Markey’s Bet on Net Neutrality Pays Off (But Not How You Think).

The results are in on the highly contested MA senate primary race between incumbent Senator Ed Markey and 4-term Congressman Joe Kennedy. While about 15% of the vote remains to be counted, it appears that Markey has won by about 10 points. That’s an amazing margin considering that he was trailing by double digits when Kennedy first announced his primary challenge and Markey was widely seen as the next Washington insider destined for the dustbin.

 

But as just about every activist in a wide range of causes pointed out when hearing of the primary challenge, Ed Markey is not your typical Washington insider. To the contrary, Markey has shown leadership on a host of vitally important issues for decades — and long before they were popular in democratic caucus. Markey’s campaign also bucked conventional wisdom by running aggressively on his record. Markey’s Senate win in 2014 was assured when he won the democratic primary, so it is unsurprising that many people in the state outside the activist community were unaware of just how much they owe to Ed Markey. Readers here most likely know him for his telecom work, but the impressive list includes fighting for the environment before it was cool, fighting for privacy before it was cool, and fighting for accessibility rights (which, sadly, is still not as cool as it should be). Markey’s commitment on the environment goes back well before the Green New Deal, and he was huge in writing the pro-environmental provisions in the 2005 Energy Act. He was a primary drafter of the Children’s Online Privacy Protection Act of 1999. He is responsible for the closed captioning provisions and the video description provisions of the Communications Act.

 

And, of course, he was one of the earliest supporters of net neutrality, going up against members of his own party to fight the anti-net neutrality provisions of the 2006 effort to rewrite the Communications Act. You can see me gush about Markey back in 2006 here. But my appreciation for Markey goes back to the 1990s, when he was one of the few members of Congress who actually cared enough about getting the technical issues right to dig in deep on the creation of ICANN.

 

All of this paid off yesterday in Markey’s primary challenge. Markey’s early decision to back net neutrality — like his decisions on privacy and disability access — were made when no one thought any of these things would matter in an election one way or another. And I’m not going to claim that net neutrality was a deciding issue for the voters of Massachusetts. But it is part of an overall record that established Markey as a genuine progressive leader and effective fighter long before anyone considered those election advantages. In particular, net neutrality is a highly popular issue among the young online progressive activist community that press reports are saying were essential to Markey’s astonishing turn around from trailing by double digits to winning by double digits (or almost double digits depending on the final count).

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The Trump Administration Goes to War over 5G, with Itself

(A somewhat sorter version of this appeared on the blog of my employer Public Knowledge)

If you have followed anything in the wireless world, you will have heard about 5G – the next generation of wireless technology. Technologists promise it will revolutionize our lives by enabling everything from gigabit mobile downloads to self-driving cars. Conspiracy theorists falsely warn it causes coronavirus and kills bees. Perhaps most impressively, however, 5G bridges the hyper-partisan divide in Washington, D.C. Ask anyone who does wireless policy and they will tell you that America absolutely needs to roll out 5G as quickly as possible, usually with dire warnings added that if we don’t move quickly, China will end up “winning the race to 5G.” President Trump himself has repeatedly emphasized that he wants the United States to lead in 5G and even 6G. True, 6G doesn’t actually exist, but this enthusiasm shows how seriously the Trump Administration takes moving forward on the Federal Communications Commission’s “5G Fast Plan” to open huge swaths of wireless spectrum necessary to support 5G technology.

 

It may therefore surprise you that the one discordant note in the 5G chorus over the last three years keeps coming from within the Trump Administration itself. Federal agencies have mounted an increasingly public campaign against the FCC and the wireless industry. It’s to the point that every FCC announcement of new 5G spectrum is now met with a different federal agency’s announcement that the FCC’s decision will interfere with vital life-protecting services. For example, the National Oceanic and Atmospheric Administration (NOAA) claims that 5G will cause serious interference to weather prediction (it hasn’t). The Department of Transportation claims that 5G will interfere with collision avoidance systems (again, despite recent FCC authorizations for use of this spectrum to boost connectivity during the COVID-19 lockdown, it hasn’t). 

 

Things have now come to an all-out war between the Department of Defense and the FCC, with the Defense Department claiming that a recent decision by the FCC (on a 5-0 bipartisan vote) resolving a decades-long dispute with a company now called Ligado will interfere with vital GPS operations. (The DoD runs the nation’s GPS satellites for military operations, despite the public’s ubiquitous use of GPS.) While the Ligado decision is only a small part of the “5G Fast Plan,” it has split the Trump Administration at the Cabinet level – where Secretary of State Pompeo and Attorney General Barr have supported the FCC and Defense Secretary Esper has attacked the decision. This turf battle has spilled over into Congress, with members of the Senate and House Armed Services Committee issuing dueling statements with members of the Commerce Committee (which has jurisdiction over the FCC). Unless contained, this 5G civil war threatens to paralyze the FCC spectrum process and the rollout of new spectrum for 5G.

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Memorial: Henry Geller, Public Interest Champion and Pioneer: 1924-2020.

On April 7, one of the great giants of public interest in telecommunications law and advocacy died. Henry Geller, the first Administrator of the National Telecommunications Information Administration  and the General Counsel of the Federal Communications Commission (FCC) during its activist phase around equal opportunity, banning cigarette advertising, and implementing the Fairness Doctrine. Henry died at age 96, a good long run.

 

It is perhaps understandable that Henry’s death should go largely unnoticed in the current coronavirus crisis. I have so far seen only one publicly available obituary Henry had been sidelined by illness associated with his age for years and in the age of broadband and digital platforms his advocacy for greater representation and more diverse ownership of broadcast media and promotion of children’s television will seem quaint or of little meaning to many in the era of Twitch and TikTok. But I would be remiss if I did not add my personal reminiscence and resect to those published by other colleagues (here and here).

 

I met Henry Geller when I joined Media Access Project back in 1999. It is perhaps difficult for people to understand what the world of “media reform”  and tech policy were like in the highly complacent 1990s and into the 00s. What had been a vibrant sector of public advocacy in the 1960s and 1970s around civil rights and public interest obligations of broadcasters and an effort to unleash the democratizing potential of cable television (As Asst. Secretary of Commerce for NTIA, Henry Geller famously recommended that cable operators be common carriers; the proposal, like many of Henry’s progressive proposals, was rejected) had withered to a handful of true believers fighting to protect the remaining public interest obligations and a handful of pro-diversity and pro-competition obligations in the 1992 Cable Act and 1996 Telecom Act. The Adarand and Lutheran Church decisions eliminated explicit race-conscious efforts to promote diversity in ownership or employment in broadcasting. The great pushback against “corporate media” for selling the American people the Iraq War was in the unforeseeable future. It was an easy time to become discouraged and abandon any hope for the future of broadcasting as anything other than a vast, corporate wasteland dedicated to cross-promoting products and promoting an increasingly ideological deregulatory agenda.

 

In all this, Henry Geller remained a happy warrior for change. But importantly, he was not in favor of simply trying to do the same thing over and over. He was constantly looking for new strategies. By the time I met him, his big proposal was to try to reallocate money from the planned DTV spectrum auction to become a permanent funding source for educational children’s television. Nor was Henry naive about how the FCC had allowed the definition of “children’s television” to be morality plays and thinly disguised commercials rather than more substantive education. But he was a big believer in acknowledging the failures of the past and trying to learn from them. Nor did his hopes for big and new solutions prevent him from paying attention to the details of ongoing fights, such as MAP’s continuing efforts to push cable ownership limits and program access rules.

 

And unlike many older policy proponents, Henry immediately grasped both the importance of broadband and new technologies to achieve traditional public interest goals of promoting diversity of views, racial diversity, and children’s educational content. Every time I talked to him over the 20 years I knew him, he was eager to hear about the latest technology and policy developments and discuss strategy. Especially in the early days of my career, when you could count the number of people in the traditional media reform community on your fingers and the number of folks interested in broadband on one hand, talking to an established elder of the community who didn’t feel we needed to constrain our thinking to the “pragmatic” and that we had to be looking for new, big ideas was a lifeline to sanity. Henry was not just encouraging of thinking about how to approach public interest problems in new ways. He was challenging in a positive way when much of what was left of the movement 9and before its resurgence) saw cynicism for wisdom. At every MAP board meeting, and in every conversation, he was prepared to ask how this related to our mission to promote diversity in the marketplace of ideas and universal access to information from the widest possible perspectives. Always he would push us to understand how our projects — from pushing for a low-power radio service to expanding unlicensed spectrum access — would give voice to the voiceless and opportunities to the marginalized.

 

Henry was an inspiration. Even as his age caught up with him and his fiscal frailty made it harder for him to participate in the advocacy which was his life, he remained mentally sharp and actively engaged. I never had a conversation with Henry Geller that wasn’t worth having. It is sad to think I’ll never have another.

 

Stay tuned . . .

Want to Keep America Home? Give Everyone Free Basic Broadband.

This originally appeared in substantially similar form on the blog of my employer Public Knowledge.

 

Medical experts agree that the most important thing we can do to support the efforts against the COVID-19 outbreak is a medical protocol known by the acronym STHH, or “Stay the Heck Home.” (Yes, I know how it’s usually written.) To keep Americans home, we need everyone to have broadband. It’s really that simple. Without telework, the economy would shut down completely. We would lose half a school year without distance education. But the value of everyone having a residential broadband connection goes well beyond that in the current crisis. Want to keep people off the streets to flatten the curve? Make it possible for them to shop online? Want them to access forms to receive government aid during this economic crisis? Cut down on physical doctor appointments to avoid infecting others? Fill out the 2020 Census so we don’t need armies of Census Takers going door-to-door? That all takes broadband.

 

But most importantly, human beings are social creatures. If you want to make it as easy as possible for human beings to stay in their homes, you need to make it possible for them to visit each other virtually. Always make it as easy as possible for people to do what you want them to do, and the STHH protocol requires lots and lots of people to do something entirely unnatural to human beings — stay socially isolated for an indefinite period of time that may last months. Virtual visits may not be as good as the real thing, but a video call with parents or grandchildren can do a great deal to relieve stress when you are stuck inside.

 

Unfortunately, as most folks know, the U.S. has some of the most expensive broadband in the developed world. Even with broadband providers signing the “Keep Americans Connected Pledge” to not disconnect anyone or charge late fees for the next 60 days, we will still see millions of unemployed Americans potentially accumulating significant past-due bills for a connection they desperately need in order to avoid getting sick. Nor does this help the estimated 18 million Americans who live in areas with broadband available but remain offline because they can’t afford a connection. Finally, the uncomfortable elephant in the room is that this may last much longer than the 60 days covered by the Keep Americans Connected Pledge. Even if we expect internet service providers to keep this promise during the entire pandemic, these are also businesses with employees. We want to support them during this economic crisis so they can pay their own employees.

 

So here is a very simple idea to persuade Americans to stay home, keep our virtual society running, and stimulate the economy. As part of the coronavirus stimulus package, the United States government should cover everyone’s broadband bill for a basic connection capable of supporting two-way video (ideally 25/25 Mbps, but we may have to settle for the Federal Communications Commission official definition of broadband of 25/3 Mbps).

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I get to deflate the 5G Hype Bubble a Bit at an Unusually Good Senate Hearing.

Official Washington is generally consumed with all things impeachment — especially the Senate. Nevertheless, other business does go on. So while it surprised many, Senate Commerce Committee Chair Roger Wicker (R-Miss) and Ranking Member Mariah Cantwell (D-WA) scheduled a hearing this morning (Wed. 1/22) on “The 5G Workforce and Other Obstacles to Broadband Deployment.” (Warning! The video of the hearing doesn’t actually begin until about 15 minutes have passed after you hit “play.” Hopefully this will be corrected in the future.) And, in what will no doubt be to the surprise of many, it was actually a pretty good hearing.

 

It was a fairly good hearing. Sparsely attended (members, including Wicker, joked about holding a morning hearing after impeachment proceedings ran until 2 a.m.), but the members who were there were actually trying to find out facts rather than just score some points. Because it was sparsely attended, members had lots of opportunity to ask their questions and get thoughtful responses. It was cordial and substantive. You know, the kind of thing everyone claims they want to see and laments we never have but is actually reasonably common on technical stuff and when it does happen everyone zones out because, lets face it, actual substance on important issues bores the pants off nearly everyone.
 
I was there primarily to address the “barriers to deployment” piece (although I had some things to say about workforce training, which is critically important and a fantastic opportunity to promote digital equity in urban and rural America — hopefully I will be able to write that up in a separate blog post). In particular, I focused on ‘why we should stop stomping on local governments just because carriers repeat over and over that if we don’t give them what they want then China will win the “race to 5G” — whatever the Hell that means.’ (No surprise, but I also put in a plug for opening up the 5.9 GHz band and 6 GHz band for unlicensed use on a non-interfering basis as quickly as possible.)
In addition to everything else, I must add a personal note. In these times, I feel enormously grateful for the opportunity to wear my kippah when testifying before Congress. I am not there as a Jew, or to testify about Israel or some other issue people think is particularly a “Jew thing.” I am there as an American. Proud of my religion and ethnicity, but fully integrated into the world of policy and national affairs. I don’t dress like either of the two Jewish stereotypes you see on television: a Hassid or a Woody Allen clone. I’m a real person. So are all the other Orthodox Jews I know.
Anyway, t get back to the subject at hand, you can read my testimony here. I am reprinting my opening oral statement below.
Stay tuned . . . .

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A Farewell To Julie Knapp.

Few people realize how much the spectrum world will change on January 3, 2020. That’s the day that Julius (Julie) Knapp, the Director of the Federal Communication Commission (FCC) Office of Engineering and Technology (OET) retires. You can read tributes to Julie Knapp from Chairman Pai, Commissioner O’Reilly, Commissioner Rosenworcel, Commissioner Carr, and Commissioner Stark. I would be remiss, however, if I failed to write something myself.

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My Insanely Long Field Guide To The C-Band Spectrum Fight, And Why This Won’t End In December.

Like most everything else at the FCC these days, problems that have relatively simple and straightforward solutions turn into horrible complicated messes. Take the C-Band, a slice of spectrum that in the U.S. lies between 3.7 GHz and 4.2 GHz. When first authorized for commercial satellite use back in the day, these frequencies were considered far too high to have much value for terrestrial use. These days, of course, 3.7 GHz is considered prime “midband” spectrum perfect for mobile 5G deployment, and sits right on top of the CBRS spectrum the FCC intends to auction next June. So wireless carriers want the FCC to repurpose some or all of it for 5G. In addition, a bunch of folks (including my employer Public Knowledge) support opening up portions of the band in rural areas for point-to-point backhaul (on a secondary basis, which means the backhaul guys need to protect the incumbents from interference).

 

The logical and straightforward thing to do would be to treat this like we did the 700 MHz auction/DTV transition over ten years ago. Tell the C-Band guys “sorry guys, we’re shrinking your available spectrum from 500 MHz to 200 MHz and taking back the other 300 MHz for auction. We’re also going to allow point-to-point backhaul on a non-interfering basis because that will really help rural ISPs. Don’t worry, we’ll set aside some of the auction money for a transition fund.” Sure, the incumbent licensees would scream (they always do), but this is a fairly proven solution that worked well to get us spectrum for 4G (and raised $20 bn for the Treasury) so why not do it again?

 

Or, if you really want to bribe the incumbent licensees, we could do an incentive auction. I’m not a fan, especially when it’s folks who got their licenses for free. But fine. We crossed that bridge awhile ago with the broadcasters, the authority for incentive auctions is now part of 47 U.S.C. 309(j), let’s just use it.

 

But nooooooo . . . . . This FCC in particular seems to love delaying everything while it rethinks all the options so it can come up with its very own wrong decision. Just as the FCC delayed deployment of the CBRS spectrum by 2 years by reopening that proceeding to redo the rules at the behest of the big carriers, now the FCC apparently wants to try a “private auction” under which the current holders of the satellite licenses (as represented by a group of licensees called “C-Band Alliance” or “CBA”) will go off behind closed doors, “auction” the public spectrum themselves, and then promise to give a piece of the money back to the FCC.

 

After snoozing through this for over a year, members of Congress have suddenly woken up and made this all interesting. Why? Analysts estimate that an auction of 300 MHz of C-Band spectrum would yield $50-60 billion in revenue. If the government conducts the auction, then it gets to credit $60 bn as a “payfor” to the budget for things like rural broadband or Trump’s border wall (assuming the Congressional Budget Office, aka CBO, agrees with the estimate). Notably, Senator Kennedy (R-LA) of the appropriations Committee had a little hearing with Chairman Pai where he politely but firmly made it clear to Pai that he thinks a private sale is a dumb idea and he wants a public auction. When that apparently did not work to move the needle, Kennedy jumped over Pai’s head and took the matter to President Trump, although there is no indication that Trump has decided to do anything on the matter.

 

Meanwhile, in the House, Rep. Mike Doyle (D-PA), Chair of the House Telecom Subcommittee, dropped a bipartisan bill, the C-Band Act, that would require the FCC to do an auction. Doyle followed this up with a hearing where the majority of the Members in attendance made it clear they wanted the FCC to run an auction so they could use that money to pay for rural broadband.

 

To understand why the distinction between private sale and public auction matters so much to Congress, you need to understand one of the peculiarities of how Congressional budgeting works and and terms such as “CBO score,” “paygo” and “payfor.” To state the matter quickly, if the FCC holds an auction, CBO can score the projected revenue of the auction as part of its annual budgeting process and that projected revenue can be used to “pay for” other projects under Congress’ “pay as you go” (aka “paygo”) rules. But if the licensees have a private auction, there is no CBO score even if the licensees make a voluntary donation to the FCCSo from the perspective of Congress trying to find money to do stuff, the difference is not between $60 bn and something less than $60 bn. The difference is between $60 bn and zeroGranted, no one in Congress appears to worry about deficits these days, but as Senator Kennedy observed, that money could fund “several other government projects (including the wall),” and $60 bn is not a small amount of money whether you want to fund the wall (like Kennedy) or rural broadband (like the House E&C).

 

But what can Congress do, especially with Chairman Ajit Pai apparently determined to give C-Band Alliance what they want (especially now that AT&T and Verizon have supported C-Band)? Funny thing, we had a similar issue back in 2002 when the Powell FCC tried to move ahead with an unauthorized incentive auction, and Congress stopped that cold despite FCC authorization of the auction.

 

I explain 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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Hurricane Michael A Wake Up Call On Why Total Dereg of Telecom A Very Bad Idea.

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.

 

I provide a lot more detail below.

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Why Platform Regulation Is Both Necessary and Hard.

This is the first blog in a series on regulating digital platforms.

 

As digital platforms have become increasingly important in our everyday lives, we’ve recognized that the need for some sort of regulatory oversight increases. In the past, we’ve talked about this in the context of privacy and what general sorts of due process rights dominant platforms owe their customers. Today, we make it clear that we have reached the point where we need sector-specific regulation focused on online digital platforms, not just application of existing antitrust or existing consumer protection laws. When platforms have become so central to our lives that a change in algorithm can dramatically crash third-party businesses, when social media plays such an important role in our lives that entire businesses exist to pump up your follower numbers, and when a multi-billion dollar industry exists for the sole purpose of helping businesses game search engine rankings, lawmakers need to stop talking hopefully about self-regulation and start putting in place enforceable rights to protect the public interest.

 

That said, we need to recognize at the outset that a lot of things make it rather challenging to  figure out what kind of regulation actually makes sense in this space. Although Ecclesiastes assures us “there is nothing new under the sun,” digital platforms combine issues we’ve dealt with in electronic media (and elsewhere) in novel ways that make applying traditional solutions tricky. Before diving into the solution, therefore, we need to (a) define the problem, and (b) decide what kind of outcome we want to see.

 

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