From Vox: Donald Trump just named a net neutrality foe to head the FCC

Another indication of a major policy shift from the Obama years

- Click here for the article.

Under President Barack Obama, the Federal Communication Commission passed regulations that provided strong legal protections for network neutrality. These rules, which were strongly opposed by telecommunications giants such as Comcast and Verizon, were designed to create a level playing field for online companies.

Now Donald Trump has taken the first step toward gutting those regulations: He has named Ajit Pai to be the next chair of the FCC.

Pai has served as a Republican member of the five-member FCC since 2012. He’s known for his deregulatory views generally and his opposition to network neutrality in particular. In a December speech, he complained that there was too much “regulatory underbrush” at the FCC, and vowed to “fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation.”

Network neutrality is likely to be at the top of Pai’s hit list. But supporters of network neutrality rules say that repealing them would be a disaster for the open internet and online innovation.

“Consumers need to be worried about what this means for their access to the internet,” argues Chris Lewis of the pro-net neutrality group Public Knowledge. He warns that in a world without network neutrality rules, big ISPs like Comcast or Verizon could block access to certain websites or force customers to pay extra to reach sites they don’t own.

The president can appoint an existing FCC member chair without Senate approval, according to Ryan Radia, a legal expert at the Competitive Enterprise Institute. So Pai won’t have to go through the confirmation process in order to assume his new role.

Republicans will have a majority on the FCC and in Congress, so there’s likely nothing Democrats or liberal groups can do to stop Republicans from rolling back network neutrality rules. But it’s going to be a long, ugly fight that could tie up the FCC in the courts for years to come.

From the Washington Post: The FCC approves strong net neutrality rules

- Click here for the article.

The Federal Communications Commission approved strict new rules for Internet providers Thursday in a historic vote that represents the government's most aggressive attempt to make sure the Web remains a level playing field.

The rules would dramatically expand the agency's oversight of the country's high-speed broadband providers, regulating them like a public utility. They were adopted by a 3-to-2 margin with the commission's Republican members voting against them.

Under the rules, it will be illegal for companies such as Verizon or Cox Communications to slow down streaming videos, games and other online content traveling over their networks. They also will be prohibited from establishing "fast lanes" that speed up access to Web sites that pay an extra fee. And in an unprecedented move, the FCC could apply the rules to wireless carriers, such as T-Mobile and Sprint, in a nod to the rapid rise of smartphones and the mobile Internet.

What is net neutrality?

- What Is Net Neutrality And Why Should I Care? The Non-Geek’s Guide.

And what is the FCC?

- Wikipedia: FCC.
- Website: FCC.gov.
- FCC Rulemaking.

From the NYT: Telecom Investor Named to Be F.C.C. Chairman

A recurrent theme in this class is elite control of governing institutions. We are said to be a democracy and that rule rests with the people, but we are in fact a democratic republic. This means that the preferences of the population are filtered through a variety of institutions - legislative, executive and judicial - established in the Constitution.

What really matters is who controls those institutions.

Quite often these people are those who have the wealth and organizational ability to help supporters get elected to office, and then have the ability to control the institutions that set the rules that govern what they do. We use a variety of terms to refer to this: agency capture, the revolving door and the iron triangle among them. All refer to the relationships that begin to develop around the different institutions, organizations and people who have an interest in and influence over, some matter of public policy.

The concern is that these relationships - and the fact that private interests are part of these networks - makes it likely that private interests will win out over public interests in how these policies are set and implemented. On the other hand, these relationships ensure that participants in the public policy process have expertise in that field. The trick is balancing these two.

Here's a recent story from the New York Times that highlights this tendency in the communications industry. A well connected telecommunications investor and lobbyist - Tom Wheeler - has been named the head of the FCC - the regulatory agency that sets rules for the industry:

Mr. Wheeler served from 1992 to 2004 as the chief executive of the Cellular Telecommunications and Internet Association, the cellphone industry trade group, and from 1979 to 1984 was chief executive of the National Cable Television Association. That has led some telecommunications watchdog groups to worry that he might favor those businesses over consumers.

And:

Once he takes office, Mr. Wheeler, 67, will be under pressure not only to demonstrate that he understands rapidly changing technologies, but also to make clear that his previous work as a top lobbyist for the cellphone and cable television industries will not prejudice his F.C.C. decision-making.

Mr. Wheeler will have to confront several issues almost immediately upon Senate confirmation and being sworn in. The commission is preparing for a complicated auction next year of bands of spectrum — the electromagnetic airwaves over which television, radio and cellphone signals travel.

. . . Mr. Wheeler and the commission will also have to decide the extent to which various companies will be eligible to bid for the bands of spectrum. Some consumer advocates say they believe that AT&T and Verizon already control too much of the wireless phone market — roughly 70 percent — and should not be allowed to lock up more spectrum.

The companies, some members of Congress and others, however, want the F.C.C. to maximize revenue from the spectrum auction — which would mean allowing AT&T and Verizon to buy as much as they want. 

Since this is topical - we might want to try to unpack the relationships that exist in the telecommunications sectors and the Federal Communications Commission. It'll give us an idea about how political influence really flows on the national level.

Free speech, indecency, and the FCC

Over the past decade the Federal Communications Commission has aggressively fined TV and radio stations for airing indecent material, including "fleeting expletives." The Supreme Court has struck these down due to their being overly broad and vaguely enforced. But there are constitutional arguments to be made against these restrictions as well.

So these proposals often pit free speech groups against parent's advocacy groups - among others. FCC regulations amount to censorship according to free speech advocates.

The recent court rulings, plus a back log of complaints (1.4 million) has led the FCC to rethink its rules. They have issued a request for "public comment on a proposal that would focus on penalizing only "egregious" cases." 

From the Hill:

The proposal would be a shift away from the agency's past policy, adopted during the Bush administration, of penalizing even "fleeting expletives."

The commission asked for input on how it should handle expletives and brief non-sexual displays of nudity. The rules only cover broadcast TV and radio stations—not cable, satellite or Internet content.

FCC Chairman Julius Genachowski, who plans to step down in the coming weeks, did not issue any indecency fines in his four-year tenure. He had noted that the agency's authority was in legal limbo due to lawsuits claiming the policy violated constitutional free speech rights.

- Click here for FCC v. Fox.

The Federal Communications Commission chairman is stepping down

Story in the National Journal.

Wikipedia: FCC.

Wikipedia: Julius Genachowski

FCC website.

Three Hill stories about the FCC

2302's should read these since they touch on a critical independent executive agency - one that is commonly argued to be captured by the industry it is meant to regulate. 2301s should read these for what they tell us about federalism - what policies the national government claims it has authority to regulate. Few claims are made that it is unconstitutional for them to regulate communications since it seems by its nature to be an interstate activity. 2301s might also be attentive to the agency capture angle, since these relationships are driven by industries and the lobbyists who represent them. Are FCC commissioners truly independent and attentive to the needs of the general public, or are they placed on the commission to represent the needs of the industry?

1 - LightSquared: FCC's planned block will violate our 'constitutional rights': The FCC's efforts to resolve a conflict between LightSquared and companies that use GPS is getting nasty. More from PCWorld.

2 - FCC commissioner blasts his agency for over-regulation: This is self explanatory, but fits within the subject matter of previous posts on the overall impact of regulations and whether independent regulatory agencies are too zealous in their approach to what they do. It is worth pointing out that the commissioner in question was appointed by George W Bush and shares the general disposition to regulations that Republicans tend to have.

3 - Republican pushes FCC for details on Google 'Wi-Spy': The FCC has been investigating the fallout from the personal data Google collected and published while creating its Street View feature. A member of Congress wants to see the report.

For further info:
- The FCC Website
- The FCC Wikipedia site

From the Hill: FCC chairman agrees to strike Fairness Doctrine from rule books

This is huge news. Republicans have been pushing for this change for years:

Federal Communications Commission Chairman Julius Genachowski said his agency will remove the Fairness Doctrine from the rule books in response to a recent request from House Republicans.

"I fully support deleting the Fairness Doctrine and related provisions from the Code of Federal Regulations, so that there can be no mistake that what has been a dead letter is truly dead," Genachowski wrote in a letter Monday to House Energy and Commerce Chairman Fred Upton (R-Mich.).

"I look forward to effectuating this change when acting on the staff's recommendations and anticipate that the process can be completed in the near future."

Genachowski has frequently voiced his opposition to the rule, which required broadcasters to cover controversial public issues in a manner deemed fair and balanced by the FCC.

The commission stopped enforcing the rule in 1987 after concluding it was unconstitutional, but in recent years some Democrats have suggested reviving the policy in response to the increasingly partisan nature of cable news.

FCC Chairman Defends "Net Neutrality" | C-SPAN

FCC Chairman Defends "Net Neutrality" C-SPAN

For 2302's discussion of the evolving executive branch next week.

FCC Passes Net Neutrality Rules for the Internet

From the NYT.

FCC Proposes "Bill Shock" Rule

For 2302, here is an example of the rulemaking process. The Federal Communications Commission has proposed a rule "that would require mobile service providers to provide usage alerts and information that will assist consumers in avoiding unexpected charges on their bills." This would avoid bill shock in case, for example, if a child started downloading tons of songs not knowing each download cost $1 a kilobyte.

- Here's the FCC press release.
- Here's FCC's description of their rulemaking process.
- Slate comments on the rule.
- FCC bill shock proposal exposes carriers to greater legal woes, analyst says.

- Government To Protect Us From Bill Shock.

For 2301s and 2302s, this might be good for a general discussion of the proper role of government. Is the FCC right in proposing to do this? Are they protecting the public the abuse of cell phone companies, or should customers monitor their bills? In Tea Party language, is this in infringement of individual liberty?

The FCC, Rule Making and "Super WiFi"

For 2302, a taste of things to come in our explorations of the executive branch.

FCC Ruling on Fleeting Expletives Overturned

From the New York Times:

A federal appeals court struck down a Federal Communications Commission policy on indecency Tuesday, saying that regulations barring the use of “fleeting expletives” on radio and television violated the First Amendment because they were vague and could inhibit free speech.

...

In a unanimous three-judge decision, the Court of Appeals for the Second Circuit in New York said that the F.C.C.’s current policy created “a chilling effect that goes far beyond the fleeting expletives at issue here” because it left broadcasters without a reliable guide to what the commission would find offensive.

The appeals court emphasized that it was not precluding federal regulation of broadcast standards. “We do not suggest that the F.C.C. could not create a constitutional policy,” the court said. “We hold only that the F.C.C.’s current policy fails constitutional scrutiny.”

More from ScotuBlog.

This is the latest stage of the saga of FCC v Fox, which is more about the vagueness of rules rather than speech -- as far as I can tell anyway. The FCC may be able to punish broadcasters for these outbursts, but it has to be able to clearly and non-capriciously define them. That seems to be a difficult thing to do.

- What is a fleeting expletive?

Net Neutrality Rules Struck Down

But an appellate court, so the SC has yet to rule. This limits the jurisdiction of the FCC, so file it under checks and balances.

Julius Genackowski and the FCC

Slate Magazine has a positive profile of FCC chair Julius Genackowski, the first FCC chair with a background in Silicon Valley.

As with most executive agencies, the FCC is accused from time to time of being captured by the interests it is meant to regulate. Genackowski's background may lead us to wonder whether internet providers have enough clout to dominate the agency to the degree that television networks once did.

- Wikipedia: Julius Genackowski.
- Website: FCC.
- Deconstructing Julius: A conversation with FCC Chairman Genachowski
- Open Secrets: Contributions by computer and internet providers.

The Fairness Doctrine

TNR has a story about a conservative uproar over the possible reinstatement of the fairness doctrine.

The fairness doctrine was established over 60 years ago when limited airwaves caused the FCC to establish a policy mandating that opposing views be given to controversial topics. Since the airwaves were owned publicly and access was granted by a license issued by the FCC, broadcasters risked losing their licenses if they did not comply. In the 1980s, the expansion of access -- plus the opposition of ideologically oriented broadcasters -- led to the retraction of the policy.

Though conservatives, who believe they will suffer from the policy since conservative talk radio stations would be required to counter Rush Limbaugh with, say, Michael Moore.

Here's some pro and con about the policy.

Con: From the Heritage Foundation.
Pro: From Common Dreams.

Transparency at the FCC

Here's another story about increased transparency in government, this time at the Federal Communications Commission. The story is in the National Journal, which requires a subscription, but you may be able to sneak in.

It's a simple enough proposal, the FCC will now issue press releases stating the agenda of their meetings, three weeks prior to the meeting rather than one week. Not a big deal on the surface but the smaller the amount of time before the meeting, the greater control the FCC had in its meetings. The change was not entirely voluntary, but is in fact an example of checks and balances:

The announcement, and the press conference itself, were the direct result of pressure on Martin from the House Energy and Commerce Committee, which is conducting a months-long review of the FCC and its regulatory practices. Four days later, on April 28, an internal Energy and Commerce staff memo tightened the squeeze when it recommended holding oversight hearings in June, asserting, "The FCC process appears broken and most of the blame appears to rest with Chairman [Kevin] Martin."

In an effort to tamp down such criticism, the chairman has instituted a series of unilateral moves designed to make the FCC more transparent. "I've tried to be responsive to individual concerns that people have raised about the public not being aware enough about some of the issues that were in front of us,"

Congress has been critical of FCC actions as have members of the FCC itself. Much of the criticism is based on process:

Jonathan Adelstein, one of two Democrats on the five-member commission, delivered unusually candid remarks at a forum on Maryland's Eastern Shore last weekend, saying that the Federal Trade Commission is the model for how the FCC should be run. "They have a wonderful collegial atmosphere; they work together on things; they have an open, transparent process," he said. Noting that FCC regulators sometimes have to "beg and plead" to obtain data within the agency, he said, "There should be no fear about sharing information or having an open dialogue."

"The processes that the commission follows are exactly the same as when I actually worked in, physically in, the same office that Commissioner Adelstein is in now," Martin told NJ, referring to his days as an adviser to another regulator.

Critics offered a laundry list of additional steps the chairman could take to make the commission more transparent: requiring more-detailed disclosures of meetings involving FCC officials and outside parties; enforcing deadlines for merger reviews and responses to congressional inquiries; and allowing the public to comment on reports before they are final. Martin's efforts dovetail with the timing of the investigation.

Here's an example of what the beef was about:

Until recently, Martin conducted 11th-hour horse-trading on the eve of public meetings that led to delays of almost 12 hours. Some meetings scheduled for morning commenced at night, and reporters would hold betting pools on when each session would begin.

Uncertainty provides opportunities for politics and manipulation. The commission is continually under scrutiny for having cozy relationships with the interests they regulate. The move may, or may not, eradicate that.

The Latest From the FCC

I do not know for certain, but the Federal Communications Commission seems to be the most active of the federal regulatory commissions. A rank ordering of these commissions, in terms of activities, would be helpful.

Here is information about recent activity concerning its impending decision about whether to allow a merger between Sirius and XM Radio to go forward. Some allege that this will create a monopoly, while others point out that other technological advances, some driven by Apple, make a long term monopoly unlikely.

The post is from C-Net. Here is a link to its past postings on the FCC.

Just curious: Why doesn't the Federal Trade Commission have jurisdiction over this?

Sacrilege, Juicy Sacrilege

This being Texas and all, it's not nice to be anything but fawning over the dearly departed, but Slate argues that Lady Bird Johnson won't be able rest in peace until the full story of the fortune she made with her Austin radio station is told.

And its a great story. It illustrates the relationship we've touched on between congress, executive agencies and business interests.

The story begins in 1943 when the FCC, about to be abolished, was saved by young House Rep. Lyndon Johnson. Johnson developed a friendship with one of the FCC commissioners who helped clear the road for Lady Birds application for the station's license to be fast tracked. A fixer named Tommy "the Cork" Corcoran helped it along the way as well.

Once she owned it, in fast order the station was allowed to:

- broadcast 24 hours a day
- move to an "uncluttered" area on the dial where it would have little competition and broad coverage
- quintuple its power
- become a part of the CBS Radio network even though an affiliate existed within listening distance

Johnson also used threats to remove local army bases as leverage to persuade local business to advertise with the station. He (excuse me, she) was eventually allowed to add a television station to his/her holdings, which made them wealthy.

Politics is a contact sport in Texas as we all know. I've always thought that a political history of the use of government power to build fortunes would be a worthy project.

Not Fair?

The House rebuffs Senate efforts to reinstate the fairness doctrine.

Agency Capture

In my TTH 2301 class today we brought up the topic of agency capture, specifically concerning the Federal Communications Commission. Chris mentioned the connection between Clear Channel Communications and the Bush Administration and thought I was familar with the argument, I had no specific information at the time. Here's a link that lays out some of the connections.

You may also wants to check out this page at opensecrets.org that shows how much telecommunications companies gave to each political party during the 2004 electoral cycle. Clear Channel was not among the president's top contributors in 2004.