As HR 5709 meanders through the U.S. House, FCC targets a pirate station serving Brooklyn’s Haitian community

On 13 June 2018, the Federal Communications Commission issued a notice of unlicensed operation to Reginald Simeon, an operator of a radio station in Brooklyn, New York. The Commission alleges that Mr. Simeon’s station, operating from a residential property on East 49th Street in Brooklyn, may be operating on the 88.5 Mhz frequency without a license.  The unlicensed operation is, according to the Commission, a violation of section 301 of the Communications Act of 1934.  The Commission also alleges that power emissions from Mr. Simeon’s station violated Part 15 of the Commission’s rules as to allowed field strength of signals at 250 micro-volts per meter for three meters.

While there is the legal and regulatory issue of whether or not Mr. Simeon’s station operated without a license and whether the signal strength was too strong, there is, too me, the more important issue of whether the Commission is about to deny the Haitian community another outlet for receiving news pertinent to the community’s members.

Section 301 of the Communications Act of 1934 requires any person that owns or operates an apparatus that transmits energy, communications, or signals by radio must have, subject to certain exceptions, a license to do so. Mr. Simeon has 30 days to answer the Commission’s complaint and make a showing as to whether he or not section 301 applies to his operations.

The Commission has made “pirate radio” (a derogatory term in my opinion) a priority lately. Arguments against pirate radio include interference with licensed broadcasts; interference with public safety broadcasts; and potential health effects from unregulated radiation. Besides, some critics of pirate radio may argue, if radio operators want to avoid getting a license without getting in trouble why not simply stream their broadcasts via the internet?

Part of the answer to the streaming question may lie in the preferences of the culture. As Justin Strout pointed out in a 2009 article on Prometheusradio.org when discussing pirate radio and Haitian communities:

“For different communities, radio stations are the best way to reach people,” offers Brandy Doyle, a regulatory policy associate for the Prometheus Radio Project, a Philadelphia-based nonprofit advocacy group for low-power communications. The organization forms coalitions to push Congress to reform the rules and regulations that prohibit people from gaining access to the airwaves. “We find that even in the age of the Internet, people still want radio stations,” says Doyle. “In Florida, many of the unlicensed stations are operated by Haitian communities and other Caribbean communities that [have] immigrants who come from places where radio is really vital and important. They come to the U.S. and they can’t get a radio station license. They’re trying to reach the Haitian community in Miami, for example, where it’s really local. In many parts of the world, radio is much more central to daily life than it is in the U.S.”

Congress, however, seems keen on making operating a radio station without a license more expensive. HR 5709, the Preventing Illegal Radio Abuse Through Enforcement Act, provides the following:

“Any person who willfully and knowingly violates this Act or any rule, regulation, restriction, or condition made or imposed by the Commission under authority of this Act, or any rule, regulation, restriction, or condition made or imposed by any international radio or wire communications treaty or convention, or regulations annexed thereto, to which the United States is or may hereafter become party, relating to pirate radio broadcasting shall, in addition to any other penalties provided by law, be subject to a fine of not more than $100,000 for each day during which such offense occurs, in accordance with the limit described in subsection (a).” The limit described in subsection (a) is $2 million.

As a consumer, I do not care for internet radio. It is a costly tie-up of bandwidth. Also, during power outages, connecting to news and information is more difficult online versus via radio. All I need is a supply of batteries to keep my radio charged.

Policy wise, I do not see the Commission or the aforementioned Congress pursuing some type of middle ground policy that would keep small stations serving Caribbean communities alive. With Democrats and Republicans supporting the bill (it has been forwarded to the U.S. House Committee on Energy and Commerce), I see eventually passage by the full House and the U.S. Senate.

Caribbean media producers need paid prioritization

In his 2015 open internet order, former Federal Communications Commission chairman Tom Wheeler argued for a seamless internet that promotes a virtuous cycle of innovation.  This seamless internet ecosystem would include every point on the internet between the end user sitting at his laptop or on his smartphone and the website from whence the end user is attempting to download information. To ensure this seamless experience, Mr Wheeler invoked the four open internet principles of transparency; no paid prioritization; no throttling of a website’s traffic; and no blocking an end user’s attempt to access the website of her choosing.

As of 11 June 2018, Mr Wheeler’s rules are no more, repealed and replaced by the Restoring Internet Freedom order issued by the Commission in December 2017.  While the Restoring Internet Freedom order kept language from the open internet order that addressed transparency i.e. the public disclosure of accurate information regarding network management practices, performance characteristics, and terms and conditions of service, etc., it repealed language addressing throttling of traffic from website, paid prioritization creating faster lanes for content providers, and blocking consumer access to legal websites.

The 2017 order addresses throttling, blocking, and paid prioritization concerns by providing language defining reasonable network practices. A network management practice is reasonable if it takes into account a legitimate business goal, the network’s architecture, and the technology of the broadband service. But critics of the Restoring Internet Freedom order are interpreting the repeal as authorizing ISPs to block or throttle internet traffic or allow large content providers to pay ISPS for the privilege of faster data lanes to their subscribers.

Critics can also be found in state legislatures where, according to data compiled by the National Conference of State Legislatures, 65 pieces of legislation were offered in state legislatures that put the FCC’s 2015 rules on net neutrality into state law. Eight of these states (California, Georgia, Maryland, Massachusetts, New Jersey, New York, Pennsylvania, and Virginia have metropolitan areas where significant Caribbean populations are located.  None of these states have enacted net neutrality legislation yet. Net neutrality legislation has already failed to pass in three of these states: Georgia, Maryland, and Virginia.

I understand the idea of transparency because of the importance it plays in negotiating for broadband access services. I never understood, however, why so-called proponents of net neutrality rules were against voluntary strategic partnerships between ISPs and content providers.  For example, the Caribbean has an emerging entertainment industry, one that recognizes the benefits of digitization. In the 21st century artists have to leverage the internet to get to an audience that is viewing more video traffic via mobile. Getting in front of a sizeable Caribbean immigrant audience in the United States may mean leveraging paid prioritization in order to ensure the availability of bandwidth necessary to stream video and music.

The FCC’s decision to repeal paid prioritization may benefit entertainment producers from the Caribbean in the long run.  Attempts by the states to balkanize communications regulation should not be allowed.

A market-based, voluntary open internet, privacy regime is doable

The best protection on the internet is self-protection and a self-protection regime does not have to be implemented via any additional government rules. Rather, for a subscriber to broadband access services provided by an internet service provider, the subscriber should avail themselves of the opportunity to enter into voluntary agreements as to the level of privacy and open internet protections they wish to purchase. The discussion regarding the confusing legal verbiage of written terms and conditions offered to a broadband access subscriber by an ISP should raise the question, “Would transparency best brought about if negotiation of agreements were more bilateral in nature?”

Before delving in any further to the primary question, let me attempt to dispose of one other question that arose in your mind when I posed the first question. “Do people have time to negotiate an agreement for broadband access services?” My response: “Why not?”

Advocates for net neutrality rules captured in the Federal Communications Commission’ 2015 Open Internet Order argue that broadband is now an essential part of the life of the individual and that today’s economy is robust because of high-speed access to the internet. Broadband access, the advocates would argue, should be treated like a utility service given its importance in sustaining the household.

Some would argue that broadband access does not arrive to the level of human necessity, no matter what a number of international organizations have argued.  Among those in disagreement with the “broadband equal to a utility” argument is FCC member Michael O’Rielly, who on a number of occasions has clearly expressed that people do not need broadband to live.  Mr O’Rielly is not alone in his assessment. His two other Republican colleagues, FCC chairman Ajit Pai and FCC member Brendon Carr also agree that 20th century treatment of a competitive 21st century technology such as broadband should not be regulated as a utility.

But for the sake of argument, let us say that broadband access arises to the level of a utility service. If it is that important to life, why would you not negotiate its terms and conditions?  During a negotiation for broadband access, more than likely the ISP would offer some canned language describing minimum services with a list of add-ons and opt-ins for the subscriber to voluntarily agree to. The ISP may offer different tiers of service where each tier provides various levels of privacy protection, transparency, and options for download and upload speeds. If technology permits, there could even be allowance for traffic from chosen websites that receive priority.

In the end, a subscriber’s willingness and ability to pay for different tiers of service will determine the level and amount of privacy and openness she receives on the internet.

I think an answer from the second question provides an answer to the first. Negotiating terms and conditions of service should lead to more transparency because the consumer had a direct hand in creating her services package.  The subscriber would have first hand knowledge about the amount of privacy protection she has bargained for.  But the direct hand in negotiating agreements requires the subscriber’s willingness to educate herself on how her product works. This is a level of knowledge that consumers fail to obtain because they may consider gaining that knowledge to expensive and time consuming. Hence their love for consumer protection agents. They can punt the responsibility of an alleged important, utility style service to them.

Old school regulation of internet service providers raises the threat of less broadband competition and more consolidation

Yesterday’s vote in the U.S. Senate that upended the Federal Communications Commission’s repeal of its net neutrality rules was more political grandstanding than good policymaking. S.J. Res. 52 nullified the Commission’s “Restoring Internet Freedom” rules that would have gone into effect on 11 June 2018. The Restoring Internet Freedom rules reclassified broadband access service as an information service; reinstated private mobile service classification of mobile broadband internet access service; required internet access service providers to disclose information about their network management practices, commercial terms and conditions, and performance characteristics; and eliminated the internet conduct standards and bright-line rules.

By repealing the Commission’s Restoring Internet Freedom rules, the Senate signaled its preference for the Commission’s 2015 Open Internet order. The order, based on the premise that broadband access providers posed a threat to openness on the internet and could hinder the virtuous cycle of innovation being introduced by edge providers, the Commission created a regulatory framework that classified broadband access service as a telecommunications service. The 2015 order also established what it referred to as “bright-line” rules that prohibited paid prioritization; the throttling of traffic from websites; and the blocking of consumer access to the legal online content of their choice. In addition, broadband access providers were required to provide consumers with information as to their network management practices, network performance, and commercial terms and conditions. The rationale for this transparency was the need to ensure that consumers made choices based on accurate information.

With its declaration that broadband access is a telecommunications service, the 2015 order subjects broadband access providers to certain sections of the Communications Act of 1934, specifically sections 201, 202, and 208. Although the Commission expressed an intent to not regulate the rates that broadband access providers charge consumers, including edge providers, section 201 of the Communications Act allows broadband access providers to establish different classifications of service.

For example, services may be classified into day, night, repeated, unrepeated, letter, commercial, press, government, etc. So, while no content delivery service can pay a broadband access provider a little extra in order to have their traffic placed ahead of another content provider while in the same class of service, section 201 allows broadband access providers to establish different classes of service that content providers can explore and use.

Let us assume that for some reason the resolution is also approved in the U.S. House of Representatives and President Trump fails to issue a veto. Given the application of sections 201, 202, and 208, small broadband access providers may be faced with the opportunity of being acquired. If a large broadband access provider offers various classes of broadband access, it in essence is carving out smaller markets within which it will dominate. If a broadband access provider carves out a classification that competes with a smaller broadband access provider, that smaller provider will face existential choices. Either lower its rates to where it no longer sees a profit and eventually leaves the market or be acquired which means getting to non-existence a lot faster. The 2015 Open Internet order could well be an example of how regulation stifles competition.

Lastly, I would expect that states will want to get in on the action. I have made this argument before. Under a 2015 Open Internet order regime, states will reassert themselves as the frontline for consumer protection. State public utility commissions don’t see themselves as agencies that sit around and handle consumer complaints all day. They rather those annoying complaints be addressed by their states’ respective attorneys general. State public utilities would rather flex their muscles in the pricing arena and will probably tailor state rules that align with sections 201, 202, and 208 of the federal communications act. The rules and the accompanying administrative procedures that broadband access providers would have to comply with will become burdensome on smaller players.

The result: regulation creating a less competitive market.

Net neutrality: Good politics is about manipulating reality

Democracy gets too much credit as a platform for openness and equity. It operates efficiently by being the opposite: as a platform for manipulating reality by manipulating consensus. American society is under the mistaken belief that facts create reality. I would go further and say that Americans are confused as to the definition of the word “facts.” Engaged in an argument with the average bloke about politics and he will offer as fact his assertions based on what he perceives his surroundings to be as supported by something Joy Ann Reid or Sean Hannity said. That a fact should be measured and its existence corroborated would make his head spin. Measurement and corroboration require too much work and it is much easier to rely on feelings.

There is nothing wrong with feelings and perception per se as navigation tools for moving through life as an individual. As I get older I find myself increasingly comfortable with “going with the flow” of the day, an argument, an event. Being too linear in thinking for my personal daily life is restricting, cuts off the blood flow, creating an uptightness that drives my teenager crazy sometimes.  Sometimes you just have to say, “fuck it.”

But can a society take that attitude? I have some reservations at to what a society is purposed for but will share them some other time. For now, let us stick with a standard definition of what a society is, an organized group with some interest in common or group of persons forming a single community. While as individuals our daily rules of living may differ; you may choose to stay linear, I may choose the flow. A society, if it is to stay, by definition, cohesive must follow some standard that should be followed by everyone. It is a standard arrived at via some political mechanisms and agreed upon by consensus. The agreed upon standard is basis for the political, legal, and economic reality of the community.  Manipulate the consensus and you manipulate the reality.

Take for example the issue of net neutrality. Net neutrality is a set of principles that provide for transparency in the management of broadband networks, calls for equal treatment of all traffic flowing from all websites, and ensures that consumers are able to access the legal content of any website they choose to visit. In short, net neutrality guarantees an open and democratized internet experience.  Over the past fifteen years, ever since the inception of the concept via a paper written by a law professor, net neutrality has become for millions of Americans their internet reality.

Net neutrality is an example of manipulated consensus creating a new reality. Prior to 2003, there was no “net neutrality” concept. All traffic could not, and today arguably cannot, be treated the same. Latency, speed, and bandwidth requirements differ between types of content. Video form RealNetworks in the year 2000 used more bandwidth than an email. Remember your buffering issues? In 2018 while the buffering problems have been adequately addressed to the point where we can watch a two-hour movie on our laptops, a video still uses more bandwidth than email.  But why and how did the new consensus come about, that all traffic should be treated equally, even in the face of facts regarding network management?

First the why. In the early 1990s, alternative network providers, including cable television companies, offered services where they would take a business customer’s calling traffic, route it around a telephone company’s network, and deliver the traffic to the customer’s designated location. This was called bypass.   As revenues and profits increased and technology improved, these companies started their own local telephone networks competing for residential as well as business traffic. In these early local telephone competition days, the traffic that new entrants handed off to incumbent telephone companies was less than the traffic the new entrants received from incumbents. Instead of paying each other for the traffic they exchanged, they decided to merely keep the revenues they received from their own subscribers.

Competitors became increasingly successful and given the increased traffic they provided to the incumbents, the incumbents decided to start pursuing payments. New entrants including fledgling new content providers wanted to maintain the neutrality of payments i.e. no payment exchange, meaning that traffic should continue to be treated with neutrality. This was the beginning of the net neutrality argument.

Now, the how. Politics is about marketing to vote providers and behind good marketing is good communications. First, you make a legal and regulatory argument that neutral exchange of traffic is good policy and should be set in rule. Second, you approach regulators and the courts with this principle and try to convince them as to the feasibility, efficacy, and legality of such a rule. Lastly, to secure the rule once it has been passed, or to gain more support should the rule face roadblocks, you enlist an ignorant public with a narrative that net neutrality is about “open networks” and “freedom on the internet.” Get 4 million signatures on post cards mailed to the Federal Communications Commission and get John Oliver to go on television and skip 20 years of telecommunications history and you can change consensus on what net neutrality is really about.

So far, the efforts have put net neutrality on the political radar.  Efforts by the Federal Communications Commission to remove net neutrality rules from the books are being met in court by proponents for net neutrality rules. How it plays out, I don’t know. I do know that good politics is about effective manipulation of consensus and consensus creates the reality of net neutrality.

Time for broadband providers and Facebook to call a truce

Americans talk too much. They give up too much information on themselves. Right now, I am writing this post in a Krispy Kreme joint where a worker on break is sitting on my right yacking personal business on her smart phone. At the same time a customer is walking out of the store providing details on her travel itinerary including where she is to be picked up from and the color of the vehicle that will scoop her up.

Walk into the Kroger here in the West End Atlanta and you will gather a lot of opinions on the seemingly high prices and the budgetary stresses consumers are under. The U.S. Departments of Labor and Commerce would have a field day gathering so much consumer information.

And as the news that Bill Cosby has been convicted of sexual assault sits atop the “what’s trending” columns of social media, it will be impossible to avoid all the amateur legal and sociological assessments of the former “America’s Dad.”  Fans of Hugh Beaumont and Robert Young may be blowing sighs of relief that these two now sit alone at the top of the perch.

The current political environment provides much fodder for political commentary particularly on social media. The current occupant, as David Horowitz has observed, has had a seven second honeymoon post inauguration and is providing the left plenty to talk about. I don’t consider rumor about his wife, his philandering with prostitutes, or his fast food meal plan true political news. It is noise and in American politics that noise has become the new baseline. It is the surprise that pops out of the baseline that interests me. That is true information. How valuable those noises are is another matter.

Whether noise or baseline, Facebook is collecting and analyzing this user output, ascertaining as much user behavior as possible in order to offer up the user on an advertiser’s menu. This business model, at least in the short term, is working for Facebook as the social media firm is seeing an uptick in users and revenues. According to The Wall Street Journal, the number of Facebook users jumped to 2.2 billion while quarterly revenue jumped to $11.97 billion. It’s quarterly per share profit came in at $1.69, up from $1.04 a year ago. As I write this, Facebook shares are up 9.06% after today’s trading.  All this, according to The Journal, over a tumultuous 17 months of allegations that the company allowed Russians to abuse its platform and that its lax privacy practices allowed third parties to use its subscribers’ private data against the company’s privacy practices.

Some users have managed to share their opinions about Facebook’s privacy practices even as they continue to share cat videos, vacation schedules, and religious and political views. Facebook has been instrumental, as a supporter of net neutrality rules, in convincing some of these users to push the Federal Communications Commission to subject internet service providers (ISPs) to 20th century telephone rules in order to enforce management transparency and privacy protections for broadband subscriber data. The irony. How things have changed since the FCC passed onerous net neutrality rules in 2015 not only to see them overturned late last year but now to have Facebook be subjected to rules onerous enough to damage its business model.

Facebook could, in my opinion, do one of three things. It could continue with business as usual, taking a chance that continued user and revenue growth will buffet it against the threat of onerous regulation. On a second path it could call a truce with ISPs and together convince Congress to pass a statute containing a consumer bill of rights that provides for protection of data while codifying net neutrality principles of transparency   in network management, no blocking, and no throttling. The third path, would be market-based, where Facebook introduces a tiered service where subscribers that want added privacy protections would pay Facebook for insuring no third-party use of information.  Facebook could also “purchase” subscriber data in exchange for not using subscriber data beyond activities related to providing a better customer experience. That promise not to use customer data beyond the need for managing the CX should be equal to the very onerous telephone rules that Facebook would like seen applied to ISPs.

I would recommend Facebook go the middle route. It would ensure, in my opinion, a seamless application of privacy throughout the internet, something that past FCC chairman advocated for and the net neutrality posse cheered on.

Facebook is learning the hard way that American democracy has its spillover effect. To call for a democratized internet means Facebook must do its part to bring it about.

Is broadband access less about connectivity and more about individuality?

My sister recently experimented with Whole Foods‘ delivery service. As an Amazon Prime member, she could take advantage of no cost delivery to her home in the West End. This is a smart move on the part of Whole Foods to deliver to the West End, an area where the median household income is lower than the rest of Atlanta’s sectors. My observation has nothing to do with the wishful thinking that Whole Foods is practicing altruism, but the probability that Whole Foods is betting on the continued gentrification of the area; that it makes sense to plant a flag in the area so that when higher-income, cheap rent seeking young white couples move into the area, Whole Foods will be there to greet them. And while increasing the area’s investment value may not have been on the top of Whole Foods’ agenda, current property holders can at least tell their friends living in other areas of the city that they have not been left out of high-end food delivery options.

Going online and ordering your groceries is an example of what the long-term purpose of broadband connectivity is all about, especially for those with capital. If we accept the Facebook model of broadband and the internet, then we support the argument that broadband and the internet are about connecting people for the sake of creating a larger global community that leads to more democracy, peace, and understanding. This is one of the premises underlying net neutrality; the creation and maintenance of an open internet.  Two billion people connecting on Facebook may be deemed evidence that the globe is demanding this type of connectivity and community development on the world wide web, but such a view fails to account for the “politico-economic physics” of broadband and the internet. I believe the true value of broadband access lies in the empowerment that broadband access creates in the individual. The universe revolves around her and not the other way around.

The internet, at least for those with capital, is about bending the four-dimensional characteristics of space time and enhancing her sovereignty; creating a self-sufficient lifestyle for her. High value individuals don’t see the platforms upon which they move through space and time as flat or linear. The platform is geodesic; a curved line that provides the shortest distance between two points. In this case, between capital and the products and services that capital can acquire. The closer broadband technology brings her to sources of goods and services, the tighter her enclosure around her. She is not creating inclusiveness, or a bigger tent. In actuality, her tent becomes tighter, filled with other high value resources including friends and business associates. Creating a sovereignty blocks out the noise that the internet is becoming increasingly known for.

I would argue further that as her capital and value grows the more space-time bends around her. She creates a gravitational pull attracting even more resources, income, and opportunities. Those who argue for equality and democracy on the internet overlook this important value element. High value, capital holding consumers on the internet bend space-time toward them and high value content and service deliverers will point their commercial starships in the direction of high value.

How should policy react? It can either acknowledge the individual’s use of broadband to create a sovereign individual while transmitting her consumer energy into her tight commercial space or it can regulate her relationship with the points of commercial light within her internet space and risk forcing her to engage with value deficient “black holes” that threaten to reduce her incentive to engage in e-commerce or change her engagement in such a way that the value she receives and transmits is reduced. Policy should opt for protecting her choice for engaging with the value providers of her choice.