The T-Mobile Data Breach and Your Basic Primer on CPNI – Part II: How Will the FCC Investigate T-Mo’s Data Breach?

In Part I, I provided all the legal and political background to understand why the Federal Communications Commission’s (FCC’s) investigation into T-Mobile’s data breach impacting about 53 million existing customers, former customers, and folks who applied for credit checks but never have been customers, may be complicated politically. But what are the mechanics of the investigation? How does this actually work? What are the rules, and what remedies or penalties can the FCC impose on T-Mobile?

 

I explore these questions below . . . . .

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The T-Mobile Data Breach and Your Basic Primer on CPNI – Part I: The Major Background You Need to Know for This to Make Sense.

T-Mobile announced recently that it experienced a major cybersecurity breach, exposing personal information (including credit card numbers) for at least 53 million customers and former customers. Because T-Mobile is a Title II mobile phone provider, this automatically raises the question of whether T-Mobile violated the FCC’s Customer Proprietary Network Information (CPNI) rules. These rules govern, among other things, the obligation of telecommunications service providers to protect CPNI and how to respond to a data breach when one occurs. The FCC has confirmed it is conducting an investigation into the matter.

 

It’s been a long time since we’ve had to think about CPNI, largely because former FCC Chair Ajit Pai made it abundantly clear that he thought the FCC should not enforce privacy rules. Getting the FCC to crack down on even the most egregious violations – such as selling super accurate geolocation data to bounty hunters was like pulling teeth. But back in the Wheeler days, CPNI was a big deal, with Enforcement Bureau Chief Travis LeBlanc terrorizing incumbents by actually enforcing the law with real fines and stuff (and much to the outrage of Republican Commissioners Ajit Pai and Mike O’Reilly). Given that Jessica Rosenworcel is now running the Commission, and both she and Democratic Commissioner Geoffrey Starks are both strong on consumer protection generally and privacy protection in particular, it seems like a good time to fire up the long disused CPNI neurons with a review of how CPNI works and what might or might not happen in the T-Mo investigation.

 

Before diving in, I want to stress that getting hacked and suffering a data breach is not, in and of itself, proof of a rule violation or cause for any sort of fine or punishment. You can do everything right and still get hacked. But the CPNI rules impose obligations on carriers to take suitable precautions to protect CPNI, as well as obligations on what to do when a carrier discovers a breach. If the FCC finds that T-Mobile acted negligently in its data storage practices, or failed to follow appropriate procedures, it could face a substantial fine in addition to the FCC requiring it to come up with a plan to prevent this sort of hack going forward.

 

Assuming, of course, that the breach involved CPNI at all. One of the fights during the Wheeler FCC involved what I will call the “broad” view of CPNI v. the “narrow” view of CPNI. Needless to say, I am an advocate of the “broad” view, and think that’s a proper reading of the law. But I wouldn’t be providing an accurate primer if I didn’t also cover the “narrow” view advanced by the carriers and Pai and O’Reilly.

 

Because (as usual) actually understanding what is going on and its implications requires a lot of background, I’ve broken this up into 2 parts. Part I gives the basic history and background of CPNI, and why this provides the first test of how the Biden FCC will treat CPNI enforcement. Part II will look at application of the FCC’s rules to the T-Mobile breach and what issues are likely to emerge along the way.

 

More below . . .

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Does the Amazon “Drone Cam” Violate the FCC’s Anti-Eavesdropping Rule? And If It Does, So What?

Folks may have heard about the new Amazon prototype, the Ring Always Home Cam. Scheduled for release in early 2021, the”Drone Cam” will run a pattern of flight around your house to allow you to check on things when you are away. As you might imagine, given a history of Amazon’s Alexa recording things without permission, the announcement generated plenty of pushback among privacy advocates. But what attracted my attention was this addendum at the bottom of the Amazon blog post:

“As with other devices at this stage of development, Ring Always Home Cam has not been authorized as required by the rules of the Federal Communications Commission. Ring Always Home Cam is not, and may not be, offered for sale or lease or sold or leased, until authorization is obtained.”

 

A number of folks asked me why this device needs FCC authorization. In general, any device that emits radio-frequency radiation as part of its operation requires certification under 47 U.S.C. 302a and Part 15 of the FCC’s rules (47 C.F.R. 15.1, et seq.) In addition, devices that incorporate unlicensed spectrum capability (e.g., like Wi-Fi or Bluetooth) need certification from the FCC to show that they do not exceed the relevant power levels or rules of operation. So mystery easily solved. But this prompted me to ask the following question. “Does the proposed Amazon “Drone Cam” violate the FCC’s rule against using electronic wireless devices to record or listen to conversation without consent?

 

As I discuss below, this would (to my knowledge) be a novel use of 47 C.F.R. 15.9. It’s hardly a slam dunk, especially with an FCC that thinks it has no business enforcing privacy rules. But we have an actual privacy law on the books, and as the history of the rule shows the FCC intended it to prevent the erosion of personal privacy in the face of rapidly developing technology — just like this. If you are wondering why this hasn’t mattered until now, I will observe that — to the best of my knowledge — this is the only such device that relies exclusively on wireless technology. The rule applies to the use of wireless devices, not to all devices certified under the authority of Section 302a* (which did not exist until 1982).

 

I unpack this, and how the anti-eavesdropping rule might impact the certification or operation of home drone cams and similar wireless devices, below . . .

 

*technically, although codified at 47 USC 302a, the actual Section number in the Comms Act is Section 302. Long story not worth getting into here. But I will use 302a for consistency’s sake.

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Another Massive Hurricane, Another Chance for the FCC to Do Nothing — and Why Congress Must Pass the RESILIENT Act.

When I was growing up, I used to hear the nursery rhyme about the itsy bitsy spider climbing the waterspout, getting washed out, and then doing the exact same thing again. Whereas most people I have encountered regard this little jingle as a pean of praise to perseverance, I always thought it was a warning about what happens when you refuse to learn from past experience. Seriously spider dude, it’s a rain pipeReality does not care about your rugged determination and individualism. You need to take a lesson from the ant with the rubber tree plant and stop wasting time.

 

I bring this up as, once again, we have wildfires in California with rolling blackouts and massive hurricanes hitting the Gulf Coast — both of which have historically caused major telecom outages (although so far the infrastructure appears to be holding up). Rather than learn from these experiences over the last three years, the Pai FCC has become famous for it’s three-part Republican harmony version of the Itsy Bitsy Spider (telecom version) while the Democratic Commissioners are relegated to feeling the Cassandrefreude. So I will take this opportunity to plug the “Reenforcing and Evaluating Service Integrity, Local Infrastructure, and Emergency Notification for Today’s Networks Act” (aka the RESILIENT Act (section by section by section analysis here, press release here).

 

Briefly, Congress ought to pass the RESILIENT Act as quickly as possible. Neither the FCC nor state governments have taken the needed steps to update our regulations governing repair of physical networks to reflect modern network construction. The biggest change — that communications networks are no longer self-powered — requires that the FCC and the Department of Energy (DOE) (through the Federal Energy Regulatory Commission (FERC)) to work together to require power companies and telecom companies to coordinate. That takes federal legislation. But we also need to recognize that we can’t require every network to maintain reliability on its own. We need networks to use the redundancy that comes from having competing networks to provide the reliability we used to have from a highly regulated monopoly provider.

 

I explain more 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 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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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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Mozilla v. FCC Reaction, or Net Neutrality Telenovela Gets Renewed For At Least Two More Seasons.

I’ve been doing network neutrality an awfully long time. More than 20 years, actually. That was when we started arguing over how to classify cable modem service. As complained almost a decade ago, this is the issue that just will not die. I understand that, given the central importance of broadband to our society and economy. Nevertheless, my feeling on this can be summed up by the classic line from Godfather III: “Just when I thought I was out, they pull me back in.” [subtle product placement] I even went so far as to write a book on platform regulation to try to get away from this (available free here). [/subtle product placement] . But no. Here we are again, with a decision that creates further muddle and guarantees this will keep going until at least after the 2020 election.

Sigh.

 

Getting on to the basics, you can find the decision in its 186-page glory here. You can find a good analysis of what potentially happens next for net neutrality by my colleague John Bergmayer here. The short version is that we lost the big prize (getting the Order overturned, or “vacated” as we lawyers say), but won enough to force this back to the FCC for further proceedings (which may yet result in the “Restoring Internet Freedom Order” or RIFO being reversed and/or vacated) and open up new fronts in the states. The net result on balance is rather similar to what we had after the 2014 court decision that tossed out the 2010 net neutrality rules but laid the groundwork for reclassifying broadband as Title II; a curve ball that lets all sides claim some sort of win and creates enough uncertainty to likely keep the worst ISP abuses in check for the time being. (Mind you, ISPs will continue to test the boundaries, as they are already doing without actual enforceable rights in place.)

 

Most importantly, industry and the FCC can’t get what they want most (preemption of state authority) without going full Title II. This puts the FCC in a bind, since it can’t deliver the thing industry most wants. It also means that various state laws (especially the comprehensive California net neutrality law) and various executive orders imposing some sort net neutrality obligations now go into effect get to be litigated individually. As with the California privacy law passed last year, industry now has significant incentive to stop fooling around and offer real concessions to get some sort of federal law on the books. Also like the California Privacy Law, this is not going to be enough to overcome industry reluctance against a law with teeth and therefore is unlikely to go anywhere. So we are likely stuck until after the 2020 election.

 

I also want to emphasize that even the parts where we lost, as in 2014, contain the groundwork for ultimately winning. This gets lost in the headlines (particularly in the triumphant crowing of FCC majority). But like any good telenovela, this latest dramatic plot twist has lots of foreshadowing for the next few seasons and a set up for an even BIGGER plot twist in future seasons.

 

My incredibly long, highly personal and really snarky dissection of the D.C. Circuit’s opinion in Mozilla v. FCC and what it means going forward 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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Pai Continues Radical Deregulation Agenda. Next On The Menu — SMS Texting and Short Codes

In December 2007, Public Knowledge (joined by several other public interest groups] filed a Petition For Declaratory Ruling asking the Federal Communications Commission (FCC) to clarify that both SMS Text Messaging and short codes are “Title II” telecommunications services. Put another way, we asked the FCC to reaffirm the basic statutory language that if you use telephones and the telephone network to send information from one telephone number to another, it meets the definition of “telecommunications service.” (47 U.S.C. 153(53)) We did this because earlier in 2007 Verizon had blocked NARAL from using its short code for political action alerts. While we thought there might be some question about short codes, it seemed pretty obvious from reading the statute that when you send “information between or among points of the users choosing, without change in the form or content as sent and received” (definition of “telecommunications”), over the phone network, using phone numbers that it is a “telecommunications service.”

 

Sigh.

 

On the anniversary of the repeal of net neutrality, FCC Chair Ajit Pai now proposes another goodie for carriers – classifying both short codes and text messages as Title I “information service” rather than a Title II telecommunications service. As this is even more ridiculous than last year’s reclassification of broadband as Title I, the draft Order relies primarily on the false claim that classifying text messaging as Title I is an anti-robocall measure. As we at PK pointed out a bunch of times when the wireless carriers first raised this argument back in 2008 – this is utter nonsense. Email, the archetypal Title I information service, is (as Pai himself pointed out over here) chock full of spam. Furthermore, as Pai pointed out last month, the rise in robocalls to mobile phones has nothing to do with regulatory classification and is primarily due to the carriers not implementing existing technical fixes. (And, as the Wall St J explained in this article, robocallers have figured out how to get paid just for connecting to a live number whether or not you answer, which involves a kind of arbitrage that does not work for text messages.)

 

As if that were not enough, the FCC issued a declaratory ruling in 2015, reaffirmed in 2016, that carriers may block unwanted calls or texts despite being Title II common carriers. There is absolutely nothing, nada, zip, zero, that classifying text messages as Title II does that makes it harder to combat spam. By contrast, Title II does prevent a bunch of blocking of wanted text messages as an anticompetitive conduct which we have already seen (and which is occurring fairly regularly on a daily basis, based on the record in the relevant FCC proceeding (08-7). This includes blocking immigrants rights groups, blocking health alerts, blocking information about legal medical marijuana, and blocking competing services. We should therefore treat the claims by industry and the FCC that only by classifying text messaging as “information services” can we save consumers from a rising tide of spam for what they are – self-serving nonsense designed to justify stripping away the few remaining enforceable consumer rights.

 

Once again, beyond the obvious free expression concerns and competition concerns, playing cutesy games with regulatory definitions will have a bunch of unintended consequences that the draft order either shrugs off or fails to consider. Notably:

 

  1. Classifying texting as Title I will take revenue away from the Universal Service Fund (USF). This will further undermine funds to support rural broadband.

 

  1. Classifying texting as Title I disrupts the current automatic roaming framework established by the FCC in 2007.

 

  1. Classifying texting as Title I may, ironically, take it out of the jurisdiction of the Robocall statute (Telephone Consumer Protection Act (TCPA) of 1991).

 

  1. Trashing whatever consumer protections, we have for text messages, and taking one more step to total administrative repeal of Title II completely. Which sounds like fun if you are a carrier but leaves us operating without a safety net for our critical communications infrastructure (as I’ve been writing about for almost ten years).

 

I unpack all of this below.

 

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