’s broadband on it given that I can’t find a single broadband report vote in the last decade that wasn’t a 3-2 party line vote. (Technically, the 2011 vote was 3-1 with Commissioner Baker not participating. But you get the idea. This does not traditionally go smoothly, and is a lot less likely to go smoothly with $45 billion on the line.)

 

Why yes, the FCC broadband map does need a majority vote of the full Commission to get issued. Nor does the relevant provision of the IIJA (Sec. 60103) require the FCC to publish the new maps by any specific deadline. It simply requires the FCC to publish the maps before NTIA distributes either the BEAD money or the Middle Mile grant money. So if the Republicans and Democrats cannot come to an agreement on the new 2022 broadband map, the broadband map does not issue in 2022. Or 2023. Or until whenever the FCC gets a third Commissioner.

 

This is not, of course, much of a problem for the giant ISPs lobbying hard to keep Sohn off the Commission. For them, the BEAD program is more a threat than a money maker, since the money will go to places the largest ISPs don’t want to serve (otherwise, they would be building there already). Indeed, the money is likely to go to potential rivals/competitors. Hence the likely controversy over the maps. The ISPs will do their best to minimize the geographic area unserved by broadband (defined in the statute as 100 megabits down/20 megabits up). Because while giant ISPs might like some of that money, it is far more important to them to keep potential new entrants or existing potential competitors from getting the money anywhere close to where the established ISPs offer service. By contrast, areas that don’t actually have broadband today want maps that reflect this reality — not maps that protect existing incumbents. Hence my belief that (like previous mapping exercises with even less on the line) the vote to produce the 2022 broadband map will be along party lines and thus need a 3rd Democrat.

 

Which, of course, is impossible without Sohn being confirmed as the 5th Commissioner. Which is just fine by the giant ISPs doing the lobbying, but not for Senators — R or D — from rural states.

 

I unpack all this below.

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We Will Have a Dream Team FCC (and NTIA) — But You Still Have To Fight For Your Right To Broadband!

President Biden has finally made his critical telecom appointments to fill out the Federal Communications Commission and the National Telecommunications Information Administration (NTIA). As expected, Biden named Acting Chair Jessica Rosenworcel to serve as full chair and renominated her to fill her expired term. As hoped, he also nominated my former boss (and all around Telecom Boss) Gigi Sohn to be the third FCC Commissioner. In addition, Biden nominated Alan Davidson to serve as Administrator/Assistant Sec. for NTIA. In addition to the critical role NTIA plays in spectrum policy, NTIA will also be the agency running the multi-billion broadband infrastructure program in the Bipartisan Infrastructure Bill (assuming that passes).

 

This makes lots of important things possible. Not just headline items like reclassifying broadband as Title II (which one would expect any Democratic FCC to do at this point). It includes developing smart and innovative policies to close the digital divide, enhance competition, put consumer protection front and center, and advance new spectrum management technologies that move us from scarcity to abundance. This trio (combined with already serving FCC Commissioner Geoffrey Starks, a champion of privacy and inclusion) are as potentially transformational in telecom policy as the appointment of Lina Kahn and Alvaro Bedoya to the Federal Trade Commission.

 

The Key word here is “potentially.

 

One of the biggest mistakes that people keep making in policy and politics is that you can just elect (or in this case, appoint) the right people and go home to let them solve the problems. Then people get all disappointed when things don’t work out. Incumbents are not going to simply surrender to new policies, and political power has limits. This will be especially true if Congress flips in 2022. So while this is definitely cause for celebration, we are going to have to fight harder than ever to get the policies we need to create the broadband (and media) we need — starting with the fight to get them confirmed over the inevitable Republican resistance.

 

Happily, fighting to achieve the right thing is much more enjoyable than fighting to prevent the wrong thing. But no one should think we can just go home, problem solved. As I have said for over 15 years, you can’t outsource citizenship. Citizen movements are citizen driven, or they either get co-opted or die. We are going to need to support (and occasionally push) the new FCC and NTIA in the face of unflagging industry pressure and political obstacles. The laws of political reality have not been repealed — but we have a unique opportunity to use them to our advantage.

 

A bit more about who these people are and the policy opportunities below. . . .

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We Can #ConnectTribes to Broadband, and YOU Can Help!

One of the unusual plot twists of this season on Spectrum Wars has been my agreeing more and more with FCC Chairman Ajit Pai. For those familiar with Babylon 5, this is rather like how G’Kar and Londo started working together by the end of Season 4 despite attacking each other’s home planets at various points in Seasons 1, 2 & 3. But as I like to say: “Always prepare for the best possible result.” Mind you, this doesn’t change all the things on which I vociferously oppose the current FCC. But I’m hoping to extend the spectrum streak into August.

 

Which brings me to one of the most important developments for connectivity for Native American Tribes, Alaskan Native villages and Native Hawaiian communities: the 2.5 GHz Rural Tribal Priority Window (TPW). This gives federally recognized Tribes on rural Tribal lands the opportunity to apply for free spectrum licenses in one of bands best suited for 5G. Tribes that receive these licenses will have the capability to build out their own 5G networks, bringing real, reliable and affordable broadband to communities that have the worst broadband access in the United States. Unfortunately, the application window closes on August 3. Because of the horrific impact of COVID-19 on Native American communities (rural Native American Communities have suffered worse economic and social impacts of COVID-19 than any other community in the United States, aggravated by the severe lack of broadband access), hundreds of eligible Tribes will not be able to meet the August 3 deadline to apply (less than 20% of the approximately 515 eligible federally recognized tribes on rural Tribal lands are expected to be able to apply under the current deadline, based on an estimate by MuralNet.org).

 

Tribal organizations such as National Congress of American Indians, The Southern California Chairmen’s Tribal Association, Native Public Media, and AMERIND Risk Management (a Tribal owned corporation chartered under federal law) are working with my employer, Public Knowledge, to request the FCC to extend the window until February 3, 2021. As I explain below, this will benefit hundreds of Tribes and their communities, while harming no one. But best of all, you can help! Here’s how:

 

Tell your member of Congress to tell the FCC to extend the 2.5 GHz Tribal Priority Window. You can do that by going to the Public Knowledge #ConnectTribes action tool here.

 

Tell the FCC to extend the 2.5 GHz TPW. The Docket Number for this proceeding is 18-120. Simply head over to the FCC Express Comment page and tell the FCC in your own words that Tribes deserve a real chance to apply for wireless broadband licenses on their own sovereign Tribal lands so they can provide Tribal households and businesses with the broadband they need and deserve.

 

Participate in the #ConnectTribes Day of Action on Thursday, JULY 23 (TOMORROW!). One of the biggest problems is that no one outside of a very small set of telecom wonks and Native activists knows about this situation and why the FCC needs to extend the TPW until February 3. Tweet or otherwise use social media with the hashtag #ConnectTribes to raise the profile of this issue. We are planning a “Day of Action” this Thursday, July 23 to get this trending — but please keep using the hashtag to support Tribal connectivity until August 3.

 

More below . . .

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The Revolution Will Not Be Focus Grouped

Inspired by the incredibly powerful “The Revolution Will Not Be Televised” By Gil Scott-Heron

 

 

The Revolution will not be focus grouped

The Revolution will not come with cute and inoffensive hashtags

Audience tested by right-leaning independents and critical age demographics

The Revolution will not be focus grouped

 

 

The Revolution will not be focus grouped

The Revolution will not filter for the sake of November

It will not have carefully thought out tie-ins approved by the Leadership, carefully vetted,

Designed to roll off the tongue, soothe your nerves and ease your fears

The Revolution will not be focus grouped

 

 

The Revolution is not about living your best life

There will be no pictures of kittens or fun memes

There will be no control on who Tweets what or when

You will not stop the enemy from taking things out of context

Making up lies

Causing confusion

Acting in bad faith

Repeating the same debunked disinformation over and over

No change of hashtag will stop Fox News or OANN

From Owning the Libs and pwning the powerless

Tucker Carlson will not be fair and balanced

Laura Ingraham will not care about your hashtag

The Revolution will not be focus grouped

 

 

Sadly, Brother Scott-Heron was wrong

There will be pictures of pigs shooting down brothers

All over Twitter and Instagram

You will see brave sisters clubbed, groped and tazered by police

On YouTube or wherever you stream user content

You will see old people, young people, black, brown, white

Every color of the Rainbow and every sex and gender

Standing up to a tide of Blue in the black smoke with

The tear gas and the flash bangs and the rubber bullets flying

And you will see it over and over and over and over

Black people are in the street, demanding a brighter day

And they are not alone

The Revolution will not be focus grouped

 

The Revolution will not be artistically backlit, or retroactively gaslit

You will not hear about it from teaser trailers or viral videos made by commercial studios

You will not get woke from The View or set free by The Five

The Revolution will not be convenient to binge watch

The Revolution is not a dinner party

The Revolution is Black Men, Black Women, Black Children

All Shouting “I can’t breathe, and You WILL GET THE FUCK OFF MY NECK RIGHT NOW!”

The Revolution will not be tone policed.

The Revolution will not use polite language.

The Revolution will not be focus grouped.

The Revolution will not be focused grouped

The Revolution will not be focused grouped

 

 

The Revolution is hashtag live!

 

 

 

The Lessig Lawsuit (sung to the tune of “The Reynolds Pamphlet”).

Cyberlaw Twitter has been mildly abuzz recently over the news that Professor Larry Lessig. Has decided to sue the New York Times for defamation. Specifically, Lessig claims that a NYT article describing this essay on Medium, explaining his position around the mess at MIT Media Lab and an anonymous donation from the late and utterly unlamented Jeffery Epstein. In his complaint, Lessig accuses the NYT of using a deliberately misleading headline and lede knowing that the vast majority of people do not click through to read the actual content they share with others and that therefore this “clickbait defamation” (as Lessig calls it) was knowingly defamatory even under the exacting standard of NYT v. Sullivan.

 

Perhaps unsurprisingly, in light of both the connection with Jeff Epstein and because newspapers don’t like to be sued, folks have reacted with particularly scathing criticism of this lawsuit. Many view this as contradictory to Lessig’s previous advocacy for an open internet and information freedom. Some have gone so far as to accuse Lessig of filing a “Strategic Lawsuit Against Public Participation” (SLAPP) complaint. Meanwhile, legal Twitter has been awash with rather melodramatic proclamations of how Lessig has lost his way by suing a newspaper, even if it did screw him over bigly.

 

Perhaps it is just the sheer overwrote nonsense that gets me contrarian here, but I’m going to disagree with the broader tech Twitter community on this. The Lessig Lawsuit actually raises a rather interesting new question of defamation law with a high degree of relevance in the modern world. It also highlights one of the things defamation law is concerned about — the ability of people to spread false statements that have very serious impact on your life or profession with virtually no repercussions. The complicated dance between needing defamation to protect people from harassment and potentially having their lives destroyed and the First Amendment protections for speech and the press has been pumped up on steroids in the information age — but we still need to remember that it is sometimes complicated. It is also important to keep in mind that while defamation law is frequently abused, it also plays a very important role in pushing back on deliberate misinformation and using a fairly powerful megaphone to make other people’s lives miserable — such as with the lawsuit by Sandy Hook families against Alex Jones. Defamation law requires a balance, which is why we cure the problem of SLAPP suits with Anti-SLAPP suit statutes rather than simply eliminating ye olde common law tort of defamation.

 

So I’m going to run through the Case for the Lessig Lawsuit below. To be clear, I’m not saying I agree with Lessig. Also, as someone who himself has a tendency to overshare and think things through online, I rank trying to work out complex highly emotionally charged issues online as up there with Hamilton’s decision to publish the Reynold’s Pamphlet.  On the other hand, the chilling effect on open and honest discussion from “clickbait defamation” is an argument in favor of finding for Lessig here. Indeed, I have hesitated to say anything because the “chain of association cooties” and the ancient legal principle of “why borrow trouble.” (I am so looking forward to headline before my Senate confirmation hearing under President Warren with the title “Nominee supported Taking Jeff Epstien donation at MIT” — despite the fact that nothing in this blog post could reasonably suggest such a thing and the likelihood of my being nominated for anything requiring Senate confirmation ranks just behind my winning MegaMillions.) But I am hoping that obscurity combined with mind-numbing historical and legal discussion about one of my favorite traditional actions at common law will save me from too much opprobrium. Besides, the actual legal question is interesting and highly relevant in today’s media environment, and deserves some serious discussion rather than dismissive mockery.

 

More below . . . .

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Can Trump Really Have The FCC Regulate Social Media? So No.

Last week, Politico reported that the White House was considering a potential “Executive Order” (EO) to address the ongoing-yet-unproven allegations of pro-liberal, anti-conservative bias by giant Silicon Valley companies such as Facebook, Twitter, and Google. (To the extent that there is rigorous research by AI experts, it shows that social media sites are more likely to flag posts by self-identified African Americans as “hate speech” than identical wording used by whites.) Subsequent reports by CNN and The Verge have provided more detail. Putting the two together, it appears that the Executive Order would require the Federal Communications Commission to create regulations designed to create rules limiting the ability of digital platforms to “remove or suppress content” as well as prohibit “anticompetitive, unfair or deceptive” practices around content moderation. The EO would also require the Federal Trade Commission to somehow open a docket and take complaints (something it does not, at present, do, or have capacity to do – but I will save that hobby horse for another time) about supposed political bias claims.

 

(I really don’t expect I have to explain why this sort of ham-handed effort at political interference in the free flow of ideas and information is a BAD IDEA. For one thing, I’ve covered this fairly extensively in chapters five and six of my book, The Case for the Digital Platform Act. Also, Chris Lewis, President of my employer Public Knowledge, explained this at length in our press release in response to the reports that surfaced last week. But for those who still don’t get it, giving an administration that regards abuse of power for political purposes as a legitimate tool of governance power to harass important platforms for the exchange of views and information unless they promote its political allies and suppress its critics is something of a worst case scenario for the First Amendment and democracy generally. Even the most intrusive government intervention/supervision of speech in electronic media, such as the Fairness Doctrine, had built in safeguards to insulate the process from political manipulation. Nor are we talking about imposing common carrier-like regulations that remove the government entirely from influencing who gets to use the platform. According to what we have seen so far, we are talking about direct efforts by the government to pick winners and losers — the opposite of net neutrality. That’s not to say that viewpoint-based discrimination on speech platforms can’t be a problem — it’s just that, if it’s a problem, it’s better dealt with through the traditional tools of media policy, such as ownership caps and limits on the size of any one platform, or by using antitrust or regulation to create a more competitive marketplace with fewer bottlenecks.)

 

I have a number of reasons why I don’t think this EO will ever actually go out. For one thing, it would completely contradict everything that the FCC said in the “Restoring Internet Freedom Order” (RIFO) repealing net neutrality. As a result, the FCC would either have to reverse its previous findings that Section 230 prohibits any government regulation of internet services (including ISPs), or see the regulations struck down as arbitrary and capricious. Even if the FCC tried to somehow reconcile the two, Section 230 applies to ISPs. Any “neutrality” rule that applies to Facebook, Google, and Twitter would also apply to AT&T, Verizon, and Comcast. 

 

But this niggles at my mind enough to ask a good old law school hypothetical. If Trump really did issue an EO similar to the one described, what could the FCC actually do under existing law?

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I Accidentally Write A Book On How To Regulate Digital Platforms.

Some of you may have noticed I haven’t posted that much lately. For the last few months, I’ve been finishing up a project that I hope will contribute to the ongoing debate on “What to do about ‘Big Tech'” aka, what has now become our collective freak out at discovering that these companies we thought of as really cool turn out to control big chunks of our lives. I have now, literally, written the book on how to regulate digital platforms. Well, how to think about regulating them. As I have repeatedly observed, this stuff is really hard and involves lots of tradeoffs.

 

The Case for the Digital Platform Act: Market Structure and Regulation of Digital Platforms, with a Foreword by former FCC Chair (and author of From Gutenberg to Google) Tom Wheeler, covers all the hot topics (some of which I have previewed in other blog posts). How do we define digital platforms? How do we determine if a platform is ‘dominant’? What can we do to promote competition in the platform space? How do we handle the very thorny problem of content moderation and filter bubbles? How do we protect consumers on digital platforms, and how do we use this technology to further traditional important goals such as public safety? Should we preempt the states to create one, uniform national policy? (Spoiler alert, no.) Alternatively, why do need any sort of government regulation at all?

 

My employer, Public Knowledge, is releasing The Case for the Digital Platform Act free, under the Creative Commons Attribution-NonCommercial-ShareAlike license (v. 4.0) in partnership with the Roosevelt Institute. You can download the Foreword by Tom Wheeler here, the Executive Summary here, and the entire book here. Not since Jean Tirole’s Economics for the Common Good has there been such an amazing work of wonkdom to take to the beach for summer reading! Even better, it’s free — and we won’t collect your personal information unless you actively sign up for our mailing list!

 

Download the entire book here. You can also scroll down the page to links for just the executive summary (if you don’t want to print out all 216 pages) or just the Tom Wheeler foreword.

 

More, including spoilers!, below . . .

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How Not To Train Your Agency, Or Why The FTC Is Toothless.

You know your agency is pathetic at its job when Tea Party Republicans tell you to go harder on industry — especially in a Republican Administration that makes deregulation an end in itself and where despising government interference in “the market” is religious orthodoxy. So it was quite noteworthy to see Freshman Senator Josh Hawley (R-MO) tear the Federal Trade Commission (FTC) a new one for its failure to do anything about how tech companies generally (and Google and Facebook specifically) vacuum up everyone’s personal information, crush competition, swear general allegiance to Gellert Grindelwald and sell us out to the Kree. “The approach the FTC has taken to these issues has been toothless,” Hawley accused in his letter (apparently not meaning this adorable night fury over here).

 

I’m not going to argue with Senator Hawley’s characterization of the FTC. But since he is new in town I think it is important for him to understand why the FTC (and other federal agencies charged with consumer protection) have generally gone from fearsome growling watchdog to timorous toothless purse dog with laryngitis. Short answer, Congress has spent the last 40 years training agencies to not do their job and leave big industry players with political pull alone by abusing them at hearings, cutting their budgets, and — when necessary — passing laws to eliminate or massively restrict whatever authority the agency just exercised.   Put another way, Congress has basically spent the last 40 years conditioning consumer protection agencies to think about enforcement in much the same way Alex DeLarge was conditioned to think about violence in A Clockwork Orange, keep applying negative stimulus until the very thought of trying to enforce the law against any powerful company in any meaningful way makes them positively ill.

 

I explain all this, and the problem with “public choice theory” as applied here in Policyland, below . . .

 

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