Tales of the Sausage Factory

An insider’s view of the media hegemony

Welcome Back to the Net Neutrality Fight Summer Blockbuster Reboot!

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Hi everyone! Back from a 3 month sabbatical and my Mom’s heart surgery, and just in time for the nth+1 replay round on Network Neutrality. As with so many things, I can’t believe we are going to reboot this franchise once again and run through pretty much the same arguments. But as with repeal of Obamacare, Republicans would rather focus themselves on undoing Obama’s legacy rather than moving on and getting stuff done. Since they run the show, we play this game again.

 

Regular followers of this blog will know I have been fighting the net neutrality fights since they began back in 1998 (when it was the “open access” fight and the telcos were on our side). I have seen a steady stream of victories and defeats. Time and again, we have found ourselves backed into a corner and had to rally when everything seemed hopeless. However, as I explained back in 2010, there are reasons why network neutrality refuses to die, but that doesn’t mean we’ll win (this round) either. So, in the spirit of movie reboots and sequels, I will quote Captain Kirk to Captain Picard: ”I take it the odds are against us and the situation is grim . . . Sounds like fun!”

 

While I had certainly hoped the Republicans would see reason – Pai has made it clear that he is as obsessed with exterminating net neutrality and every other pro-competitive and pro-consumer policy at the FCC. Pai is obsessed with demolishing every single accomplishment of Wheeler’s as Kahn was to have his revenge on Kirk (which did not, in fact, work out very well for Kahn).  But Pai, and Blackburn and Senator Lee go beyond the usual Obama/Wheeler derangement syndrome (“Wheeler, hates it precious!“) This is full on Davros and the Daleks utter willingness to destroy reality.

 

Now I’ve heard people ask: “But the Republicans control the FCC. They control both houses of Congress. They are determined to ignore the millions of people who have already made their opposition plain, and ignore all the mountains of evidence that sits before them. What can we possibly do?”

 

Well, I have a message for Chairman Davros and his army of industry Daleks.

 

Stay tuned . . . .

My Letter To Trump On Why I Need to Hear Him Say: “Anti-Semitism Is Bad.”

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Dear Mr. President.

 

Why is it so hard for Donald Trump to say “Anti-Semitism is bad, and the US government will protect all people from hate crimes no matter what their race or religion”? This is really getting deeply troubling.

 

Yes, I get it. Jared, Ivanka, the grandkids. You love Israel. You get on great with Bibi. You have lots of Jewish friends. I’m sure Trump Tower makes the best falafel and humous on Israel Independence Day, and the best chopped liver on Rosh Hashanah.

 

But for some reason, in several consecutive press conferences, the rather simple and straightforward statement that “Anti-Semitism is bad. The government of the United States will not tolerate threatening Jews with violence, vandalizing synagogues or Jewish institutions, or otherwise treating Jews differently than anyone else,” or words to that effect, have not come out of your mouth. And that is a real problem for me.

 

I’m an Orthodox Jew. I’m generally supportive of the State of Israel. And, if Trump Tower had a hechsher, I’m sure I’d love your felafel or chopped liver. I’m also an American, and very proud of that. I have always been proud of being an American citizen. I have thrilled with pride when I testify before Congress on super boring telecommunication policy that here I am, wearing my kippah, being all open Jew person, and not here just to testify on Israel of some other Jewish topic. I walk through the “Halls of Power” not as a supplicant petitioning for favors — as my ancestors in Europe and the Middle East were forced to do — but as a proud citizen exercising my First Amendment right to “petition the government for redress of grievances.”

 

I have spent the bulk of my professional life in public policy, because I passionately believe in the promise and ideals of the United States of America.

 

And yes, you are my President. True, I voted against you. I oppose just about every policy decision you have made so far. But you are still the man who was elected President of the United States under the rules of the Constitution. That makes Donald Trump the President of the United States, and therefore my President.

 

So please understand. I really, really need to hear my President say: “The President of the United States denounces anti-Semitism. You, Harold Feld, have the same rights as every other American.” Not “hey, I’ve got Jewish grandkids” or “I’m the least Anti-Semitic person ever.”

 

I know I’m not the only one who probably needs to hear that explicitly. I know in these times that other people are under attack for their religion, for their race, for their gender or sexual orientation. I’m pretty sure they want to hear it explicitly from their President (whether they like him or not, whether they believe him or not). But I can only speak personally for me. I can tell you, as an American and Orthodox Jew, that I need to hear from my President that I am still an American who just happens to be Jewish — not a Jew who happens to live in America.

 

If you aren’t sure exactly what to say, here are the words that our first President, George Washington, used to reassure the Jews of Newport Rhode Island. At the time, there was not a single country in the world where Jews enjoyed equal rights as citizens. The best Jews could hope for was “toleration,” which could be withdrawn at any time. President Washington therefore reassured the Jews of America:

 

“It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.”

 

It would mean an awful lot to hear you quote those words, or say something similar.

 

Sincerely,
An American Citizen who happens to also be an Orthodox Jew

Trump Keeps Us All Guessing On Telecom.

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Usually in January, especially with a new Congress of new term, I like to try to do a “this year in telecom” preview. Hell, who doesn’t? (I mean, who in Telecom Policyland doesn’t. The answer for normal people is: “no one.”) But this year I can’t.

 

Oh, I can list all the issues we’ve been arguing over the last few years and guarantee we’re going to re-litigate them. We’ve already seen most of the ISP industry (joined by the Ad industry) push back on the privacy rules adopted last October.  We’ve seen a bunch of the industry submit their wish list for deregulation as part of the bienniel telecom regulatory review. And with Rep. Marsha Blackburn (R-TN) now Chair of the Telecom Subcommittee, we can expect lots of action on the Hill side on everything from FCC process reform to Telecom Act re-write. But the Trump Administration itself — its priorities, its possible pick for FCC Chair, and its general direction on telecom policy — remain as much a mystery as when I wrote about it last month.

 

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Is Net Neutrality (And Everything Else) Not Dead Yet or Pining For the Fjords? Contemplating Trump’s Telecom Policy.

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The election of Donald Trump has prompted great speculation over the direction of telecom policy in the near future. Not surprisingly, everyone assumes that the primary Republican goal will be to completely roll back net neutrality and just about every other rule or policy adopted by the Wheeler FCC — perhaps even eliminating the FCC altogether or scaling back it’s authority to virtual non-existence. Why not? In addition to controlling the White House, Republicans have majorities in the Senate and the House.  Jeff Eisenach, the head of Trump’s FCC transition team (now called “Landing Teams”), has been one of the harshest critics of the FCC under both Wheeler and Genachowski. So it is unsurprising to see a spate of articles and blog posts on the upcoming death of net neutrality, broadband privacy, and unlicensed spectrum.

 

As it happens, I have now been through two transitions where the party with the White House has controlled Congress. In neither case have things worked out as expected. Oh, I’m not going to pretend that everything will be hunky-dory in the land of telecom (at least not from my perspective). But having won things during the Bush years (expanding unlicensed spectrum, for example), and lost things in the Obama years (net neutrality 2010), I am not prepared to lay down and die, either.

 

Telecom policy — and particularly net neutrality, Title II and privacy — now exists in an unusual, quantum state that can best be defined with reference to Monty Python. On the one hand, I will assert that net neutrality is not dead yet. On the other hand, it may be that I am simply fooling myself that net neutrality is simply pining for the fjords when, in fact, it is deceased, passed on, has run up the curtain and joined the choir invisible.

 

I give my reasons for coming down on the “not dead yet” side — although we will need to work our butts off to keep from getting clopped on the head and thrown into the dead cart. I expect the usual folks will call me delusional. However, as I have said a great deal over the years: “If I am delusional, I find it a very functional delusion.”

 

More below . . . .

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The George Washington Pledge: “To Bigotry No Sanction, To Persecution No Assistance.”

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I’m starting what I call the George Washington Pledge.

 

THE GEORGE WASHINGTON PLEDGE

“I pledge to give to bigotry no sanction, to persecution no assistance. I pledge to work toward a world where everyone may sit under their own vine and fig tree, and there shall be none to make them afraid. A world that scatters light and not darkness in our paths, and makes us all in our several vocations useful here, and in due time and way everlastingly happy.”

 

Where did that come from, what does it have to do with George Washington and don’t I know that George Washington was a bigot who kept slaves? To answer the second question first, yes. I know that it is one of the great and cruel tragedies of history that George Washington himself, while expressing these concepts, was committing the ultimate bigotry and persecution by holding slaves and asserting that those of African descent were not fully human. Nevertheless, while this pledge made by the First President of the United States has never been fulfilled, it time we committed to making it true.

 

We live now in a time when it is the duty of those of us committed to the success of the American Experiment in self-rule to remember the promises and values which the founders of our country made the foundation of governance. Whatever their past success, whatever the sincerity of those who wrote the words, it falls on us to do our part to make these foundational values real. To quote the words of our first President: “If we have wisdom to make the best use of the advantages with which we are now favored, we cannot fail, under the just administration of a good Government, to become a great and a happy people.”

 

So where do the words of the George Washington Pledge come from? And what do I mean when I commit myself to it? See below . . . Continue reading

Are Police Jamming Cell Phones At Standing Rock Protest? The FCC Should Investigate.

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Given the lack of coverage in mainstream media, you might not have heard about the ongoing protest against the construction of the Dakota Access Pipeline immediately upstream from the Standing Rock Sioux reservation aka #NoDAPL. You can find some good statistics on the pipeline and number of arrests associated with the protest here. Setting aside my personal feelings about democracy, freedom to peacefully protest, and how the Sioux concerns seem rather justified in light of the Alabama pipeline explosion, this has now raised an interesting communications issue that only an FCC investigation can solve. Are police jamming, or illegally spying, on communications at the protest and associated Sacred Stone Camp?

 

Over the last week, I have seen a number of communications from the protest about jamming, particularly in the period immediately before and during the Thursday effort by police to force protesters off the land owned by Dakota Access Pipeline. In addition, this article in Wired documents why tribal leaders connected with the tribal telecom provider, Standing Rock Telecom, think they are being jammed. I’ve had folks ask to speak to me using encrypted channels for fear that law enforcement will use illegal monitoring of wireless communications. As this article notes, there are a number of telltale signs that law enforcement in the area have deployed IMSI catchers, aka Stingrays, to monitor communications by protesters. However, as I explain below, proving such allegations — particularly about jamming — is extremely difficult to do unless you are the FCC.

 

Which is why the FCC needs to send an enforcement team to Standing Rock to check things out. Given the enormous public interest at stake in protecting the free flow of communications from peaceful protests, and the enormous public interest in continuing live coverage of the protests, the FCC should move quickly to resolve these concerns. If law enforcement in the area are illegally jamming communications, or illegally intercepting and tracking cell phone use, the FCC needs to expose this quickly and stop it. If law enforcement are innocent of such conduct, only an FCC investigation on the scene can effectively clear them. In either case, the public deserves to know — and to have confidence in the Rule of Law with regard to electronic communications.

 

More below . . . .

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FCC Tells You About Your Phone Transition — Y’all Might Want To Pay Attention.

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I’ve been writing about the “shut down of the phone system” (and the shift to a new one) since 2012. The FCC adopted a final set of rules to govern how this process will work last July. Because this is a big deal, and because the telecoms are likely to try to move ahead on this quickly, the FCC is having an educational event on Monday, September 26. You can find the agenda here.

 

For communities, this may seem a long way off. But I feel I really need to evangelize to people here the difference between a process that is done right and a royal unholy screw up that brings down critical communication services. This is not something ILECs can just do by themselves without working with the community — even where they want to just roll in and get the work done. Doing this right, and without triggering a massive local dust-up and push-back a la Fire Island, is going to take serious coordinated effort and consultation between the phone companies and the local communities.

 

Yes, astoundingly, this is one of those times when everyone (at least at the beginning), has incentive to come to the table and at least try to work together. No, it’s not going to be all happy dances and unicorns and rainbows. Companies still want to avoid spending money, local residents like their current system that they understand just fine, and local governments are going to be wondering how the heck they pay for replacement equipment and services. But the FCC has put together a reasonable framework to push parties to resolve these issues with enough oversight to keep any player that participates in good faith from getting squashed or stalled indefinitely.

 

So, all you folks who might want to get in on this — show up. You can either be there in person or watch the livestream. Monday, September 26, between 1-2 p.m. For the agenda, click here.

 

Stay tuned . . .

Cleveland and the Return Of Broadband Redlining.

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I am the last person to deny anyone a good snarky gloat. So while I don’t agree entirely with AT&T’s policy blog post taking a jab at reports of Google Fiber stumbling in deployment, I don’t deny they’re entitled to a good snarky blog post. (Google, I point out, denies any disappointment or plans to slow down.) “Broadband investment is not for the feint hearted,”

 

But the irony faeries love to make sport. The following week National Digital Inclusion Alliance (NDIA) had a blog post of their own. Using the publicly available data from the FCC’s Form 477 Report, NDIA showed that in Cleveland’s poorest neighborhoods (which are also predominantly African American), AT&T does not offer wireline broadband better than 1.5 mbps DSL – about the same speed and quality since they first deployed DSL in the neighborhood. This contrasts with AT&T’s announcement last month that it will now make its gigabit broadband service available in downtown Cleveland and certain other neighborhoods.

 

Put more clearly, if you live in the right neighborhood in Cleveland, AT&T will offer you broadband access literally 1,000 times faster than what is available in other neighborhoods in Cleveland. Unsurprisingly for anyone familiar with the history of redlining, the neighborhoods with crappy broadband availability are primarily poor and primarily African American. Mind you, I don’t think AT&T is deliberately trying to be racist about this. They are participating in the HUD program to bring broadband to low-income housing, for example.

 

There are two important, but rather different issues here — one immediate to AT&T, one much more broadly with regard to policy. NDIA created the maps to demonstrate that a significant number of people who qualify for the $5 broadband for those on SNAP support that AT&T committed to provide as a condition of its acquisition of DIRECTV can’t get it because the advertised broadband in their neighborhood is soooo crappy that they fall outside the merger condition (the merger requires AT&T to make it available in areas where they advertise availability of 3 mbps). Based on this article from CNN Money, it looks like AT&T is doing the smart thing and voluntarily offering the discount to those on SNAP who don’t have access to even 3 mbps AT&T DSL.

 

The more important issue is the return of redlining on a massive scale. Thanks to improvements the FCC has made over the years in the annual mandatory broadband provider reporting form (Form 477), we can now construct maps like this for neighborhoods all over the country, and not just from AT&T. As I argued repeatedly when telcos, cable cos and Silicon Valley joined forces to enact “franchise reform” deregulation in 2005-07 that eliminated pre-existing anti-redlining requirements – profit maximizing firms are gonna act to maximize profit. They are not going to spend money upgrading facilities if they don’t consider it a good investment.

 

Again, I want to make clear that there is nothing intrinsically bad or good about AT&T. Getting mad at companies for behaving in highly predictable ways based on market incentives is like getting mad at cats for eating birds in your backyard. And while I have no doubt we will see the usual deflections that range from “but Google-“ to “mobile gives these neighborhoods what they need” (although has anyone done any actual, systemic surveys of whether we have sufficient towers and backhaul in these neighborhoods to provide speed and quality comparable to VDSL or cable?) to “just wait for 5G,” the digital inequality continues. I humbly suggest that, after 10 years of waiting and blaming others, perhaps we need a new policy approach.

 

More below . . .

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Can Obama Stop The Stalling On Clinton Appointees. Or: “It’s Raining Progressives, Hallelujah!”

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As we end 2016, we have an unusually large number of vacancies in both the executive branch and the judiciary.  As anyone not living under a rock knows, that’s no accident. Getting Obama appointments approved by the Senate was always a hard slog, and became virtually impossible after the Republicans took over the Senate in 2015.  This doesn’t merely impact the waning days of the Obama Administration. If Clinton wins the White House, it means that the Administration will start with a large number of important holes. Even if the Democrats also retake the Senate, it will take months to bring the Executive branch up to functioning, never mind the judiciary. If Clinton wins and Republicans keep the Senate, we are looking at continuing gridlock and dysfunction until at least 2018 and possibly beyond.

 

In my own little neck of the policy woods, this plays out over the confirmation of Federal Communications Commissioner Jessica Rosenworcel (D). Rosenworcel’s term expired in 2015. Under 47 U.S.C. 154(c), Rosenworcel can serve until the end of this session of Congress. That ends no later than Noon, January 3, 2017, according to the 20th Amendment (whether it ends before that, when Congress adjourns its legislative session but remains in pro forma session is something we’ll debate later). Assuming Rosenworcel does not get a reconfirmation vote (although I remind everyone that Commissioner Jonathan Adelstein was in a similar situation in 2004 and he got confirmed in a lame duck session), that would drop the Commission down to 2-2 until such time as the President (whoever he or she will be) manages to get a replacement nominated and confirmed by the Senate. Given the current Commission, this would make it extremely difficult to get anything done — potentially for months following the election. It would also force Chairman Tom Wheeler to remain on the Commission (whether he wants to or not) for some time.

 

From the Republican perspective, however, this has advantages. If Clinton wins, it means that the FCC is stuck in neutral for weeks, possibly months. Since Republicans generally do not like Wheeler’s policies, that’s just fine. By contrast, if Trump wins, Republicans will have an immediate majority if Wheeler follows the usual custom and steps down at Noon January 20. So even though Republicans promised to confirm Rosenworcel back in 2014 when the Ds allowed Commissioner Mike O’Reilly (R) to get his reconfirmation vote, they have plenty of reasons to break their promise and hold Rosenworcel up anyway. Not that Senate Republicans have anything against Rosenworcel, mind you. It’s just (dysfunctional) business.

 

Again, it’s important to remind everyone who obsesses about communications that this is not unique to Rosenworcel. From Merrick Garland (remember him?) on down, we have tons of vacancies just sitting there without even the virtue of a bad excuse beyond “well, we’d rather the government not function if someone on the other side is running it.” While I keep hoping this will change, I don’t expect either political party to have a change of heart around this following the next election.

 

Fortunately, I have a plan so cunning you can stick a tail on it and call it a weasel.  On the plus side, if I can get the President to go along with it, it will not only keep things working between January 3, Noon, and January 20, Noon. It will also give the Republicans incredible incentive to move Clinton’s nominations as quickly as possible. On the downside, it’s not entirely clear this is Constitutional. I think it is, based on the scanty available case law (mostly Nat’l Labor Relations Bd v. Canning). But, as with test cases generally, I can’t guarantee it. Still, like the idea of preventing a U.S. default on its debt with a trillion dollar platinum coin, it can’t hurt to think about it.

 

For the details of what I call “Operation Midnight At Noon” (throwback to the Midnight Judges), see below . . .

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Ninth Circuit Knee-Caps Federal Trade Commission. Or: “You Know Nothing, Josh Wright.”

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Back in October 2014, before the Federal Communications Commission (FCC) reclassified as Title II, both the FCC and the Federal Trade Commission (FTC) brought complaints against AT&T Mobility for failure to disclose the extent they throttled “unlimited” customers once they passed a fairly low monthly limit. You can see the FCC Notice of Apparent Liability (NAL) here. You can see the FTC complaint, filed in the district court for Northern California, here (press release here). As some of you may remember, the FCC was still debating whether or not to reclassify broadband as a Title II telecom service.  Opponents of FCC reclassification (or, indeed, of any FCC jurisdiction over broadband) pointed to the FTC enforcement action as proof that the FTC could handle consumer protection for broadband and the FCC should avoid exercising jurisdiction over broadband altogether.

 

In particular, as noted in this Washington Post piece, FTC Commissioner Maureen Olhausen (R) and then-FTC Commissioner Joshua Wright (R), both vocal opponents of FCC oversight of broadband generally and reclassification specifically, tweeted that the FTC complaint showed the FTC could require broadband providers to keep their promises to consumers without FCC net neutrality rules. Wright would subsequently reiterate this position in Congressional testimony, pointing to the FTC’s enforcement complaint under Section 5 of the Federal Trade Commission Act (FTCA) (15 U.S.C. 45) as an “unfair and deceptive” practice to prove that the FTC could adequately protect consumers from potential harms from broadband providers.

 

Turns out, according to the Ninth Circuit, not so much. As with so much the anti-FCC crowd asserted during the net neutrality debate, this turns out (pending appeal) to be dead wrong. Why? Contrary to what some people seem to think, most notably the usual suspects at Cable’s Team Rocket (who are quoted here as saying “reclassifying broadband means the FTC can’t police any practices of common carriers, at least in the Ninth Circuit” which is either an utterly wrong reading of the case or an incredibly disingenuous remark for implying that reclassification had something to do with this decision. You can see their full press release, which borders on the Trump-esque for its incoherence, here.)

 

As I explain below, the Ninth Circuit’s decision did not rest on reclassification of broadband. To the contrary, the court made it explicitly clear that it refused to consider the impact of reclassification because, even assuming mobile broadband was not a Title II service, AT&T Mobility is a “common carrier” by virtue of offering plain, ordinary mobile voice service (aka “commercial mobile radio service,” aka CMRS). The Ninth Circuit agreed with AT&T that because AT&T offers some services as common carrier services, AT&T Mobility is a “common carrier” for purposes of Section 5(a)(2) of the FTCA and thus exempt from FTC enforcement even for its non-common carrier services.

 

Given that Tech Freedom and the rest of the anti-FCC gang wanted this case to show how the Federal Trade Commission could handle all things broadband, I can forgive — and even pity — Tech Freedom’s desperate effort in their press release to somehow make this the fault of the FCC for reclassifying and conjuring an imaginary “gap” in broadband privacy protection rather than admit Congress gave that job to the FCC. After all, denial is one of the stages of grief, and it must come as quite a shock to Cable’s Team Rocket to once again see that Team PK-chu was right after all (even if it doesn’t make me particularly happy that we were, for reasons I will explain below). But this is policy, not therapy.  As of today, instead of two cops on the beat for broadband consumer protection access, we have one — the Federal Communications Commission. Fortunately for consumers, the FCC has been taking this job quite seriously with both enforcement actions and rulemakings. So while I consider it unfortunate that Ninth Circuit has cut out the FTC on non-common carrier related actions by companies offering a mix of common carrier and non-common carrier services, the only people who need to panic are Tech Freedom and the rest of the anti-FCC crowd.

 

OTOH, longer term, this does create a more general concern for consumer protection in more deregulated industries (such as airlines) covered by the exemptions in Section 5 of the FTCA. Yes, I know most folks reading this blog think the universe revolves around broadband, but this decision impacts airlines, bus services, private mail services like UPS, and any other company offering a common carrier service “subject to the Acts to regulate Commerce.” (15 U.S.C. 45(a)(2))  (Also meat packers and a few other named exceptions). So while I am hopeful the FTC appeals this to the full Ninth Circuit for en banc review (and even the Supreme Court, if necessary) from a general consumer protection perspective, the only direct result of this case for broadband policy is to underscore how important it is for the FCC to do its job despite the industry nay-sayers and their Libertarian cheerleaders.

 

More below . . .

 

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