WASHINGTON D.C. — Today, activists and multiple Internet companies have called on the Federal Communications Commission to continue treating broadband Internet providers as common carriers (effectively, public utilities) under Title II of the 1934 Communications Act. The FCC is currently taking public comments on the claims of legal authority made by previous chairmen in 2010 and 2015 to support net neutrality rules. Yesterday, TechFreedom held a press call on the Day of Action and the broader questions surrounding the future of net neutrality. A recording of the call is available here.
“This fight isn't really about net neutrality at all, but the FCC’s sweeping claims of authority over the Internet,” said Berin Szóka, President of TechFreedom. “For nearly a decade, the FCC has attempted to regulate the Internet — despite clear instructions from Congress that the Internet should remain ‘unfettered by Federal or State regulation.’ This was unnecessary from the start: the Federal Trade Commission, the Department of Justice, and state attorneys general could, working together, have policed the broadband market, just as they police the offline economy. Once this FCC reverses its sweeping claims of power over the Internet, which deprived the FTC of jurisdiction, the FTC will again be the lead agency in the layered approach to consumer protection that kept the net ‘neutral’ and thriving long before the FCC ever had rules on the books.”
“The courts won’t resolve this fight,” continued Szóka. “The FCC has gone to court three times, and is now heading for a fourth battle. Far from ‘blessing’ the FCC’s claims, the courts have either blasted FCC overreach or granted the FCC the same deference administrative agencies almost always enjoy. The Supreme Court has already clearly held that the FCC would enjoy such deference in disclaiming power over the Internet. That’s why the Pai FCC will undoubtedly prevail in court when the forthcoming order is challenged. TechFreedom has argued that such deference shouldn’t apply in the converse situation, when the FCC claims broad power. Three judges on the D.C. Circuit agreed with us, in their dissents. We’ll be asking the Court to take the case in September, but won’t be surprised if they don’t — simply because the FCC is already moving to resolve the case.”
“This fight won’t end until Congress legislates,” concluded Szóka. “Do we really want to spend another decade — or two — playing political ping-pong with the Internet? That’s what will happen until there’s legislation. The FCC and Congress won’t ever really be able to focus on pressing issues like easing broadband deployment and promoting competition.”
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We can be reached for comment at [email protected]. See our other work on net neutrality, including:
Tech Policy Podcast #174: Future of Internet Regulation (w/ FCC Chairman Ajit Pai)
Our explainer on the distinction between Title II and net neutrality
Our op-ed in Wired calling for legislation to resolve net neutrality
About TechFreedom:
TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.
Revived National Space Council Could Mean Space Policy Rethink
WASHINGTON D.C. — On Friday, June 30, 2017, President Trump signed an Executive Order reinstating within the White House the National Space Council, which was disbanded early in the Clinton Administration. The Council will be headed by Vice President Pence, who delivered a speech on July 6, 2017 at the Kennedy Space Center (KSC) outlining his vision for the Council, which will consist of the Secretary of State, Defense, Commerce, and Transportation, plus the Director of National Intelligence, the NASA Administrator, and the Chairman of the Joint Chiefs of Staff.
Vice President Pence said the Council will convene “before the end of the summer.” He also vowed to include the private sector in the Council’s activities; the Executive Order calls for establishing a Users’ Advisory Group made up of individuals from the private sector and academia.
“The administration has a unique opportunity to develop a cohesive national space policy that can cut across agency ‘stovepipes’ that have hindered American efforts in space,” said James E. Dunstan, TechFreedom Senior Adjunct Fellow and founder of Mobius Legal Group. “Once up and running, the Council’s first order of business should be to identify current regulatory impediments that are slowing down innovative private sector space activities, and in some cases, driving U.S. companies overseas to set up shop in countries with more benign regulatory regimes. This effort could parallel the FCC’s widely acclaimed Broadband Deployment Advisory Committee (BDAC).”
“The National Space Council could offer a long overdue re-think of U.S. space policy, but only if it's truly independent from other agency agendas,” cautioned TechFreedom President Berin Szóka. “If the Council is staffed solely from within other agencies, it won't have the clout necessary to break through some of the policies that have hindered U.S. space efforts, especially the entrepreneurial activities of companies seeking to create a whole new economy in outer space.”
“The Council’s overall mission should be nothing less than make America great at opening the space frontier again,” concluded Szóka. “As John Marburger, chief science advisor to President George W. Bush, said, the fundamental question is ‘whether we want to incorporate the Solar System in our economic sphere, or not.’ Absolutely, yes, and only private enterprise can do it. It’ll require not only removing regulatory barriers and that government works with the private sector instead of competing with it, but also a sound legal framework for space commerce. Congress started building that in late 2015 with legislation authorizing space mining, but now it must continue that process by crafting a light-touch legal framework to govern a wide variety of innovative activities — and the Council should help steer legislation in the right direction.”
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We can be reached for comment at [email protected]. See our other work on space law, including:
Part 1, Part 2, and Part 3 of our space law series on the Tech Policy Podcast
Our statement on a recent bill establishing a light-touch approach to space regulation
Wired op-ed: How the US Can Lead the Way to Extraterrestrial Land Deals
WASHINGTON D.C. — Yesterday, TechFreedom and the Competitive Enterprise Institute urged the FCC to modernize its media regulations to keep up with the rapidly evolving video content industry, especially with regard to its cable ownership limits and set-top box regulations.
The filing states:
OVD [online video distributor] services have thrived in an unregulated environment, relying on licensing copyrights directly with content owners on a voluntary basis—and operating outside the Communications Act’s 23-year-old MVPD framework. Many OVDs offer essentially the same network and cable programming that traditional MVPDs also distribute—but, increasingly, firms are producing popular, high-quality original video programming for purely online distribution. Their success is an example of positive impact on an industry by a lenient regulatory regime.
“Given fundamental changes in the video marketplace, the 1992 Cable Act looks increasingly outdated, and the courts said as much eight years ago, yet the last two FCC Chairmen refused to reconsider the agency’s approach,” said TechFreedom President Berin Szóka. “Competition is alive and well in the video marketplace, as cable, satellite, and over-the-top providers trip over themselves to get the best content and attract the most eyeballs. Cable’s share of the MVPD subscription video market has tumbled from almost 100% in 1992 to roughly half that today — which doesn’t even count the growing number of Americans, currently one in seven, who have cut the cord completely. There’s no reason that antitrust law can’t protect consumers in this market.”
“After twenty-one years, previous FCC struggles over set-top boxes look increasingly pointless,” continued Szóka. “The 1996 Telecom Act simply failed to anticipate that the video market would move beyond set-top boxes, which modern streaming has made increasingly obsolete. A new approach, like the DSTAC’s apps-based proposal, would ensure continued competition without tying businesses and consumers to an outdated technology. But Congress should also reconsider whether the entire statutory framework still makes sense.”
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We can be reached for comment at [email protected]. See our other work on the media regulation, including:
Our statement on the previous FCC’s proposal to regulate set-top boxes
A blog post on the FCC’s policy toward next-gen TV
Tech Policy Podcast #67: Killing the Cable Box
About TechFreedom:
TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.
WASHINGTON D.C. — Yesterday, TechFreedom joined the National Taxpayers Union and 21 other organizations and experts in calling on Congress to include meaningful air traffic control modernization in its upcoming reauthorization of the Federal Aviation Administration.
Previous attempts by the FAA to implement NextGen air traffic control methods, which include replacing outdated radar tracking with a new GPS system, have repeatedly resulted in delays and increased costs.
The letter states:
Through a new service-providing nonprofit organization governed by all stakeholders in the system, consumers will experience fewer travel delays, the movement of goods will become more efficient, aircraft will burn less fuel, capacity will expand, responsiveness and transparency will improve, political micromanagement will recede, costs will be easier to control and sustain, and the economy could experience tens of billions of dollars in growth. Meanwhile, all facilities and the pilots who depend on them will benefit from speedy technological innovations that the new, non-bureaucratic entity would encourage. Furthermore, the FAA’s focus on regulating overall aviation safety would actually be sharper.
“We cannot allow the modern American economy to be hamstrung by World War II-era technology in our air traffic control system,” said TechFreedom Executive Director Austin Carson. “Congress and the FAA have been unable to make improvements, and it’s clear at this point that their incentives are misaligned with the needs of the people they serve. It’s time for a new approach that will inject accountability and sustainability into the system to improve safety for airlines and reduce delays and cancellations for passengers.”
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We can be reached for comment at [email protected]. For more on air traffic control modernization, see:
Tech Policy Podcast #181: NextGen Air Traffic
FAQ on FAA modernization by the Competitive Enterprise Institute’s Marc Scribner
It's Official: EU Antitrust Law Isn't about Consumer Welfare
WASHINGTON D.C. — Today, the European Commission announced that it had imposed a record $2.7 billion fine against Alphabet. The EC alleges that Google violated European antitrust law by favoring its own Google Shopping service over rival comparison shopping services.
“There can no longer be any doubt: European competition is about protecting some companies against more successful ones, not about protecting consumers,” said Berin Szóka, President of TechFreedom. “The EC doesn't say a word about consumers. It simply claims that Google has hurt its rivals, who will now reap a windfall from this fine. American antitrust law grew out of that approach decades ago, now requiring hard evidence that consumers have actually been harmed — the kind of evidence that the EC apparently lacks. The EC insists that consumers want search results to take them to other shopping engines. But consumers can always search those sites. What they really want from Google is relevant product results. Such second-guessing of how Google evolves its services will cast a long shadow on how all big web companies design and improve their services.”
“The EC has declared Google ‘dominant’ in the search market, but never mentions Amazon or eBay, which have huge leads in the product search market,” continued Szóka. “Such line-drawing is arbitrary and will make less and less sense over time, as search services blur, as Facebook expands its own Marketplace, and as companies not yet founded invent entirely new ways of shopping. This fine will come to be remembered, with the EU’s decade-long prosecution of Microsoft, as yet another Bruxellois attempt to plan a future that never happened.”
“Perhaps the most dangerous precedent set today is the EC’s reliance on a single internal Google email about its shopping service — instead of economic evidence of consumer welfare,” concluded Szóka. “Subjective intent should be irrelevant for competition law. Internal emails and other ‘hot docs’ make exciting headlines, but what matters is solid economic analysis. For all the EC’s technocratic pride in its own expertise, it has opened the door to an ugly populism that will inevitably be used as a weapon for nationalist retribution against American web services that European consumers prefer.”
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We can be reached for comment at [email protected]. See our other work on antitrust issues, including:
Tech Policy Podcast #83: Europe’s War on Google
Our statement on the start of the EU’s lawsuit against Google in 2015
Closing the Door on Cuba Will Harm the U.S. and Stifle Tech
WASHINGTON D.C. — Today, President Trump is expected to announce his intent to reverse current policies that have opened up travel to and trade with Cuba. Beginning in late 2014, the previous administration began to thaw relations with the island nation, which has allowed:
U.S. companies to export certain consumer devices, telecommunications equipment, software, and applications to Cuba,
U.S. telecoms to establish subsidiaries or joint ventures with Cuban companies and enter into licensing agreements with them to provide connectivity, and
imports of Cuban-origin mobile applications into the U.S.
Nearly three-quarters of Americans approve of ending the trade embargo with Cuba, including 59% of Republicans. This week, TechFreedom joined Americans for Tax Reform and a coalition of free-market groups in urging the White House and Congress to support policies that would ease economic sanctions and travel restrictions on Cuba.
The letter states:
Engagement with other communist regimes has proven that American influence grows as trade develops. Countries like Vietnam, Burma, Laos and most famously China prove that previously hostile countries can move in a better direction when encouraged to trade with free nations. National security would greatly benefit from trade and travel relations with Cuba that will improve stability in the region.
Conversely, reversing the recent improvements in America-Cuba trade and travel would put thousands of U.S. jobs at risk. Your successful presidential campaign was correct in stressing the need to boost the job market; putting up more trade barriers runs counter to that goal. Congress must act to continue economic gains.
“American technology is a powerful democratizing force,” said TechFreedom Executive Director Austin Carson. “While over five decades of embargo failed to produce any tangible benefit, the past few years of eased restrictions have yielded significant dividends for both nations. Increased travel and trade has opened a window for Cubans to absorb the values of a free society through the use of technology, including property rights and free expression. Every year, more Cubans are getting online, and America should be leading our close neighbor into its digital future. Ceding this opportunity to Russia and China would harm our economy, hinder democratic progress, and reinforce the United States as a convenient scapegoat for the failures of the Castro regime.”
TechFreedom is a member of Engage Cuba, a national coalition of private companies, organizations, and local leaders dedicated to advancing federal legislation to lift the 55-year-old Cuba embargo in order to empower the Cuban people and open opportunities for U.S. businesses.
We can be reached for comment at [email protected]. See our other work on Cuba, including:
Our statement on the possibility of reversing the previous Administration’s Cuba policy
Tech Policy Podcast #137: Cuba’s Digital Future
A blog post on the state of Internet access in Cuba
A summary of the Cuban tech entrepreneur panel co-hosted by TechFreedom and Engage Cuba
About TechFreedom:
TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.
A Cold Shoulder to Cuba is Bad for Tech, Bad for America
WASHINGTON D.C. — Later this month, President Trump is expected to announce a plan to roll back reforms of America’s policy toward Cuba. In 2014, President Obama began to open diplomatic relations with Cuba, easing the restrictions on trade and travel with the island nation. The move received broad bipartisan support, but was opposed by Cuba hardliners.
Opening relations is particularly important for the American tech industry. While tech and telecom companies from many other countries are free to operate within Cuba, American companies are shut out by our own government. Cuban demand for tech services is high, and entrepreneurs are already innovating with the limited tech and Internet access currently available.
“The Internet is already improving the lives of the Cuban people and their relatives in the United States,” said Austin Carson, Executive Director of TechFreedom. “Platforms like Airbnb and Twitter are promoting property rights, free speech, and other democratic values. Cuban apps like A la Mesa and Revolico are creating a new generation of entrepreneurs, growing the island’s private sector.”
“One way or another, Cuba’s economic future is digital,” concluded Carson. “We’re separated by a mere 90 miles, but returning to a Cold War policy that failed for almost six decades is the best way to ensure that Russia and China — not the United States — will have the most influence on Cuba’s burgeoning tech and telecom sectors. We hope the administration considers the consequences for our economy and democracy before reversing the progress we’ve made.”
TechFreedom is a member of Engage Cuba, a national coalition of private companies, organizations, and local leaders dedicated to advancing federal legislation to lift the 55-year-old Cuba embargo in order to empower the Cuban people and open opportunities for U.S. businesses.
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We can be reached for comment at [email protected]. See our other work on Cuba, including:
Tech Policy Podcast #137: Cuba’s Digital Future
A blog post on the state of Internet access in Cuba
A summary of the Cuban tech entrepreneur panel co-hosted by TechFreedom and Engage Cuba
Light Touch to Space Regulation under New House Bill
WASHINGTON D.C. — Today, the House Subcommittee on Space will mark up the American Space Commerce Free Enterprise Act of 2017, representing the House’s next steps in establishing a light touch regulatory regime for innovative activities in outer space, such as sending private rovers to the Moon, conducting on-orbit satellite servicing, and mining asteroids.
The bill, just introduced by full committee Chairman Lamar Smith (R-TX), Subcommittee chair Brian Babin (R-TX), and Rep. Bridenstine (R-OK), also addresses the supposed “regulatory gap” identified by the Obama administration in response to a Congressional directive contained in the Commercial Space Launch Competitiveness Act (CSLCA), passed by Congress and signed by President Obama in late 2015.
“We applaud the House for moving forward on outer space regulation,” said Jim Dunstan, TechFreedom Senior Adjunct Fellow and founder of Mobius Legal Group. “These are necessary steps to ensure that we have a vibrant, growing space economy, and private investment will flow into this sector only if there is regulatory certainty. TechFreedom has helped champion the notion of a ‘Mission Certification’ approach instead of the more onerous and less transparent ‘Mission Authorization’ regime advocated by the Obama administration. The crucial difference between the two approaches is whether innovation and experimentation in space is the default, or whether it requires the government’s permission.”
Dunstan testified on May 23 before the Senate’s Space Subcommittee on the United States’ obligations to “authorize” and “continually supervise” the activities of its private citizens under Article VI of the 1967 Outer Space Treaty.
“The bill takes the right approach to governing innovative space activities,” said TechFreedom President Berin Szóka. “Americans have a fundamental right to move out into the High Frontier without faceless bureaucrats being able to stop them on a whim. As with any legislation, the ‘Devil’s in the details,’ and some changes may be necessary as this legislation moves forward. Standing up a completely new regulatory office will be a challenge, and Congress must both fund it and make sure it has the necessary clout in the sometimes mysterious ‘inter-agency process’ to ensure that Congress’ light touch intent is not throttled by entrenched interests that may not be supportive of private entities playing around in their formerly exclusive sandbox.”
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We can be reached for comment at [email protected]. See our other work on space law, including:
Tech Policy Podcast #165: Regulating the Universe
Our statement on the need for an update to US space law
Parts 1, 2 and 3 of our space law series on the Tech Policy Podcast with Jim Dunstan
WASHINGTON D.C. — Today, a group of 17 tech companies and trade associations called on the FCC to maintain a consistent approach in its rules regulating the use of the 3.5 GHz band of spectrum. In 2015, the Federal Communications Commission adopted rules that created the Citizens’ Broadband Radio Service (CBRS), a framework allowing for the commercial use of the 3.5 GHz band in order to expand and improve broadband access without interfering with government use of the spectrum.
The adopted rules kick-started investments from Ruckus Wireless and other companies who seek to share the spectrum in an efficient way. In addition to helping wireless carriers, the technology could allow businesses, hospitals, shopping malls, and other entities to deploy their own wireless networks for local use.
The letter states:
We write today to encourage the FCC to remain committed to the rules it adopted in 2015 and affirmed in 2016, and to avoid making changes that could undermine existing investments, market expectations, and the ability of operators and investors to rely on FCC rules. While we do not oppose modest adjustments to certain rules, major changes that would upset the three-tier structure or risk delays in commercial roll-out would run counter to the FCC’s broadband deployment goals.
“This kind of common-sense, market-driven policy is critical for keeping pace with the growing demand for spectrum,” said TechFreedom Executive Director Austin Carson. “The CBRS system has been a low-risk approach to facilitate investment and innovation by the tech industry on spectrum held but unused by government without interfering with the incumbent users of those bands.”
“Businesses need to make investment decisions on five to ten-year cycles — not from election to election,” continued Carson. “Making significant changes to these rules would jeopardize existing investments in 3.5 GHz technologies, and the resulting regulatory uncertainty could chill future investment. As the Internet of Things brings more and more devices online, the demand for spectrum to support these services will continue to increase. While no policy is ever perfect, we need to think carefully before tampering with measures that have proven effective in expanding the services available for consumers. We don’t oppose modest changes to license terms, but major changes that would upset the three-tier structure or delay rollout of new services would undermine the FCC’s broadband deployment goals.”
TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.
Tech Companies Propose Compromise on Section 702 Surveillance
Today, a coalition of more than 30 technology companies and trade associations urged Congress to reform the National Security Agency’s surveillance practices under Section 702 of the FISA Amendments Act of 2008 (50 U.S.C. § 1881a).
In a letter to Bob Goodlatte, Chairman of House Judiciary Committee, the companies outlined five key reforms:
Codify the NSA’s recent decision to end “about” collection, which swept up communications of Americans merely speaking “about” surveillance targets, (emailing an article about a foreign president, for example);
Require judicial oversight when government agencies “query” the 702 database to search U.S. persons’ communications gathered under Section 702;
Narrow the overly broad definition of “foreign intelligence information;”
Allow companies to disclose information about the number of intelligence requests they receive; and
Create transparency around the incidental collection and law enforcement use of U.S. persons’ communications.
“Americans trust technology companies with some of the most sensitive information about their lives, and they shouldn’t have to fear their government is breaking that trust,” said Austin Carson, Executive Director of TechFreedom. “These proposed reforms represent a good-faith compromise to one of the most significant issues Congress must resolve this year. They would maintain important national security tools while minimizing the impact on Americans. Greater transparency about the extent of surveillance of U.S. persons would help keep these programs accountable in the future, letting Congress and the public have their say.
“With concerns over surveillance reaching the Oval Office and a deadline to reauthorize the program, there has never been a better time to enact serious reforms,” concluded Carson. “Doing so will put our security operations on a more sustainable path and ensure concerns around surveillance don’t prevent new innovations or startups on our shores — or drive existing companies offshore, hurting both the U.S. economy and national security. We applaud the letter signatories for stepping up to the plate and look forward to working with the relevant committees to strike the right balance.”
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We can be reached for comment at [email protected]. See our work on privacy and surveillance, including:
Tech Policy Podcast #173: NSA Checks Itself?
Tech Policy Podcast #161: Spying on the World
Live Roundtable at Learn Liberty on Section 702 with guests from ACLU, R Street and the Naval Academy
WASHINGTON, DC — Today, TechFreedom and the Taxpayers Protection Alliance led a coalition of civil society groups in urging the Food and Drug Administration to embrace technological, innovative solutions to public health problems. In particular, the letter calls for the FDA:
to create an environment that encourages smokers to switch from traditional cigarettes to less harmful alternatives like electronic and heat-not-burn products which research shows are significantly less likely to cause the deadly conditions associated with burned tobacco products.
According to the bulk of the research conducted so far, vaping is 95% less harmful than smoking. Further, there is no evidence that secondhand vapor causes significant harm.
“Our public health challenges require a forward-looking approach from the FDA,” said Evan Swarztrauber, Director of Public Affairs at TechFreedom. “Americans are already experiencing an analog-to-digital disruption in public health. Wearables like Fitbit are changing the way we exercise, and telemedicine is expanding access to doctors. Companies like Zipline are using drones to deliver medicine in Rwanda, but they can’t do the same in the U.S. due to stringent regulations. Tobacco is facing a similar disruption, and the FDA should welcome innovation that allows smokers to switch from harmful analog products to demonstrably safer digitized alternatives.”
Background
Under the previous administration, the FDA issued a “deeming rule,” which requires any product that came to market after February 15, 2007 to undergo a premarket tobacco application (PMTA) process that, even by the FDA’s more conservative estimates, would cost around $6 million per product within the first two years of regulation. All but the largest businesses cannot afford to comply.
Early this month, the FDA announced that it would delay compliance deadlines for the deeming rule by three months to “allow new leadership...additional time to more fully consider issues raised by the final rule that are now the subject of multiple lawsuits in federal court.” In August of 2016, TechFreedom filed an amicus brief in support of Nicopure Labs’s challenge to the FDA rules.
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We can be reached for comment at [email protected]. See our other work on e-cig regulations, including:
A coalition letter urging Congress to pass the Cole-Bishop amendment to change the predicate date
Our amicus brief in support of a legal challenge to the FDA’s regulations
A blog post on the problems with the FDA deeming rules
WASHINGTON D.C. — Today, the Federal Communications Commission Chairman will vote to seek public comment on the FCC’s legal authority over the Internet. The Notice of Proposed Rulemaking invites comment on reversing the two legal claims that underlay the 2010 and 2015 Open Internet Orders — Section 706 and Title II — and what that would mean for the FCC’s ability to address net neutrality. The NPRM will also consider alternative approaches. The Commission could issue a final order this fall or winter. If, as expected, the order reverses both previous claims of legal authority, responsibility for policing net neutrality will, absent legislation, return to the Federal Trade Commission, the Department of Justice, state attorneys general, and private plaintiffs.
“Today’s vote isn’t about net neutrality, but the FCC’s legal authority over the Internet,” said Berin Szóka, President of TechFreedom. “Democrats and Republicans have long agreed on the core of net neutrality: ISPs shouldn’t block or throttle traffic, they should provide transparency about their service plans, and anti-competitive conduct should be punished. The real debate is over the FCC’s power. Over the past few years, some activists have conflated the ‘Open Internet’ with ‘Title II’ regulations designed for monopoly telephone and railroad networks. Such broad claims of power enable the FCC to go far beyond net neutrality — such as cracking down on copyright or regulating cybersecurity.”
In an op-ed for WIRED, Szóka called on Congress to pass legislation:
Really, it’s the failure of both parties to resolve relatively minor disagreements about how to police net neutrality that led the FCC to make broad claims of power over the internet.
...
Lawmakers should enshrine rules against blocking and throttling, enforced by either the FCC or the FTC, and deny the FCC a blank check over the internet. Until Congress acts, telecom Groundhog Day will keep replaying over and over and over.
“The FCC will no doubt receive a flurry of policy-related comments on today’s proposal, but the real audience for those should be Congress,” concluded Szóka. “The relatively minor differences among Democrats and Republicans on how to police net neutrality concerns can and should be worked out in legislation. Absent legislation, or a clear Supreme Court decision in still-pending litigation, the question of the FCC’s legal authority will simply keep ping-ponging back and forth depending on which party controls the FCC. Consumers and companies alike deserve a policy that protects an open Internet once and for all.”
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We can be reached for comment at [email protected]. See our other work on net neutrality, including:
An explainer on Title II and net neutrality
Our statement on our legal challenge to Title II, and why we will ask the Supreme Court to take the case
Our podcast interview with FCC Chairman Ajit Pai
About TechFreedom:
TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.
WASHINGTON D.C. — Today, the D.C. Circuit Court of Appeals denied rehearing of last year’s 3-judge panel decision upholding the FCC’s 2015 Open Internet Order. This 109-page decision clears the way for TechFreedom and other parties challenging the Order to take their case to the Supreme Court. Just as Senior Judge Williams (69 pages) dissented vociferously from the panel decision, Judges Brown (47 pages) and Kavanaugh (33 pages) wrote lengthy dissents blasting the FCC’s claims of its legal authority and arguing that the full appeals court should rehear the panel decision.
“We expected this ruling from the D.C. Circuit, which shifted dramatically in favor of deference to agency power under the previous administration,” said Berin Szóka, President of TechFreedom, the only Intervenor in the case, representing a number of Silicon Valley entrepreneurs and VoIP innovators whose services were banned by the FCC’s Open Internet Order.
“We’re gratified to see that both dissenting judges focused on the argument made by TechFreedom alone: that the FCC’s power over the Internet is a ‘major question’ on which courts ought not grant normal Chevron deference to the agency. We look forward to taking that question to the Supreme Court — and untangling the complicated technical and legal distinctions that the majority of the appeals court misunderstood.”
“We’ve always thought of this as a question for the Supreme Court to resolve,” continued Szóka. “Justice Gorsuch has, like Justice Thomas, been clear in his view that Chevron is purely judge-made doctrine that violates both the Constitution and the plain text of the Administrative Procedure Act. But we don’t need to kill Chevron to win in this case — merely persuade five Justices that it should not apply, and that the FCC has overstepped the authority granted by Congress. Several Justices across the political spectrum have declined to apply Chevron on ‘major questions’ like this one. Chief Justice Roberts upheld Obamacare despite finding that Chevron did not apply. And all four Justices on the left joined in the part of the Court’s 2014 decision in Utility Air Regulatory Group striking down the EPA’s attempt to effectively rewrite its statute. Another trans-ideological coalition could well block the FCC’s overreach.”
“We hope the Court will grant cert in this case when it reconvenes in early October after its summer recess,” concluded Szóka. “If the high court takes the case, Chairman Pai should allow the Justices to resolve critical questions about the FCC’s authority. We’ve always supported legislation to resolve the ‘net neutrality’ fight but a Supreme Court ruling may be the only way to motivate Democrats to negotiate after two years of rebuffing Republican offers to compromise. If the FCC doesn’t let the Supreme Court have its say (by next spring), there’s a serious risk that no legislation will pass after the FCC hands broadband back to the FTC and states. The next Democratic FCC would re-reclassify broadband under Title II, and we’d wind up exactly where we are now — two to three years into the next Democratic Administration. We can’t afford to keep playing policy ping pong with the Internet until then.”
Today’s decision focused on Title II, and, unsurprisingly, did not address whether Section 706 confers any independent regulatory authority on the FCC. The Supreme Court could take up both questions.
TechFreedom was joined by co-Intervenors Cari.Net, Jeff Pulver, Scott Banister, Charles Giancarlo, Wendell Brown and David Frankely. Collectively, they are represented by the law firm of Boyden Gray & Associates. Led by C. Boyden Gray, White House Counsel to President George H.W. Bush, this boutique law firm has litigated several of the most important cases about the separation of powers between Congress and the administrative state.
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We can be reached for comment at [email protected]. See our other work on net neutrality, including:
Tech Policy Podcast #172: The Future of Internet Regulation (w/ FCC Chairman Ajit Pai)
Our statement on the need for a legislative compromise over net neutrality
Our statement on our appeal over the DC Circuit’s decision upholding Title II reclassification
A summary of our opening brief challenging the FCC’s order
Our first intervenor brief challenging the OIO
Our reply brief arguing against the Order
Our motion to intervene, explaining the harm suffered by our co-Intervenor entrepreneurs
WASHINGTON D.C. — Today, Federal Communications Commission Chairman Ajit Pai laid out his vision for how to address demonstrable “net neutrality” concerns without stifling innovation or entrusting the FCC with overly broad powers. Tomorrow, Pai will release the draft text of a Notice of Proposed Rulemaking, which Pai will put on the agenda for the Commission’s May 18 Open Meeting. The NPRM will seek comment on reversing the two claims of legal authority that underlay the 2010 and 2015 Open Internet Orders — Section 706 and Title II — and what that would mean for the FCC’s ability to address net neutrality. The NPRM will also invite comment on alternative approaches. The Commission could issue a final order this fall or winter. If, as expected, the order reverses both previous claims of legal authority, responsibility for policing net neutrality will, absent legislation, return to the Federal Trade Commission, state attorneys general, and private plaintiffs.
“The debate of the last decade has never really been about ‘net neutrality,’ but the FCC’s sweeping claims of power over the Internet,” said Berin Szóka, President of TechFreedom. “In 2008, the Republican FTC was ready to bring action against Comcast for throttling BitTorrent traffic in 2007 — a clear ‘net neutrality’ violation. But the Republican FCC made vague claims of ‘ancillary jurisdiction’ over the Internet to support an attempt to police net neutrality case by case. This shut the FTC out of the discussion and needlessly began a decade of litigation over the FCC’s authority. Internet freedom advocates presciently warned that this was a ‘Trojan Horse’ for further interventions, like copyright crackdowns. But once Democrats took over the FCC, that well-deserved skepticism disappeared. Whatever party is in charge, we simply can’t trust the FCC not to abuse its powers.”
“There has always been bipartisan consensus on the basics of net neutrality,” continued Szóka. “It was Republican Chairman Michael Powell, building on the academic work of Tim Wu, who laid out four principles of ‘Net Freedom’ in 2004. His successor, Republican Kevin Martin, turned those principles into the Open Internet Policy Statement in 2005. The Republican-controlled House passed a new Communications Act in 2006, which would’ve given the FCC authority to enforce its Policy Statement. In 2010, centrist Democrats (and Google and Verizon, too) wanted to do a legislative deal, but Republicans balked. Since 2015, it’s Democrats who’ve stonewalled Republican efforts to compromise. Compromise was made increasingly difficult as the goalposts for net neutrality moved to include things, such as interconnection, that even former Chairman Tom Wheeler once insisted were unrelated.”
“Telecom policy shouldn’t swing like a pendulum between elections, and the FCC can’t resolve this debate on its own,” concluded Szóka. “Only the Supreme Court can finally say what existing telecom law means, and only Congress can finally decide what it should mean. A challenge to Title II is still pending, and it may make its way to the Supreme Court by early October. Whatever happens on the legal front, this debate won’t end until Congressional Democrats come to the table and negotiate over legislation. Chairman John Thune (R-SD) of Senate Commerce, and his counterpart in the House Greg Walden (R-OR), have consistently supported a legislative compromise, regardless of whether it was Wheeler or Pai in charge of the FCC. Such willingness to negotiate in good faith is hard to come by in today’s political climate, and it would be a shame to waste. Resolving this debate would allow government, industry, and civil society to move on to areas of profound bipartisan consensus, such as bridging the Digital Divide.”
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We can be reached for comment at [email protected]. See our other work on net neutrality, including:
Our statement on the need for a legislative compromise over net neutrality
Our statement on our appeal over the DC Circuit’s decision upholding Title II reclassification
A summary of our opening brief challenging the FCC’s order
California DMV’s Privacy Rule Won’t Work for Autonomous Vehicles
WASHINGTON D.C. — Yesterday, TechFreedom joined comments filed with the California Department of Motor Vehicles on the Driverless Testing and Deployment Regulations the state proposed in March — the third draft proposed since 2015. In October, we joined R Street Institute, the Competitive Enterprise Institute, and the International Center for Law and Economics in comments on the second draft. Yesterday’s comments filed by the same coalition reiterate many of the same concerns. In particular, the information privacy rule (now Section 228.24) remains essentially unchanged.
“California’s fundamental mistake is trying to create a bespoke privacy rule just for autonomous vehicles,” lamented Berin Szóka, President of TechFreedom. “The DMV could, and should have, incorporated the largely bipartisan approach developed by the Federal Trade Commission, which focuses on respecting consumer expectations. Instead, the regulation would draw a bright line, requiring users to opt-in to any collection of information that is ‘not necessary for the safe operation of the vehicle’ and that is not anonymized. Unfortunately, there is a wide range of other circumstances in which user consent would rightly be inferred under the FTC model, including product and service fulfillment, internal operations, but most critically, insurance. Regulators may or may not decide, well after the fact, that such information is ‘necessary for the safe operation of the vehicle,’ but it absolutely is necessary for autonomous vehicles to work en masse.”
“California’s consent requirement is like forcing a customer to read every page of the vehicle manual before buying a car,” continued Szóka. “But it’s even worse than that. The ‘manual’ here would describe how the Internet of Things meshes with the arcane world of insurance. And California goes even further, proclaiming that no one shall be be ‘denied’ use of an autonomous vehicle if they do not consent to the collection of such information. Yet California has already wisely required that all drivers carry insurance, and insurance markets for autonomous vehicles will not work if users have to opt-in to sharing of information necessary to process insurance claims. California’s conception of what information is ‘necessary’ is simply too narrow to allow the autonomous vehicle industry to function.”
“Future California regulators won’t be able to claim that, ‘Nobody knew that autonomous vehicle information sharing could be so complicated,’ because we’ve explained this problem twice,” concluded Szóka. “Privacy is just one of many difficult issues to be worked out in governing the vehicles of the future. Safety regulators should focus on the issues they know best — safety — and leave information privacy to the experts at the FTC and the state attorney general’s office. But if the DMV won’t do that, it should at least expand its concept of ‘necessary’ information so that the opt-in mandate focuses on things consumers really don’t expect, like their precise geolocation data being used for marketing. And if the DMV does neither, this half-baked approach to privacy will delay the deployment of vehicles that could save tens of thousands of lives every year in avoidable accidents, reduce carbon emissions, and make our cities more livable for all.”
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We can be reached for comment at [email protected]. See our other work on autonomous vehicles, including:
Tech Policy Podcast #149: Do Smart Cars Need Smart Roads?
Tech Policy Podcast #134: California Regs on Self-Driving Cars
Tech Policy Podcast #114: The Internet of Cars
About TechFreedom:
TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.
WASHINGTON D.C. — Today, TechFreedom joined a coalition of consumer rights, human rights and civil liberties organizations in calling on the Federal Communications Commission to repeal a rule requiring phone companies to retain telephone call records for 18 months. In August 2015, TechFreedom signed a similar petition urging the FCC to repeal an outdated regulation that exposes consumers to privacy risks, stifles innovation and reduces market competition.
The letter, led by the Electronic Privacy Information Center, concludes:
The data retention rule no longer serves a useful purpose. Carriers have all but abandoned per-call billing in favor of bundled and flat-rate service plans. The rule’s reliance on an outdated billing model increases costs, stifles innovation, and inhibits market competition by preventing carriers from competing on privacy.
“The FCC’s data retention mandate is woefully outdated,” said Ashkhen Kazaryan, Legal Fellow at TechFreedom. “This regulation has eliminated any incentive for telecom companies to retain data they don’t need and that they struggle to keep secure — even though it would be cheaper for the carriers and preferable for users. Repealing this rule would allow carriers to compete on privacy and data security.”
“Mandating that carriers keep sensitive, unnecessary information puts customers’ privacy at risk,” said Kazaryan. “Carriers are obliged to hold sensitive detailed information about the communications of everyday Americans. Collecting all telephone records ‘just in case’ law enforcement needs them makes customer data vulnerable to the kind of massive security breaches we’ve seen in government systems.”
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We can be reached for comment at [email protected]. See our other work on privacy, including:
Our blog post on a recent bill to protect data privacy at the border
Our statement on the need for email privacy reform
WASHINGTON D.C. — Today, the Federal Communications Commission voted to remove barriers to broadband by closing two dockets and opening two more, all focused on broadband infrastructure deployment.
The Commission voted on two items. First, an Order on Reconsideration will allow providers to fully recover their investment in deploying broadband to high-cost rural areas from the Connect America Fund. Second, a Report and Order will remove certain legacy price regulation on business data services (BDS) (wholesale broadband for businesses) in areas with sufficient competition, while maintaining vital regulations in areas lacking competition in order to protect small businesses and other customers.
The Commission also voted to open two new dockets on infrastructure deployment that will inform the work of the FCC’s new Broadband Deployment Advisory Committee. The wireless infrastructure NPRM will take comment on barriers to deployment of wireless broadband, especially 5G, which requires hugely larger numbers of small cell antennas. The wireline infrastructure item proposes multiple steps to remove bureaucratic obstacles to new broadband infrastructure at all levels of government and assist in the transition from legacy copper networks to fiber, while inquiring about further steps the FCC can take to ease deployment.
“Barriers to broadband deployment exist at every level of government,” said TechFreedom President Berin Szoka. “Building next-gen networks requires access to poles, ducts, rights-of-way, and other government-owned assets, which means dealing with cumbersome local approval processes and paying often exorbitant fees. For the past eight years, the FCC lamented a lack of competition and deployment, but did little about the underlying problem of dealing with local governments. Wheeler and especially Commissioner Rosenworcel deserve credit for the 2014 wireless infrastructure order — one of few major items to earn bipartisan support — but the Wheeler FCC did not address fees at all or red tape for wireline deployment, and dragged its feet on the IP Transition. With today’s inquiries, Pai is finally following up on these and other deployment barriers identified by the 2010 National Broadband Plan.”
“Removing price controls on business data services will encourage investment in the broadband used by businesses large and small across America, from shopping malls to office parks, and mom-and-pops,” continued Szóka. “Pai is returning to the approach started under Democrat Bill Kennard, President Clinton’s second FCC Chairman: encouraging deployment of competing networks instead of imposing price controls on wholesalers under the assumption that more deployment won’t happen anyway. The cost of wiring every building might seem prohibitive in some business districts, but 5G service will make new competition possible by bypassing the internal wiring problem with multi-gigabit wireless. Today’s vote will accelerate deployment of both 5G technology and more fiber.”
“Pai has also begun fixing the FCC’s convoluted program for subsidizing broadband deployment,” concluded Szóka. “Wheeler’s reforms to the Connect America Fund had the unintended effect of leaving high-cost areas stranded without broadband access. Today’s bipartisan vote fixes that rule, ensuring that broadband carriers don’t get penalized for trying to deploy to the most remote, hard-to-connect parts of America.”
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We can be reached for comment at [email protected]. See our other work on broadband infrastructure:
Our statement on the previous FCC’s BDS price regulation proposal
Tech Policy Podcast #99: Controlling the Price of Business Broadband
Our letter in support of Dig Once and other broadband deployment policies
About TechFreedom:
TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.
