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.

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.

Free Press and Public Knowledge are getting a taste of big tent progressive politics

Brian Fung of The Washington Post put out a great piece this morning describing a growing rift between two factions on the progressive side of the net neutrality debate. Grass roots groups such as Free Press and Public Knowledge believe that supporters of the Federal Communications Commission’s 2015 Open Internet Order should aggressively push the Congress to overturn the Commission’s 2017 repeal of the Order.

Corporate supporters of the Commission’s Open Internet Order such as Facebook and Google are taking a more centrist approach. While they apparently still support applying net neutrality rules based in Title II of the Communications Act of 1934, they are now signaling that a bi-partisan Congressional approach via a new law would help resolve the net neutrality dispute once and for all.

Based on Mr Fung’s writing, the big tent has a few holes in the tarp, as meetings hosted by the Internet Alliance and attended by both net neutrality factions are growing in the number of attendees and an increasingly diverse level of issues are sprouting. Free Press and Public Knowledge are finding the hard way a couple important lessons about any corporations true mission and that diversity is an empty narrative.

First, the corporate mission. I hesitate to say that the good people at Free Press and Public Knowledge are naive (but I wouldn’t hesitate to say that their 4 million pro net  neutrality followers are), but both groups seem to have fallen for Google’s and Facebook’s silly mission statements about doing no evil and connecting the world for connection sake.

Google and Facebook created and maintained dominant positions in internet search and social networking by first optimizing their business models to maximize shareholder value, a lesson the lawyers at Free Press and Public Knowledge failed to remember from the business associations classes in the second year of law school. “Russiagate” has raised the ire of Congress and Google, Facebook, and other social networking and internet portal companies are gathering their wagons around their revenue streams and profit centers from potential government attacks. They cannot afford any regulatory volatility that will arise from the uncertainty of how net neutrality principles will be applied to broadband access providers. They are realizing that compromise legislation passed in the immediate term is good for long term growth.

While Google and Facebook play in the “attention economy”, Free Press and Public Knowledge play in the “agitation economy.” To stay relevant as a grass roots advocate leader, they must tear up the astro turf regularly. Settling the net neutrality tennis match via a bi-partisan bill means 4 million pairs of eye balls not looking their way because the show will be over. Nothing else to see here. Problem solved.

As for diverse voices, that narrative does not work. The bigger your tent, the further off course the original message drifts. Sooner or later the money bags step up and start setting priorities and those priorities will place those with the least coin ahead of the pack. The 4 million three huggers are going to have internet access no matter their personal beef with their broadband access provider. Most have access to two or three providers whether wireless or wireline. Facebook and Google cannot take comfort in any certainty. As big as they are in digital space, the wilderness is huge and there is always a young predator getting ready to spring out with new technology and the hunger and thirst to match.

Facebook and Google’s profit motives and needs are no different than the broadband access providers Free Press and Public Knowledge rail against. Facebook and Google will take control of the circus under the big tent and call for some grown up behavior that protects their revenues and profits.

 

The President’s 5G public works project

It is election year and President Trump is signaling that he is well aware that priming the economic pump to quench America’s thirst for growth in the economy may buy him some political capital while helping his fellow Republicans in the Congress and maybe a few Republican governors and state house members retain their seats. Today’s latest political proposal: construction of a nation-wide 5G communications network by the federal government.

Reuters reported earlier today that among the Trump administration’s initiatives to address potential Chinese hacks of America’s communications systems is the construction of a 5G network by the U.S. government. According to the report, the idea is still being considered among lower ranking staff within the Administration and proposals may not get to the President for another six to eight months.

Federal Communications Commission chairman Ajit Pai was quick to respond this morning to the 5G proposal. Mr Pai argued in his brief statement that construction of this latest generation of high-speed communications network was best left to the market. Rather than going down a costly and eventually unproductive path, the chairman recommended that federal policy stay the course and focus on getting more spectrum, that portion of electromagnetic waves necessary for making calls and moving mobile data, into the commercial space.

Again, Mr Pai demonstrated that he is one Republican that attempts to be practical.

Progressives haven’t come out one way or the other …. yet. Progressives have thrown support in the past behind the idea that initiatives on the part of municipalities to build their own broadband networks, premised on the need for access to affordable broadband in the face of a lack of supply by large carriers such as AT&T and Comcast. On first blush, Mr Trump’s idea seems to be nothing but municipal broadband on steroids, just on a national level.

I doubt, however, that advocacy groups like Public Knowledge or Free Press are going to jump on the opportunity to provide Mr Trump with any favorable optics on this issue. The last thing progressives want to risk is giving the Administration any type of lifeline that would help pull Mr Trump’s popularity into the respectable zone.

Mr Trump could have used the opportunity to make a political play based on economic stimulus a nation-wide project like this could provide. He could have sold it like his version of the Hoover dam, especially in rural or mountainous areas where broadband companies have dared not tread because of sparser populations and rough topography. The Deplorables in flyover states and the Forgotten that inhabit the insular territories of the Caribbean and the Pacific would have warmed up to Mr Trump’s goody bag of 5G services by 2021,especially if the idea is sold as another job creator.

Mr Trump will have to sell broadband access providers on the idea of falling on their swords and taking one in the national interest. According to NCTA, broadband providers have invested $1.4 trillion in constructing and deployong broadband networks. The cable industry alone claims to have made a $275 billion investment in broadband infrastructure.  They are not about to tell investors that future returns on this investment are about to be pushed aside by a public works communications project designed to keep China from eavesdropping on two ex-college room mates talking recipes for peach cobbler and the latest #MeToo campaign.

State regulators probably can’t wait for the return of net neutrality rules

Sovereign individuals are seeking refuge in cyberspace. Minimizing state intervention in the goings on in cyberspace should be a legal priority for those that want to engage and prosper in a decentralized internet. Imposing old telephone rules on broadband access providers under the guise of ensuring the democratization of the internet will have the opposite effect. The rules won’t create more freedom. It will squelch it.

What net neutrality rule proponents take for granted is the actual logistics of Title II regulation and the slippery slope that will emerge from old style telephone regulation of the prime conduit to the digital economy.

First, let’s look at regulation of the access piece from consumer to their internet service provider. Consumers will want this connectivity regulated, especially consumers that use cable modem services for their access. State regulators, who have long abdicated their participation in regulating access services, will find themselves struggling to get back into the oversight game. One argument for validating participation in regulation will be the regulators expert status as a protector of consumer interests. Most consumers know nothing about networks and will need the guiding hand of state commissions on issues of network management and transparency.

I will not be surprised if state commissions start requiring some type of price schedule that is made available for public viewing. Also, state commissions will find reasons for opening investigations into how network management may be impacting pricing. Lawyers and external affairs specialists will be in great demand.

The Federal Communications Commission and state public service commissions will take a more active role in rate design. In jurisdictions where they were abandoned, tiered rates be reintroduced. To make up for the dearth of broadband deployment in rural areas, states will now see an opportunity to authorize higher rates per broadband access line in urban areas in order to keep rates lower in rural areas. As more Americans move to urban centers, they will have to contend not only with higher housing prices but higher communications prices as well.

And I don’t see why wireless communications being spared the onslaught either. Dumping your landline may not be enough to escape increases in mobile phone rates designed not only to fund additional broadband deployment but to maintain universal service access to wire-line services by low income folks.

America was moving in the right direction by innovating access to the internet and in turn getting rid of a layer of onerous communications regulation in then form of state regulators. Net neutrality invites them back in.

 

Some clarity on what net neutrality is

The Twitter-verse is going bonkers over today’s report that the Federal Communications Commission is considering getting rid of net neutrality.  That view is erroneous. The concept or principle of net neutrality is not being abandoned. What Chairman Pai is proposing is that the FCC stop applying the telecommunications rules found in Title II of the Communications Act to enforce net neutrality.

In the late 1980s and early 1990s, internet protocol was being introduced into phone networks. Also, new local phone entrants such as cable companies and local network bypass companies were bringing new services into local markets. The issue was, how do we bill for the exchange of traffic ie data and voice traffic in such a way as to encourage competition. Regulators decided to lightly regulate the agreements that these companies entered into to exchange traffic. Some companies decided to exercise what was once called “bill and keep.” In other words, they wouldn’t bill each other for the exchange of traffic.

Over past 25 years, this traffic has increased. Phone networks needed the additional revenue to invest in networks that could keep up with traffic as well as compete with bypass providers like cable companies. Also, content providers and search engines were developing and spawning more traffic. Net neutrality grew out of this. In short, it has never been about democracy for the consumer. That’s a bullshit argument that a strategic communications expert made up in order to generate support from regulators to keep the exchange of traffic between the Googles and the Verizons low to non-existent.

The consumer is being used if you will as an excuse. Rates are going to stay where they are. The real issue is, smaller content providers who can’t pay broadband companies or content delivery companies the fees to move their traffic will fall to the wayside.

Consumers are being duped by Facebook and Google into supporting their argument for net neutrality. It is ironic that those companies use the “open internet” concept to design apps that spy on you….