Open Internet

New Trump FCC Chair Ajit Pai’s keynote speech on “Building the 5G Economy” at the Mobile World Congress in Barcelona today spotlighted to the communications world that the U.S. FCC is going in a very different policy direction than that of the previous FCC Chairman Tom Wheeler, who just happens to be speaking at the same event as a private citizen to a break-out session on “The Fourth Industrial Revolution.”

The fact that they are both at the largest communications event in the world delivering starkly divergent messages and visions, on the same day, provides an instructive and illuminating opportunity to juxtapose their contrasting policy approaches.

Here is my latest The Hill op-ed on How “Outdated Telecom Law Poses a Challenge for Agit Pai’s FCC.”

• It explains what is NOT a modern FCC.
• It’s also part 26 of my Modernize Obsolete Communications Law Series. (See below.)

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Modernize Obsolete Communications Law Series

Please don’t miss my latest The Hill Op-ed “The New Political Calculus for Net Neutrality.”

Please don’t miss my latest The Hill op-ed entitled “Rating the FCC’s Net Neutrality Enforcement Policy a Zero”

• It explains how net neutrality ceased being pro-consumer.  

Please don't miss my latest op-ed in The Hill: How Did Net Neutrality Become So Unreasonable?

Please don’t miss my latest Daily Caller op-ed: “How U.S. Internet Commons Policies Lessen Growth Jobs & Security.”

It spotlights how U.S. Internet commons policies – where “free” means a price of zero and “open” means no property -- create winner-take all economic outcomes for the Netstablishment at the expense of everyone else.

In the wake of a generally-unexpected election outcome, most everyone in the Internet space is grasping to understand the implications of an all Republican-led government and a Trump FCC, on their key issues. 

The purpose of this analysis is to spotlight and explain the most predictable changes to expect. By design, it is not comprehensive, because some issues are naturally less predictable than others.

To be most accurate, this analysis will be high-level and strategic, not detailed and tactical, because the “what” and the “why” here are more predictable at this early stage than the specific “how,” “when,” and “who” -- for obvious practical reasons.

I. Why are some issues very predictable at this early stage?

First, the simple, hiding-in-plain-sight, premise here, is the process/values clarity and predictability that naturally flow from unified one-party control of the levers of government.

This is the fourth time in eighteen years there will be unified one-party control of government: the Democrats had it 1993-94 and 2009-10; and Republicans had it 2003-06 and now in 2017-18. History confirms the high-level strategic predictability of one-party control of the levers of government.

FCC and FTC meet the law of unintended consequences.

A Ninth Circuit Court decision overturned an FTC enforcement action against AT&T for “throttling” broadband data speeds by definitively ruling that the FTC did not have any legal jurisdiction over AT&T (and other common carriers) because of the explicit common carrier exemption in the FTC’s core Section 5 legal authority.

Google: do as we say, not as we do.

[Note: This was submitted to the FCC for Reply Comments on the Title II Privacy NPRM]

The FCC’s Open Internet order and proposed Title II privacy rules divided what was unified.

For privacy, it broke what was working. Confused what was clear. Complicated what was simple. Unprotected what they sought to protect. Created more costs than benefits.

Since the Internet’s beginning the FTC has had privacy authority over information services.

For the decade since the FCC classified cable, wireless, and DSL broadband as an information service, and for the entire smartphone era where consumers became familiar with online privacy issues and regulation, the FTC was the sole unified regulator for protecting American consumers’ privacy.

In a 2014 filing to the FCC, the FTC explained why the FTC was better positioned to protect consumer privacy and data security than the FCC, because the FTC had national direct statutory authority to protect all consumers under: Section 5 -- that proscribes “deceptive” or “unfair” business practices; the Fair Credit Reporting Act (FCRA); and the Children’s Online Privacy Protection Act, (COPPA).