Title II

Statement On Democratic Senators’ Press Conference Supporting the FCC’s Net Neutrality Rules

Posted by | Broadband Internet, Net Neutrality Series 2.0 | No Comments

Washington, DC, February 7, 2017 – Fred Campbell, director of Tech Knowledge, issued the following statement regarding today’s press conference in which Democratic senators campaigned for the Federal Communications Commission’s open internet regulations:

“Obama’s FCC didn’t settle the issue of internet regulation. The FCC opposed bright-line net neutrality rules during the Bush Administration, adopted them during the Obama Administration, and is expected to change course again.

Without new Congressional legislation, the FCC’s net neutrality rules will keep swinging like a pendulum with every presidential election. A lasting approach to net neutrality must come from the democratic process in Congress, not executive fiat.”

Tech Knowledge promotes market-oriented technology policies on behalf of the public interest. Additional information about Tech Knowledge can be found on our website, techknowledge.center.

Statement on Petition to Stay FCC Privacy Rules

Posted by | Privacy | No Comments

Washington, DC, January 30, 2017 – Fred Campbell, director of Tech Knowledge, issued the following statement regarding a petition to stay the Federal Communications Commission’s broadband privacy restrictions that was filed by a group of internet associations.

“The previous FCC’s decision to adopt a discriminatory approach to broadband privacy was driven by its desire to protect particular industry players, not consumers. The agency’s biased rules inhibit the ability of ISPs to compete with edge providers in the internet data market without providing any meaningful privacy protection.

If the rules were stayed, ISPs would abide by the same privacy protections as all other companies under the Federal Trade Commission’s established legal framework, which protects consumer privacy while promoting competition in the data market. Consistent privacy rules and additional competition would be a win-win for broadband consumers.”

Tech Knowledge promotes market-oriented technology policies on behalf of the public interest. Additional information about Tech Knowledge can be found on our website, techknowledge.center.

FCC’s Proposed Cybersecurity Regulation Fatally Flawed

Posted by | Broadband Internet, Cybersecurity, Public Safety | No Comments

For most people, the hardest part of their last few days on the job is finding the motivation to tie up loose ends before they leave. This should have been easy for the former chairman of the Federal Communications Commission (FCC), Tom Wheeler, who left the agency upon President Trump’s inauguration. After Trump’s election victory, congressional leadership advised Wheeler to focus his staff’s energies on consensus and administrative matters and to avoid complex or controversial issues.

Wheeler didn’t take their advice. Just two days before Trump’s inauguration, Wheeler’s FCC issued a white paper asserting that the agency (1) has jurisdiction to comprehensively regulate cybersecurity for commercial communications networks and (2) should regulate the cybersecurity practices of broadband internet service providers (ISPs) and other sectors of the communications industry.

The FCC’s report is not only complex and controversial, its key conclusions are wrong. Like the analysis in so many other items the Wheeler FCC issued, the report just presumes the agency has authority to do whatever it likes with regard to cybersecurity. It doesn’t. Congress has determined that the Department of Homeland Security (DHS) is the appropriate forum for addressing cybersecurity, not the FCC.

The FCC’s view of the cybersecurity marketplace is also based on something other than reality. Compelling evidence shows that market forces are in fact incentivizing substantial investment in the deployment of cybersecurity protections without the FCC’s interference. Read More

Tech Knowledge Statement on FCC’s Business Data Services Proposal

Posted by | Broadband Internet, Regulatory State | No Comments

Haymarket, VA, October 7, 2016 – Fred Campbell, director of Tech Knowledge, issued the following statement regarding the FCC’s proposal to impose new price regulations and classify packet-based business data services as a common carrier service:

“The FCC’s proposal to subject packet-based business data connections to its Title II jurisdiction reveals the terrible truth about Wheeler’s approach to net neutrality — the alleged need to protect edge providers using Title II was merely an excuse for the FCC to regulate the internet from end-to-end just like it once regulated the plain old telephone network.

There is no edge provider justification for the FCC to dictate terms in commercial disputes involving data connections for big businesses. The proposal is nothing more than 1930’s style government intervention for the sake of helping businesses the current administration favors at the expense of those it doesn’t. The other commissioners should reject Wheeler’s latest attempt at government economic planning 2.0 and let all carriers compete on an equal footing.”

Tech Knowledge promotes market-oriented technology policies on behalf of the public interest. Additional information about Tech Knowledge can be found on our website, techknowledge.center.

Tech Knowledge Statement On Federal Court’s Net Neutrality Ruling

Posted by | Broadband Internet, Freedom of Speech, Net Neutrality Series 2.0 | No Comments

Haymarket, VA, June 14, 2016 – Fred Campbell, director of Tech Knowledge, issued the following statement regarding the D.C. Circuit Court of Appeals decision upholding the FCC’s most recent net neutrality rules:

“For the first time in history, a federal court has granted the government the power to regulate the press as if it were a public utility. The First Amendment’s protection for the freedom of the press has never been in greater jeopardy.

Make no mistake — this opinion marks a fundamental change in First Amendment law. Until today, the federal courts interpreted the First Amendment as prohibiting the FCC from regulating the transmission of video content and the distribution of newspapers as common carriage. Today’s decision abandons this protection for the freedom of the press and gives government the right to censor the news by imposing restrictions on its distribution.

This decision is a victory for government censorship and a stunning defeat for the free press. It’s now up to the Supreme Court to protect the First Amendment principles that form the foundation of a free and open society.”

Tech Knowledge promotes market-oriented technology policies on behalf of the public interest. Additional information about Tech Knowledge can be found on our website, techknowledge.center.

Why The FCC’s ‘Unlock The Box’ Plan Is Doomed To Fail

Posted by | Video | No Comments

Yesterday Tech Knowledge filed ex parte letters in the FCC’s ‘Unlock The Box’ proceeding that summarize the legal infirmities of the agency’s proposal to regulate set-top boxes. The letters conclude the FCC’s plan is doomed to fail in a legal challenge because:

  • The FCC plan would require MVPDs to offer their video services for resale by third-parties on a common carriage basis in violation of sections 542(c) and 153(11) of the Communications Act, which expressly prohibit the FCC from regulating MVPDs as common carriers.
  • The FCC plan would violate MVPDs’ First Amendment rights by restricting their editorial discretion in a manner that cannot be justified under intermediate or strict scrutiny.
  • The video interface between consumers and MVPD programming is itself core speech that is entitled to strict First Amendment scrutiny; and even if the video interface were not considered core speech in and of itself, an MVPD’s interface would still be entitled to First Amendment protection due to its close nexus to an MVPD’s exercise of editorial discretion with respect to its underlying video programming.
  • The FCC’s competitive justification for abridging MVPDs’ First Amendment rights is insufficient to demonstrate harm justifying the elimination of editorial discretion by a particular class of the press because the FCC has already found the market for MVPD services (which necessarily encompasses navigation devices) effectively competitive. The First Amendment requires the FCC to “explain[] why, in the pursuit of diversity, the independence of competing vertically integrated MVPDs is inferior to the independence of unaffiliated [navigation device companies].” Time Warner Entm’t Co., L.P. v. F.C.C., 240 F.3d 1126, 1139 (D.C. Cir. 2001).
  • The plan also burdens far more speech than necessary to remedy whatever competitive issues might exist with respect to navigation devices, because there are readily-available alternatives that would eliminate any need for a separate navigation device (or separate navigation software) without abrogating MVPDs’ editorial discretion (e.g., the app-based proposal).
  • Shifting control over the video interface from MVPDs to Internet software companies would threaten the free flow of information and ideas by concentrating control over the video interface in the hands of a few, giant Internet software companies. Internet software companies would have the same incentives as MVPDs to influence consumer behavior in the video marketplace but would have far greater ability to do so than MVPDs, because the largest Internet software companies (1) have greater scale and ability to reach consumers than MVPDs, but (2) would not be subject to the FCC’s regulatory constraints on MVPD market structure or public interest obligations (e.g., political advertising disclosures).

Shining The Spotlight On The FCC: How Rules Impact Consumers And Industries

Posted by | Broadband Internet, Regulatory State | No Comments

The American Action Forum has posted a video of last week’s event examining current regulatory issues at the FCC. The event was keynoted by FCC Commissioner Mike O’Rielly, who was followed by a panel discussion moderated by Rob Pegoraro (Yahoo Tech) with panelists Fred Campbell (Tech Knowledge), Meredith Rose (Public Knowledge), and Will Rinehart (American Action Forum). You can watch the video HERE.

The First Amendment and the Internet: The Press Clause Protects the Internet Transmission of Mass Media Content from Common Carrier Regulation

Posted by | Broadband Internet, Freedom of Speech | No Comments

The Nebraska Law Review has published an article written by Fred Campbell that explains how the Press Clause of the First Amendment protects the Internet transmission of mass media content from common carrier regulation. The complete article is available HERE.

Tech Knowledge Statement On Netflix Throttling Admission

Posted by | Broadband Internet, Statement, Video | No Comments

Haymarket, VA, March 25, 2016 – Fred Campbell, director of Tech Knowledge, issued the following statement regarding Netflix’s admission that its been secretly throttling its wireless video traffic on a discriminatory basis:

“When I first raised concerns about Netflix’s cynical manipulation of Internet traffic flows in this analysis, I thought the FCC would ask Netflix some questions like these. Instead, it was a Canadian regulator who used language from my initial analysis (in this hearing) to ask Netflix whether it was throttling traffic to aid its net neutrality lobbying efforts, and Netflix’s director of global public policy who said, ‘The allegations that we slowed our traffic or otherwise [are] responsible for degrading users’ service are categorically untrue.’

Yesterday, however, staff at the Wall Street Journal reported that Netflix now admits that it has been secretly throttling its video traffic for more than five years in a manner that is patently discriminatory.

Make no mistake, the importance of this revelation for U.S. Internet policy goes well beyond Netflix and the all-too-common practice of corporate hypocrisy in Washington. Policymakers in the U.S. have systematically excluded Netflix and all other “over-the-top” companies from Internet, privacy, and video regulations that would otherwise apply based on the presumption that over-the-top companies lack the incentive or ability to engage in discriminatory or anticompetitive behavior that could harm consumers or competition. Netflix just proved that presumption is dead wrong.

The public policies that govern communications systems should be purposeful, not haphazard. They should be applied in a way that’s even-handed, not in a way that treats one set of industry participants better than another. They should be based on credible, reliable data, not anecdotal evidence offered by large corporations seeking government favors. And when there are credible allegations that a company has secretly engaged in practices that have been deemed harmful to consumers and competition, policymakers should investigate those allegations in good faith, not ignore them.

Now that Netflix has finally admitted the truth, Congress, the FCC, and the FTC should fully investigate Netflix’s secret and discriminatory throttling practices.”

Tech Knowledge promotes market-oriented technology policies on behalf of the public interest. Additional information about Tech Knowledge can be found on our website, techknowledge.center.

The FBI, FCC, And You: Whose Data Is It Anyway?

Posted by | Broadband Internet, Privacy | No Comments

Federal Communications Commission (FCC) Chairman Tom Wheeler is proposing discriminatory Internet marketing rules — rules that restrict the marketing efforts of Verizon FIOS and other Internet service providers (ISPs) only while giving Google and other big data companies in Silicon Valley an anticompetitive advantage in online advertising. Wheeler claims discriminatory marketing restrictions are intended to protect the privacy of “your data,” including “the websites that a customer visits, how often they visit them, and the amount of time they spend on each website.”

It appears Wheeler didn’t get the memo from the Federal Bureau of Investigation (FBI) and other law enforcement agencies about the law governing privacy and ownership of communications addressing and routing volumes. According to a line of federal court cases dating back to the nineteenth century, users of communications networks don’t have a “justifiable,” “reasonable,” or even a “legitimate expectation of privacy” in that type of data. In fact, it’s not “your” data.

Consumers may have an expectation of privacy in the content of their communications, but that expectation doesn’t reasonably extend to the addresses or volumes of their communications. The federal courts have held that consumers don’t have a legitimate expectation of privacy in the addresses they write on sealed letters and packages sent through the U.S. mail or their weight, the numbers they dial on their telephones or the number of calls they make, or the to/from addresses of their email messages and IP addresses of the websites they visit or the volume of the data transmitted. The Supreme Court has held that an expectation that this type of information should be private “is not one that society is prepared to recognize as ‘reasonable.’” Read More