President Biden has finally made his critical telecom appointments to fill out the Federal Communications Commission and the National Telecommunications Information Administration (NTIA). As expected, Biden named Acting Chair Jessica Rosenworcel to serve as full chair and renominated her to fill her expired term. As hoped, he also nominated my former boss (and all around Telecom Boss) Gigi Sohn to be the third FCC Commissioner. In addition, Biden nominated Alan Davidson to serve as Administrator/Assistant Sec. for NTIA. In addition to the critical role NTIA plays in spectrum policy, NTIA will also be the agency running the multi-billion broadband infrastructure program in the Bipartisan Infrastructure Bill (assuming that passes).
This makes lots of important things possible. Not just headline items like reclassifying broadband as Title II (which one would expect any Democratic FCC to do at this point). It includes developing smart and innovative policies to close the digital divide, enhance competition, put consumer protection front and center, and advance new spectrum management technologies that move us from scarcity to abundance. This trio (combined with already serving FCC Commissioner Geoffrey Starks, a champion of privacy and inclusion) are as potentially transformational in telecom policy as the appointment of Lina Kahn and Alvaro Bedoya to the Federal Trade Commission.
The Key word here is “potentially.”
One of the biggest mistakes that people keep making in policy and politics is that you can just elect (or in this case, appoint) the right people and go home to let them solve the problems. Then people get all disappointed when things don’t work out. Incumbents are not going to simply surrender to new policies, and political power has limits. This will be especially true if Congress flips in 2022. So while this is definitely cause for celebration, we are going to have to fight harder than ever to get the policies we need to create the broadband (and media) we need — starting with the fight to get them confirmed over the inevitable Republican resistance.
Happily, fighting to achieve the right thing is much more enjoyable than fighting to prevent the wrong thing. But no one should think we can just go home, problem solved. As I have said for over 15 years, you can’t outsource citizenship. Citizen movements are citizen driven, or they either get co-opted or die. We are going to need to support (and occasionally push) the new FCC and NTIA in the face of unflagging industry pressure and political obstacles. The laws of political reality have not been repealed — but we have a unique opportunity to use them to our advantage.
A bit more about who these people are and the policy opportunities below. . . .
Regular readers will know I have been an unabashed Jessica Rosenworcel fan since she became a Commissioner. (See this piece I wrote back in 2014, for example.) I say this as the ultimate compliment: Rosenworcel is the wonkiest, nerdiest person ever chosen to lead the FCC. I cannot stress how much that is a good thing. For one thing, it means she has been a regular champion of the important-but-boring-highly-technical issues such as network resiliency and spectrum policy. She is also well aware of how technical details shape policy. This is in addition to a strong moral compass that lead her to literally invent the term “the homework gap” and champion closing the digital divide.
Gigi Sohn is a former boss of mine, a mentor, and a close personal friend. So yeah, I’m kind of biased here. But there is a reason she is one of the most famous, most celebrated (and most feared by industry) public interest advocates in Washington. It’s hard to think of a major policy fight in telecom in the last 20+ years where Gigi was not in the thick of things on the right side. Her skills have extended beyond effective advocacy to founding an organization (my employer, Public Knowledge) that is still going strong even after she left. She has trained and mentored more advocates in the field (including myself) than I can count. She is a political knife fighter par excellence. She understands the technology and she understands the stakes. She has a bullshit detector that goes to 11.
Alan Davidson is also someone I’ve known, liked and respected for many years. We go back to the early fights over ICANN when he was at Center for Democracy and Technology. He’s been in the private sector, he’s served in the Obama Administration, and most recently he has been back in the public interest sector (first at Open Technology Institute at New America Foundation, then at Mozilla). Again, we have someone who knows how the game is played and who has a demonstrated commitment to working for the public interest.
How Does This Play Out for Policy?
In addition, (and to focus mostly on the FCC), both Rosenworcel and Sohn share what I call “pragmatism in the good way.” They are not afraid of a fight, but they understand life is too short for showmanship and posturing. That means that before undertaking a major policy fight they need (a) an understanding of how this is actually going to improve people’s lives and how to implement it on a practical basis; and, (b) at least a decent chance that they can win something worth winning.
This is where we all come in. For policymakers to take political risks, they need to see evidence of support. They also need to _have_ evidence to support their policies. And yes, as I’ve mentioned many times before, anecdotal evidence is evidence and enough anecdotes taken together are, in fact, data. I call this the “Alice’s Restaurant Rule of Data.” One story is an “anecdote” and you can ignore it. 3 stories are “outliers” and “selection bias” so you can ignore them. But several hundred, or several hundred thousand stories is data. (To be clear, I’m not saying we should overweight personal evidence, especially where it can’t be independently verified. Selection bias and other concerns are real. See this good piece from Scott Wallsten at Technology Policy Institute on helpful hints on how to address some of these concerns.)
But to get back to the point. The other reason why we need advocates and public input to participate in FCC proceedings is because the FCC has a very limited capacity to gather knowledge on its own. At the same time, it has lots of well-funded industry players constantly deluging it with fancy studies with lots of math and cool graphs explaining how everything with the status quo is awesome, and the thing that would make it even better is more deregulation please. FCC staff are well aware that these studies and reports are produced with a particular result in mind. But unless there is offsetting input, this is all there is.
Let me give a concrete example. The Biden Administration in its Executive Order on Promoting Competition in America explicitly calls on the FCC to: “initiat[e] a rulemaking to prevent landlords and cable and Internet service providers from inhibiting tenants’ choices among providers” As it happens, the FCC has a pending rulemaking on this subject, and issued a Public Notice to update the record on what is actually going on in the real world on this subject and proposed ways to let people in “Multi-Tenant Environments” (MTEs) have a choice of ISP. (As the Oakland City Council just voted to do, and San Francisco did back in 2016.)
It’s clear the full FCC would like to do something here, but they need evidence to show a reviewing court that this is actually a real problem, and that picking a fight with the ISP industry is actually worth it because people would really like the opportunity to pick their own ISP. They also need to understand how this is actually playing out in the real world. You don’t have to be a lawyer to tell the FCC how you can’t subscribe to the ISP you want because your landlord won’t let you, or charges you extra to do so, or when you call up the competitor they tell you they can’t serve your building/condo/housing association/whatever. You can go here to file an express comment. The docket number is 17-142.
The same thing is true at the NTIA, but a bit different. The NTIA is going to be developing the guidelines for the states for giving away gobs of cash to build out broadband. There will be opportunity to shape these guidelines at NTIA, and opportunity to shape how the programs work on a state level. Needless to say, the incumbents will be pushing for ways to get as much money as possible with as little effort as possible. Even a sympathetic NTIA is going to need to hear about how local providers or local institutions can really build and operate these networks. Otherwise, people will do the safe thing and give the money to existing providers.
These are just two examples. There are going to be a lot of examples (hopefully) where public engagement and work by advocates and activists is going to be critical. Having a dream team at the FCC and NTIA means having a receptive audience that wants to do the right thing. It means having regulators in Washington who are actually looking to hear from the people who are usually marginalized and ignored. But it is not a fairy tale where getting the right people in charge magically translates into everyone living happily ever after.
Conclusion
Assuming confirmation, we have an unmatched opportunity for real change. It’s not going to be perfect (nothing ever is). And big companies like Comcast and AT&T are still going to make gobs of money — provided they are willing to work for a living. But it’s going to be a fight. No one is going to do this for us. Still, I will channel my inner Victor Lazlo from Casablanca and say: Welcome back to the fight. This time I know our side will win.
Stay tuned . . .