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A welcome restructuring at the FCC

by on January 9, 2018 · 6 comments

The FCC released a proposed Order today that would create an Office of Economics and Analytics. Last April, Chairman Pai proposed this data-centric office. There are about a dozen bureaus and offices within the FCC and this proposed change in the FCC’s organizational structure would consolidate a few offices and many FCC economists and experts into a single office.

This is welcome news. Several years ago when I was in law school, I was a legal clerk for the FCC Wireless Bureau and for the FCC Office of General Counsel. During that ten-month stint, I was surprised at the number of economists, who were all excellent, at the FCC. I assisted several of them closely (and helped organize what one FCC official dubbed, unofficially, “The Economists’ Cage Match” for outside experts sparring over the competitive effects of the proposed AT&T-T-Mobile merger). However, my impression even during my limited time at the FCC was well-stated by Chairman Pai in April:

[E]conomists are not systematically incorporated into policy work at the FCC. Instead, their expertise is typically applied in an ad hoc fashion, often late in the process. There is no consistent approach to their use.

And since the economists are sprinkled about the agency, their work is often “siloed” within their respective bureau. Economics as an afterthought in telecom is not good for the development of US tech industries, nor for consumers.

As Geoffrey Manne and Allen Gibby said recently, “the future of telecom regulation is antitrust,” and the creation of the OEA is a good step in line with global trends. Many nations–like the Netherlands, Denmark, Spain, Japan, South Korea, and New Zealand–are restructuring legacy telecom regulators. The days of public and private telecom monopolies and discrete, separate communications, computer, and media industries (thus bureaus) is past. Convergence, driven by IP networks and deregulation, has created these trends and resulted in sometimes dramatic restructuring of agencies.

In Denmark, for instance, as Roslyn Layton and Joe Kane have written, national parties and regulators took inspiration from the deregulatory plans of the Clinton FCC. The Social Democrats, the Radical Left, the Left, the Conservative People’s Party, the Socialist People’s Party, and the Center Democrats agreed in 1999:

The 1990s were focused on breaking down old monopoly; now it is important to make the frameworks for telecom, IT, radio, TV meld together—convergence. We believe that new technologies will create competition. It is important to ensure that regulation does not create a barrier for the possibility of new converged products; for example, telecom operators should be able to offer content if they so choose. It is also important to ensure digital signature capability, digital payment, consumer protection, and digital rights. Regulation must be technologically neutral, and technology choices are to be handled by the market. The goal is to move away from sector-specific regulation toward competition-oriented regulation. We would prefer to handle telecom with competition laws, but some special regulation may be needed in certain cases—for example, regulation for access to copper and universal service.

This agreement was followed up by the quiet shuttering of NITA, the Danish telecom agency, in 2011.

Bringing economic rigor to the FCC’s notoriously vague “public interest” standard seemed to be occurring (slowly) during the Clinton and Bush administrations. However, during the Obama years, this progress was de-railed, largely by the net neutrality silliness, which not only distracted US regulators from actual problems like rural broadband expansion but also reinvigorated the media-access movement, whose followers believe the FCC should have a major role in shaping US culture, media, and technologies.

Fortunately, those days are in the rearview mirror. The proposed creation of the OEA represents another pivot toward the likely future of US telecom regulation: a focus on consumer welfare, competition, and data-driven policy.

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Inching Closer to a Consistent First Amendment for the Information Age

by on January 5, 2011 · 0 comments

Back in 2007 I penned a law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age” in which I argued that “If America is to have a consistent First Amendment in the Information Age, efforts to extend the broadcast regulatory regime must be halted and that regime must be relegated to the ash heap of history.” I made that argument based not only upon the fundamental bankruptcy of the rationales supporting the old broadcast regulatory regime, or its unfairness to broadcasters relative to other media competitors, but also because such asymmetrical regulations no longer make sense — and are increasingly impractical to enforce — in an age of technological convergence and media abundance.

The good news is that, slowly but surely, the courts are coming around to this logic, at least as it pertains to speech controls.  We saw that again today with a ruling by the Second Circuit Court of Appeals that held as unconstitutional $1.2 million in fines that the Federal Communications Commission (FCC) levied on ABC broadcast affiliates seven years ago for airing a brief glimpse of Charlotte Ross’ bare buttocks on the cop drama “NYPD Blue.”   As the Wall Street Journal’s Amy Schatz notes, “Broadcasters have now won a series of court victories against government efforts to police airwaves and fine stations for airing risqué content. The Supreme Court could soon get a chance to review the issue. In the meantime, the FCC’s campaign to enforce indecency rules has ground to a halt.”

It remains to be seen whether the Supreme Court will throw the whole regime out, but I can’t help but think that’s where we are headed. Continue reading →

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And so the IP & Porn Wars Give Way to the Privacy & Cybersecurity Wars

by on December 7, 2010 · 5 comments

Every once and awhile it’s worth taking a step back and looking at the long view of how Internet policy developments have unfolded and consider where they might be heading next.  We’ve reached such a moment as it pertains to efforts to police the Internet for copyright piracy, objectionable online content, privacy violations, and cybersecurity.  We’re at an interesting crossroads in this regard since the prospects for successful cracking down on copyright piracy and pornography appear grim.  Seemingly every effort that has been tried has failed.  The Net is awash in online porn and pirated content.  I am not expressing a normative position on this, rather, I’m just stating what now seems to be commonly accepted fact.

In the meantime, the United States is in the process of creating new information control regimes and this time its access to personal information and cybersecurity that are the focus of regulatory efforts.  The goal of the privacy-related regulatory efforts is to help Netizens better protect their privacy in online environments and stop the “arms race” of escalating technological capabilities.  The goal of cybersecurity efforts is to make digital networks and systems more secure or, more profoundly as we see in the Wikileaks case, it is to bottle up state secrets.

These efforts are also likely to fail.  Simply stated, it’s a nightmare to bottle-up information once it’s out there.  Continue reading →

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Privacy as an Information Control Regime: The Challenges Ahead

by on November 13, 2010 · 5 comments

This week, we’ve seen reports in both The New York Times (“Stage Set for Showdown on Online Privacy“) and The Wall Street Journal (“Watchdog Planned for Online Privacy“) that the Obama Administration is inching closer toward adopting a new Internet regulatory regime in the name of protecting privacy online.  In this essay, I want to talk about information control regimes, not from a normative perspective, but from a practical one.  In doing so, I will compare the relative complexities associated with controlling various types of information flows to protect against four theoretical information harms: objectionable content, defamation, copyright, and privacy.

From a normative perspective, there are many arguments for and against various forms of information control.  Here, for example, are the reasons typically given for why society might want to impose regulations on the Internet (or other communications channels) to address each of the four issues identified above:

  1. Content control / Censorship: We must control information flows to protect children from objectionable content or all citizens against some other form of supposedly harmful speech (hate speech, terrorist recruitment, etc).
  2. Defamation control: We must control information flows to protect people’s reputations.
  3. Copyright control: We must control information flows to protect the property rights of creators against unauthorized use / distribution.
  4. Privacy control: We must control information flows to protect against information flows that include information about individuals.

Again, there are plenty of good normative arguments in the opposite direction, many of which are based on free speech considerations since, by definition, information control regimes limit the flow of forms of speech.  For privacy, I discussed such speech-related considerations in my essay on “Two Paradoxes of Privacy Regulation.”  But what about the administrative or enforcement burdens associated with each form of information control?  I increasingly find that question as interesting as the normative considerations.

Continue reading →

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event: Corn-Revere Speech at GMU (4/5) on “First Amendment & the End of History”

by on March 26, 2010 · 0 comments

My good friend and mentor Robert Corn-Revere, a Partner at Davis Wright Tremaine LLP, will be delivering what sounds like a terrific speech on April 5th at 4:00 at the George Mason University School of Law on “The First Amendment and the End of History: Does Media Convergence Mean the End of Regulation or is it Just the Beginning?” It’s a topic I care about deeply and you’ll see how influential Bob’s thinking has been on my own by watching that video down below.  Bob is one of America’s leading free speech scholars and a tireless defender of First Amendment rights. And he’s always entertaining when he steps to a podium to deliver remarks.  Admission to the event is free but RSVPs are requested: iep.gmu@gmail.com.  Here are logistical details:

Monday, April 5, 2010, 4 p.m. George Mason University School of Law (Room 120) 3301 Fairfax Drive, Arlington, Va. (Orange Line: Virginia Square-GMU Metro)

http://www.youtube.com/v/xJo3tVMScyI&hl=en_US&fs=1&

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Would a “Citizenship News Voucher” Get Us More “Broccoli Journalism”?

by on March 10, 2010 · 5 comments

Can we steer people toward hard news — and get them to financially support it — through the use  of “news vouchers” or “public interest vouchers”? That’s the subject of this latest installment in my ongoing series on proposals to have the government play a greater role in the media sector in the name of sustaining struggling enterprises or “saving journalism.”

As I mentioned here previously, last week I testified at the FCC’s first “Future of Media” workshop on “Serving the Public Interest in the Digital Era.” (@3:29 mark of video).  It was a great pleasure to testify alongside the all-star cast there that day, which included the always-provocative Jeff Jarvis of the CUNY Graduate School of Journalism.  He delivered some very entertaining remarks and vociferously pushed back against many of the ideas that others were suggesting about “saving journalism.” Jeff is a very optimistic guy–far more optimistic than me, in fact–about the prospect that new media and citizen journalism will help fill whatever void is left by the death of many traditional media operators and institutions. He had a lively exchange with Srinandan Kasi, Vice President, General Counsel and Secretary of the Associated Press, that is worth watching (somewhere after the 5-hour mark on the video).

Nonetheless, Jarvis is a enough of a realist to know that it has always been difficult to find resources to fund hard news, which he creatively refers to as “broccoli journalism.”  This is what is keeping the FCC, the FTC (workshop today), and many media worrywarts up at night; the fear that as traditional financing mechanisms falter (advertising, classifieds, subscription revenues, etc) many traditional news-gathering efforts and institutions will disappear. Of course, while it is certainly true we are in the midst of a gut-wrenching media revolution with a great deal of creative destruction taking place, it is equally true that exciting new media business models and opportunities are developing. We shouldn’t over look that, as I argued here and here.

Anyway, a lot of different proposals are being put forth by scholars and policymakers to find new ways to finance news-gathering or “save journalism.” One of the ideas that has been gaining some steam as of late is the idea of crafting a “public interest voucher” or what Robert W. McChesney & John Nichols, authors of the new book The Death and Life of American Journalism, call a “Citizenship News Voucher.”  And McChesney discussed this idea in more detail when he spoke at today’s FTC event on saving journalism. Continue reading →

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Cutting the Video Cord: US Open Streamed Online for “Free”

by on September 1, 2009 · 6 comments

The Tennis Channel and ESPN have teamed up to offer live coverage of the US Open online. Not only is this a wonderful thing for consumers, but it also demonstrates just how easily content creators (including traditional television programming networks) can completely bypass cable companies, who once supposedly used their “bottleneck” power to act as “gatekeepers” over the content Americans could receive. If this was ever true, it certainly isn’t true in the era of Internet video!

The venture will, of course, be ad-supported. But just how much content such a  model can support will depend  heavily on whether Internet video programming distributors like this venture (or Hulu.com) will be able to personalize the ads shown on their videos based on the likely interests of users.  Ad industry observer David Hallerman has predicted that spending on behavioral advertising:

is projected to reach $1.1 billion in 2009 and $4.4 billion in 2012 [a quarter of U.S. display advertising].The prime mover behind this rapid increase will be the mainstream adoption of online video advertising, which will increasingly require targeting to make it cost-effective.

The problem isn’t just the expense involved in streaming online video, it’s that contextually targeting advertising (based on keywords) is easy when the content is text but far more difficult when the content is video.

So if you’re hoping to cut the cord to cable and save the expense of a monthly cable subscription, you’d better hope the privacy zealots don’t wipe out advertising model necessary to make Internet video a true substitute for traditional subscription video sources!

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Video Presentation: “America’s First Amendment Twilight Zone”

by on March 12, 2009 · 133 comments

Today, it was my great privilege to guest lecture at Princeton University’s Center for Information Technology Policy. Under the leadership of Ed Felten, who also runs the excellent “Freedom to Tinker” blog, the CITP has quickly become one of America’s premier institutions in the field of IT policy matters. David Robinson, who some of you will remember from his days as an editor at The American, serves as associate director of the CITP program and was kind enough to invite me to speak.  And our own Tim Lee is currently studying there as well.  I wish I was smart enough to get into that program!

The topic of my talk was “The Future of the First Amendment in an Age of Technological Convergence” and I used the opportunity to create a narrated video of this presentation, which I have made to several other groups through the years. In this presentation, I talk about “America’s First Amendment Twilight Zone,” which refers to the fact that identical words and images are being regulated in completely different ways today depending on the mode of transmission. This illogical and unfair situation could eventually threaten the Internet, video games, and all new media with many of the misguided regulations that have long been imposed on broadcast television and radio operators. In my presentation, which you can watch below, I make the case for changing our First Amendment regime to ensure “bit equality”; all speech and media platforms should be accorded the gold standard of First Amendment protection.

http://www.youtube.com/v/xJo3tVMScyI&hl=en&fs=1

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Dawn of Convergence-Era Content Regulation at the FCC? “Child Safe Viewing Act” NOI Launched

by on March 3, 2009 · 17 comments

The Federal Communications Commission (FCC) has just released a Notice of Inquiry (NOI) in the matter of “Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming.” (MB Docket No. 09-26)  This NOI was required by S. 602, the “Child Safe Viewing Act of 2007,” which Congress passed last October and President Bush signed into law on December 2nd.  The measure requires the FCC to examine:

(1) the existence and availability of advanced blocking technologies that are compatible with various communications devices or platforms; (2) methods of encouraging the development, deployment, and use of such technology by parents that do not affect the packaging or pricing of a content provider’s offering; and (3) the existence, availability, and use of parental empowerment tools and initiatives already in the market.

The Act defines the term “advanced blocking technologies” as “technologies that can improve or enhance the ability of a parent to protect his or her child from any indecent or objectionable video or audio programming, as determined by such parent.”  Importantly, the Act also directs the agency to look into blocking technologies that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms” and which “operate independently of ratings pre-assigned by the creator of such video or audio programming.”   The Act requires that the FCC issue a report to Congress about these technologies no later than August 29, 2009.

When writing about the Child Safe Viewing Act shortly after its introduction in the summer of 2007, I noted that the measure potentially represented the beginning of “convergence-era content regulation” at the FCC.  Those two clauses highlighted above are of particular importance in that regard.  Congress has essentially invited the FCC to engage in unprecedented oversight of media platforms and ratings systems that the agency previously had very little ability to influence.  Continue reading →

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Senate passes “Child Safe Viewing Act” (S. 602)

by on October 2, 2008 · 9 comments

Yesterday, the Senate passed S. 602, “The Child Safe Viewing Act of 2007,” which was introduced by Sen. Mark Pryor (D-AR) in February 2007. The bill requires the Federal Communications Commission (FCC) to study the market for “advance blocking technologies” (i.e., parental controls and rating systems) that parents can use to protect their kids from inappropriate content from various sources and platforms. On the surface, the measure seems harmless enough, but in practice, it could have some troubling long-term free speech implications if it leads to more government meddling with parental controls and ratings systems.

The measure requires the FCC to initiate a notice of inquiry to consider measures to examine:

  1. the existence and availability of advanced blocking technologies that are compatible with various communications devices or platforms;
  2. methods of encouraging the development, deployment, and use of such technology by parents that do not affect the packaging or pricing of a content provider’s offering; and
  3. the existence, availability, and use of parental empowerment tools and initiatives already in the market.

That all sounds harmless enough. Indeed, such a study could produce some useful information about the state of the parental controls marketplace.  (Of course, I could save them some taxpayer dollars and just send copies of my big Parental Controls & Online Child Safety report to all FCC officials!)

But it’s what comes next in the bill that causes me some heartburn. As part of the review mandated by the bill, S. 602 commands the FCC to “consider advanced blocking technologies that”:

Continue reading →

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