Tom Wheeler

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 Reply Comments in FCC ‘Set-Top Box’ Proceeding

Posted by | Broadband Internet, Video | No Comments

On Monday, Tech Knowledge filed the following reply comments at the Federal Communications Commission in its proceeding to impose wholesale unbundling regulations on cable and satellite video programming in the guise of regulating set-top boxes. The complete comments as filed can be downloaded from the FCC’s website in PDF format HERE. (Note, the HTLM version of the reply comments printed below does not contain the footnotes or appendices provided in the PDF version that was filed at the FCC.)

Executive Summary

The arguments made by proponents of the Wholesale Proposal affirm that its true purpose is to limit MVPDs’ ability to exercise editorial discretion by forcibly overwriting MVPDs’ video interfaces. The Communications Act, previous FCC findings, judicial precedent, and scientific studies in behavioral economics all demonstrate that the interface between consumers and MVPDs’ video programing is itself a form of speech or is otherwise entitled to First Amendment protection because it is intrinsic to MVPDs’ exercise of editorial discretion.

Consider Amazon’s example in its comments in this proceeding — that the Wholesale Proposal would enable Amazon to suggest that an MVPD subscriber watch Amazon’s own programming rather than an MVPDs’ program. In the context of the printed news, that would be equivalent to a rule permitting the Washington Post (a newspaper owned by Amazon CEO Jeffrey P. Bezos) to slap a new front page on the Washington Examiner that contains the Post’s chosen headlines and a message directing Examiner subscribers to read the Post instead. Though the Examiner’s subscribers would still have access to the Examiner’s content as a technical matter (by turning the page), the rule would have the effect of compelling the Examiner to publish (or subsidize the publishing of) that which it does not want to publish (the Post’s headlines and advertising messages) while effectively overriding the Examiner’s editorial decisions about what should be considered the “front page news” of the day. Similarly, the Wholesale Proposal would force MVPDs to publish that which they do not want to publish (i.e., mandatory “information flows”) in order to enable third-parties to direct MVPD subscribers to watch third-party programming (and its associated advertising) that displaces MVPDs’ own decisions regarding what programming should be highlighted on the video interface’s “front page.” Whether applied to print or video, such a rule would cut straight through the heart of the First Amendment’s guarantee of press freedom.

Shifting control over the video choice architecture (and corresponding profits) from MVPDs (and the video programming vendors with whom they negotiate content licenses) to Internet software companies (and their affiliated video programming vendors) 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. Read More

The FCC Must Fix Its Process For Receiving Public Input Before Driving Ahead

Posted by | Broadband Internet, Privacy, Video | One Comment

While defending his decision to take jurisdiction over broadband privacy issues from another federal agency, Federal Communications Commission Chairman Tom Wheeler proclaimed the FCC “didn’t just fall off the turnip truck.” Perhaps because he had already driven it into the ditch. With this Chairman at the wheel of the FCC, the nation’s expert agency in charge of regulating the Internet, the agency can’t even keep track of public comments filed over the Internet.

During its net neutrality proceeding in 2014, the FCC omitted nearly 680,000 comments from its initial data files due to “glitches” in its electronic comment system. As quickly as the FCC is rushing to impose new regulations on Internet privacy and Internet video, one would think the FCC would have solved its problems with receiving public input by now.

Instead, it appears things have gotten worse. Comments aren’t even showing up in the FCC’s electronic system due to a “74,000-comment backup” across all FCC dockets. In the meantime, the public can’t see these comments or attempt to respond to them. If Senator Mike Lee hadn’t asked Chairman Wheeler about the FCC’s information technology problems during a hearing on Wednesday, the public likely wouldn’t have known that the FCC comment systems aren’t working properly. Read More

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 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

Tech Knowledge Statement On FCC Proposal To Modify Regulations Governing Set-Top Boxes

Posted by | Regulatory State, Video | No Comments

For Immediate Release

 

Tech Knowledge Statement On FCC Proposal To Modify Regulations Governing Set-Top Boxes

Haymarket, VA, February 18, 2016 – Fred Campbell, Director of Tech Knowledge, released the following statement with respect to the Federal Communications Commission’s adoption at its February open meeting of a proposal to modify regulations governing cable and satellite set-top boxes:

The slogan for today’s FCC meeting, “Unlock The Box,” isn’t about unlocking cable and satellite set-top boxes. It’s about shifting some of the value of their underlying programming rights to Google and other powerful Internet companies.

In the STELA Reauthorization (STELAR) Act of 2014, Congress charged the FCC with establishing a working group of technical experts to recommend standards for promoting the “competitive availability of navigation devices,” not search engines and programming guides. But promoting Google’s ability to add cable and satellite programming packages to its online monopoly search engine and to create Google-branded programming guides is what the FCC’s proposed plan would ultimately do. The plan would allow Google to rebrand other video service providers’s programming packages as Google’s own and permit Google to track the behavior of video consumers in order to enhance Google’s advertising and other affiliated businesses.

The expert group established by the FCC at Congress’s behest recommended two different approaches — the approach proposed by the FCC today as well as an apps-based approach that would promote the competitive availability of navigation devices without compromising the value of existing programming packages or the contractual rights of programmers. But the fact sheet released by Chairman Wheeler in January didn’t mention the expert committee’s apps-based recommendation. The fact sheet informed the public about the Chairman’s preferred plan only, as if the only choice were between his plan or nothing at all.

Operating a government agency in this sort of shade does not serve the public interest. The public deserved to know about both options before editorial staffs around the nation began proclaiming their support for the only option the Chairman chose to present.

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

What Does ‘Competition’ Mean At The FCC?

Posted by | Regulatory State, Wireless | No Comments

The question I would ask Federal Communications Commission Chairman Tom Wheeler at tomorrow’s congressional oversight hearing is, how does the agency define “competition”? The answer to this one question—the FCC does not have a definition of competition that it applies consistently—is a symbol of everything that is wrong with the agency.

Chairman Wheeler chose “competition, competition, competition” as his guiding principle without defining what “competition” means at the FCC. Relying on a guiding principle with no specified meaning is like steering a ship with no rudder: There is no telling where the ship (FCC) will end up after it leaves port (e.g., initiates a new regulatory proceeding).

The FCC’s rudderless approach to competition results in discriminatory regulations that erode public trust in the agency’s impartiality and the rule of law. For example, scholars on both sides of the aisle have long recognized that the FCC’s use of its merger authority “lead[s] to one set of rules for those who have merged and another set of rules for similarly situated parties who have not.” Even worse, discriminatory regulations that are adopted in the name of “competition” during FCC merger review are not practically subject to judicial review. Read More