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).
Tell your member of Congress to tell the FCC to extend the 2.5 GHz Tribal PriorityWindow. 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.
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.
Last week, Politicoreported that the White House was considering a potential “Executive Order” (EO) to address theongoing-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 byCNN andThe 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?
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.
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 . . .
This is part of a continuing series of mine on platform regulation published by my employer, Public Knowledge. You can find the whole series here. You can find the original of this blog post here. This blog post is Part 3 of a three part series on media and social media. Part 1 is here, Part 2 is here. This version includes recommendations that are my own, and have not been reviewed by, or endorsed by, Public Knowledge.
And now . . . after more than 6,000 words of background and build up . . . my big reveal on how to fix the problems in media! You’re welcome.
Somewhat more seriously, I’ve spent a lot of time in Part 1 and Part 2 reviewing the overall history of the last 150 years of how technology and journalism inter-relate because two critically important themes jump out. First, the evolution in communications technology always results in massive changes to the nature of journalism by enabling new forms of journalism and new business models. Sometimes these changes are positive, sometimes negative. But the dominance of the large media corporations financing news production and distribution through advertising revenue is not a natural law of the universe or necessarily the best thing for journalism and democracy. The Internet generally, and digital platforms such as news aggregators and social media specifically, are neither the solution to the dominance of corporate media as optimists hoped it would be or the source of all media’s problems as some people seem to think. Digital platforms are tools, and they have the same promise to utterly revolutionize both the nature of journalism and the business of generating and distributing news as the telegraph or the television.
In Part 2, I looked at how activists and journalists connected to social media used these tools in ways that changed the way in which the public observed the events unfolding in Ferguson in 2014, and how this challenged the traditional media narrative around race and policing in America. Combining the lessons from this case study with the broader lessons of history, I have a set of specific policy recommendations that address both the continued solvency of the business of journalism and steps to regain public trust in journalism.
Under Section 217, Paragraph (b), sub (1) of the “wonk code of conduct,” I am required to provide some immediate analysis on what the election means for my area of expertise (telecom/tech, if you were wondering). So here goes.
Everyone will still pretend to care deeply about the digital divide, particularly the rural digital divide.
The MPAA, RIAA and all the usual suspects are probably already shopping their wish lists. This is great news to any recently elected member of staffer who was worried about needing to get tickets to “Fantastic Beasts” or whatever other blockbuster they will screen at MPAA HQ.
Everyone will still talk about the vital importance of “winning” the “race to 5G” while having no clue what that actually means.
These predictions rank up there with “New England Patriots will play football, and everyone outside of New England will hate them” or “The media will spend more time covering celebrity ‘feuds’ than on major health crises like the famine in Yemen or Ebola outbreak in Congo.” They are more like natural laws of the universe than actual predictions. As for substance, y’all remember that Trillion dollar infrastructure bill Trump was gonna do in 2017? I suspect predictions about how federal policy is going to sort itself out will be just as reliable.
Why? Because at this stage there are just too many dang meta-questions unresolved. So rather than try to predict things, I will explain what pieces need to fall into place first.
Also, it’s worth noting that we had action on the state level that impacts tech and telecom. Start with Phil Weiser winning the election for State AG in Colorado. As Jon Oliver recently pointed out, don’t underestimate the importance of state AGs. This is particularly true for a tech savvy AG in a techie state. Then there is California’s governor-elect Gavin Newsom, who tried to address the digital divide as Mayor of San Francisco with a community wireless network back when people were trying that. Will he continue to make digital divide a major issue? But I’ll stick to my forte of federal policy for the moment.
Anyway, rather than try to predict what the policy will be, here’s what is going to have clarify first.
Readers of Harry Potter should be familiar with Cornelius Fudge, the Minister of Magic who refuses to believe Voldemort will return because believing that would require taking precautions and generally upsetting lots of powerful and important people. Instead of preparing for Voldemort’s return, Fudge runs a smear campaign to discredit Potter and Dumbledore, delaying the Wizarding World from preparing to resist Voldemort until too late.
I was reminded of this when I read Federal Communications Commission (FCC) Chairman Ajit Pai’s statement of frustration with the slow pace of restoring communications in the Florida in the wake of Hurricane Michael. Pai explicitly echoes similar sentiments of Florida Governor Rick Scott, that carriers are not moving quickly enough to restore vital communications services. Pai is calling on carriers not to charge customers for October and to allow customers to switch to rival carriers without early termination fees.
What neither Pai nor Scott mention is their own roll in creating this sorry state of affairs. Their radical deregulation of the telephone industry, despite the lessons of previous natural disasters such as Hurricane Sandy, guaranteed that providers would chose to cut costs and increase profits rather than invest in hardening networks or emergency preparedness. That is how markets actually work in the real world (as opposed to in the delightful dereg fantasy land dreamed up by hired economists). But rather than take precautions that might annoy or upset powerful special interests, they chose to mock the warnings as the panic of “Chicken Little, Ducky Lucky and Loosey Goosey proclaiming that the sky was falling.”
Now, however, the Chicken Littles come home to roost and, as predicted, private market incentives have not prompted carriers to prepare adequately for a massive natural disaster. This result was not only predictable, it was predicted— and mocked. So now, like Cornelius Fudge, Chairman Pai and Governor Scott find themselves confronted with the disaster scenario they stubbornly refused to believe in or safeguard against. And while I do not expect this to change Pai’s mind, this ought to be a wake up call to the 37 states that have eliminated direct regulatory oversight of their communications industry that they might want to reconsider.
Still, as Public Knowledge is both suing the FCC to reverse its November 2017 deregulation Order, and has Petitioned the FCC to reconsider its June 2018 further deregulation Order, perhaps the FCC will take this opportunity to rethink the certainty with which it proclaimed that carrier’s have so much incentive to keep their customers that they would never cut corners and risk service going down. Or perhaps Congress will now pay attention and decide that their constituents need enforceable rights and real protections rather than promises and platitudes.
@SenAmyKlobuchar @Apple @SenMikeLee @Google @WilsonLWhite @ConsumerFed @Spotify @horaciog @TheTileApp @Match @SenBlumenthal @MarkWarner A lot of the hearing focusing on platforms misusing data they've gleaned from apps competing on their platform. Think that's unfair and want to prohibit it? Try @haroldfeld's CPNI idea: https://www.publicknowledge.org/blog/an-ounce-of-preventive-regulation-is-worth-a-pound-of-antitrust-enforcement-the-case-for-platform-cpni/
@SenAmyKlobuchar @Apple @SenMikeLee @Google @WilsonLWhite @ConsumerFed @Spotify @horaciog @TheTileApp @Match @SenBlumenthal @MarkWarner @haroldfeld @SenOssoff .@SenAmyKlobuchar submitting PK's letter for the record into the hearing now. Hear it's really good & super well-written: https://www.publicknowledge.org/documents/public-knowledge-app-store-letter-to-congress-on-app-marketplace-competition-hearing/
@SenatorCantwell @linamkhan @FTC @SenAmyKlobuchar @SenBlumenthal Worried about local news? So is @publicknowledge. This might help: https://www.publicknowledge.org/documents/addressing-information-pollution-with-a-superfund-for-the-internet/ @lisahmacpherson
@SenatorCantwell @linamkhan @FTC @SenAmyKlobuchar @SenBlumenthal @publicknowledge @lisahmacpherson Now @SenAmyKlobuchar: Talking about the hearing this afternoon on app stores (#antitrust doubleheader). Khan talks about companies have power "to set the terms" of the market.