Tales of the Sausage Factory:
What (Not) to Wear on Election Day; or, Would You Rather Vote or Be a Test Case.

As we run the home stretch to Election Day 2020 (November 3! Don’t forget to vote! And vote down ticket, too! Local races are important, as are ballot question! You can also volunteer to be an election judge, or take part in voter protection projects. Make every vote count by making them count every vote!)

 

O.K., that opening line got hijacked by PSAs. Let’s start again.

 

As we get closer to election day, we have a fun decision to make: what to wear to the polls. I don’t just mean coordinating your mask with your outfit. I mean whether wearing a t-shirt that expresses some suitable sentiment depending on your politics might violate your state’s election rules. The situation is especially complicated this year as this is the Presidential election year since the Supreme Court decided MN Voters Alliance v. Mansky (2018) (opinion here). While this is not legal advice, I thought it might be helpful given the current circumstances (especially the likelihood of extremely aggressive poll watchers eager to challenge folks advertising their sympathy for the other side and a shortage of election judges due to COVID to resolve the challenges quickly) to review some basics to avoid hassle. Sure, if you prefer to be a test case rather than necessarily get to vote, you should wear that “Ruth Sent Me” or “Blue Lives Matter” t-shirt. But you should know what you are potentially getting into, first.

 

More below . . .

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Tales of the Sausage Factory:
Markey’s Bet on Net Neutrality Pays Off (But Not How You Think).

The results are in on the highly contested MA senate primary race between incumbent Senator Ed Markey and 4-term Congressman Joe Kennedy. While about 15% of the vote remains to be counted, it appears that Markey has won by about 10 points. That’s an amazing margin considering that he was trailing by double digits when Kennedy first announced his primary challenge and Markey was widely seen as the next Washington insider destined for the dustbin.

 

But as just about every activist in a wide range of causes pointed out when hearing of the primary challenge, Ed Markey is not your typical Washington insider. To the contrary, Markey has shown leadership on a host of vitally important issues for decades — and long before they were popular in democratic caucus. Markey’s campaign also bucked conventional wisdom by running aggressively on his record. Markey’s Senate win in 2014 was assured when he won the democratic primary, so it is unsurprising that many people in the state outside the activist community were unaware of just how much they owe to Ed Markey. Readers here most likely know him for his telecom work, but the impressive list includes fighting for the environment before it was cool, fighting for privacy before it was cool, and fighting for accessibility rights (which, sadly, is still not as cool as it should be). Markey’s commitment on the environment goes back well before the Green New Deal, and he was huge in writing the pro-environmental provisions in the 2005 Energy Act. He was a primary drafter of the Children’s Online Privacy Protection Act of 1999. He is responsible for the closed captioning provisions and the video description provisions of the Communications Act.

 

And, of course, he was one of the earliest supporters of net neutrality, going up against members of his own party to fight the anti-net neutrality provisions of the 2006 effort to rewrite the Communications Act. You can see me gush about Markey back in 2006 here. But my appreciation for Markey goes back to the 1990s, when he was one of the few members of Congress who actually cared enough about getting the technical issues right to dig in deep on the creation of ICANN.

 

All of this paid off yesterday in Markey’s primary challenge. Markey’s early decision to back net neutrality — like his decisions on privacy and disability access — were made when no one thought any of these things would matter in an election one way or another. And I’m not going to claim that net neutrality was a deciding issue for the voters of Massachusetts. But it is part of an overall record that established Markey as a genuine progressive leader and effective fighter long before anyone considered those election advantages. In particular, net neutrality is a highly popular issue among the young online progressive activist community that press reports are saying were essential to Markey’s astonishing turn around from trailing by double digits to winning by double digits (or almost double digits depending on the final count).

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Tales of the Sausage Factory:
Another Massive Hurricane, Another Chance for the FCC to Do Nothing — and Why Congress Must Pass the RESILIENT Act.

When I was growing up, I used to hear the nursery rhyme about the itsy bitsy spider climbing the waterspout, getting washed out, and then doing the exact same thing again. Whereas most people I have encountered regard this little jingle as a pean of praise to perseverance, I always thought it was a warning about what happens when you refuse to learn from past experience. Seriously spider dude, it’s a rain pipeReality does not care about your rugged determination and individualism. You need to take a lesson from the ant with the rubber tree plant and stop wasting time.

 

I bring this up as, once again, we have wildfires in California with rolling blackouts and massive hurricanes hitting the Gulf Coast — both of which have historically caused major telecom outages (although so far the infrastructure appears to be holding up). Rather than learn from these experiences over the last three years, the Pai FCC has become famous for it’s three-part Republican harmony version of the Itsy Bitsy Spider (telecom version) while the Democratic Commissioners are relegated to feeling the Cassandrefreude. So I will take this opportunity to plug the “Reenforcing and Evaluating Service Integrity, Local Infrastructure, and Emergency Notification for Today’s Networks Act” (aka the RESILIENT Act (section by section by section analysis here, press release here).

 

Briefly, Congress ought to pass the RESILIENT Act as quickly as possible. Neither the FCC nor state governments have taken the needed steps to update our regulations governing repair of physical networks to reflect modern network construction. The biggest change — that communications networks are no longer self-powered — requires that the FCC and the Department of Energy (DOE) (through the Federal Energy Regulatory Commission (FERC)) to work together to require power companies and telecom companies to coordinate. That takes federal legislation. But we also need to recognize that we can’t require every network to maintain reliability on its own. We need networks to use the redundancy that comes from having competing networks to provide the reliability we used to have from a highly regulated monopoly provider.

 

I explain more below . . .

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Tales of the Sausage Factory:
We Can #ConnectTribes to Broadband, and YOU Can Help!

One of the unusual plot twists of this season on Spectrum Wars has been my agreeing more and more with FCC Chairman Ajit Pai. For those familiar with Babylon 5, this is rather like how G’Kar and Londo started working together by the end of Season 4 despite attacking each other’s home planets at various points in Seasons 1, 2 & 3. But as I like to say: “Always prepare for the best possible result.” Mind you, this doesn’t change all the things on which I vociferously oppose the current FCC. But I’m hoping to extend the spectrum streak into August.

 

Which brings me to one of the most important developments for connectivity for Native American Tribes, Alaskan Native villages and Native Hawaiian communities: the 2.5 GHz Rural Tribal Priority Window (TPW). This gives federally recognized Tribes on rural Tribal lands the opportunity to apply for free spectrum licenses in one of bands best suited for 5G. Tribes that receive these licenses will have the capability to build out their own 5G networks, bringing real, reliable and affordable broadband to communities that have the worst broadband access in the United States. Unfortunately, the application window closes on August 3. Because of the horrific impact of COVID-19 on Native American communities (rural Native American Communities have suffered worse economic and social impacts of COVID-19 than any other community in the United States, aggravated by the severe lack of broadband access), hundreds of eligible Tribes will not be able to meet the August 3 deadline to apply (less than 20% of the approximately 515 eligible federally recognized tribes on rural Tribal lands are expected to be able to apply under the current deadline, based on an estimate by MuralNet.org).

 

Tribal organizations such as National Congress of American Indians, The Southern California Chairmen’s Tribal Association, Native Public Media, and AMERIND Risk Management (a Tribal owned corporation chartered under federal law) are working with my employer, Public Knowledge, to request the FCC to extend the window until February 3, 2021. As I explain below, this will benefit hundreds of Tribes and their communities, while harming no one. But best of all, you can help! Here’s how:

 

Tell your member of Congress to tell the FCC to extend the 2.5 GHz Tribal Priority Window. You can do that by going to the Public Knowledge #ConnectTribes action tool here.

 

Tell the FCC to extend the 2.5 GHz TPW. The Docket Number for this proceeding is 18-120. Simply head over to the FCC Express Comment page and tell the FCC in your own words that Tribes deserve a real chance to apply for wireless broadband licenses on their own sovereign Tribal lands so they can provide Tribal households and businesses with the broadband they need and deserve.

 

Participate in the #ConnectTribes Day of Action on Thursday, JULY 23 (TOMORROW!). One of the biggest problems is that no one outside of a very small set of telecom wonks and Native activists knows about this situation and why the FCC needs to extend the TPW until February 3. Tweet or otherwise use social media with the hashtag #ConnectTribes to raise the profile of this issue. We are planning a “Day of Action” this Thursday, July 23 to get this trending — but please keep using the hashtag to support Tribal connectivity until August 3.

 

More below . . .

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Tales of the Sausage Factory:
An Ounce of Preventive Regulation is Worth a Pound of Antitrust: A Proposal for Platform CPNI.

A substantially similar version of this blog was published on the blog of my employer, Public Knowledge.

 

Last year, Public Knowledge and Roosevelt Institute published my book, The Case for the Digital Platform Act, I argued there that we could define digital platforms as a distinct sector of the economy, and that the structure of these businesses and the nature of the sector combined to encourage behaviors that create challenges for existing antitrust enforcement. In the absence of new laws and policies, the digital platform sector gives rise to “tipping points” where a single platform or small oligopoly of platforms can exercise control over a highly lucrative, difficult-to-replicate set of online businesses. For example, despite starting as an online bookseller with almost no customers in 1994, Amazon has grown to an online e-commerce behemoth controlling approximately 40% of all online sales in the United States and enjoying a market capitalization of $1.52 trillion. Google has grown from a scrappy little search engine in 1998 to dominate online search and online advertising — as well as creating the most popular mobile application system (Android) and web browser (Chrome).

 

Today, Public Knowledge released my new paper on digital platform regulation: Mind Your Own Business: Protecting Proprietary Third-Party Information from Digital Platforms. Briefly, this paper provides a solution to a specific competition problem that keeps coming up in the digital platform space. Continuing accusations against AmazonGoogle, and other digital platforms that connect third-party vendors with customers, that these platforms appropriate proprietary data (such as sales information, customer demographics, or whether the vendor uses associated affiliate services such as Google Ads or Amazon Fulfillment Centers) and use this data collected for one purpose to privilege themselves at the expense of the vendor.

 

While I’ve blogged about this problem previously, the new paper provides a detailed analysis of the problem, why the market will not find a solution without policy intervention, and a model statute to solve the problem. Congress has only to pass the draft statute attached from the paper’s Appendix to take a significant step forward in promoting competition in the digital marketplace. For the benefit of folks just tuning in, here is a brief refresher and summary of the new material.

 

A side note. One of the things I’ve done in the paper and draft statute in Appendix A (Feld’s First Principle of Advocacy: Always make it as easy as possible for people to do what you want them to do) is to actually define, in statutory terms, a “digital platform.” Whatever happens with this specific regulatory proposal, this definition is something I hope people will pick up on and recycle. One of the challenges for regulating a specific sector is to actually define the sector. Most legislative efforts, however, think primarily in terms of “Google, Facebook, Amazon, maybe Apple and whoever else.” But digital platforms as a sector of the economy includes not just the biggest providers but the smallest and everything in between. With all due respect to Justice Potter Stewart, you can’t write legislation that defines the sorts of actors covered by the legislation as “I know it when I see it.”

 

More below . . .

 

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Tales of the Sausage Factory:
The Revolution Will Not Be Focus Grouped

Inspired by the incredibly powerful “The Revolution Will Not Be Televised” By Gil Scott-Heron

 

 

The Revolution will not be focus grouped

The Revolution will not come with cute and inoffensive hashtags

Audience tested by right-leaning independents and critical age demographics

The Revolution will not be focus grouped

 

 

The Revolution will not be focus grouped

The Revolution will not filter for the sake of November

It will not have carefully thought out tie-ins approved by the Leadership, carefully vetted,

Designed to roll off the tongue, soothe your nerves and ease your fears

The Revolution will not be focus grouped

 

 

The Revolution is not about living your best life

There will be no pictures of kittens or fun memes

There will be no control on who Tweets what or when

You will not stop the enemy from taking things out of context

Making up lies

Causing confusion

Acting in bad faith

Repeating the same debunked disinformation over and over

No change of hashtag will stop Fox News or OANN

From Owning the Libs and pwning the powerless

Tucker Carlson will not be fair and balanced

Laura Ingraham will not care about your hashtag

The Revolution will not be focus grouped

 

 

Sadly, Brother Scott-Heron was wrong

There will be pictures of pigs shooting down brothers

All over Twitter and Instagram

You will see brave sisters clubbed, groped and tazered by police

On YouTube or wherever you stream user content

You will see old people, young people, black, brown, white

Every color of the Rainbow and every sex and gender

Standing up to a tide of Blue in the black smoke with

The tear gas and the flash bangs and the rubber bullets flying

And you will see it over and over and over and over

Black people are in the street, demanding a brighter day

And they are not alone

The Revolution will not be focus grouped

 

The Revolution will not be artistically backlit, or retroactively gaslit

You will not hear about it from teaser trailers or viral videos made by commercial studios

You will not get woke from The View or set free by The Five

The Revolution will not be convenient to binge watch

The Revolution is not a dinner party

The Revolution is Black Men, Black Women, Black Children

All Shouting “I can’t breathe, and You WILL GET THE FUCK OFF MY NECK RIGHT NOW!”

The Revolution will not be tone policed.

The Revolution will not use polite language.

The Revolution will not be focus grouped.

The Revolution will not be focused grouped

The Revolution will not be focused grouped

 

 

The Revolution is hashtag live!

 

 

 

Tales of the Sausage Factory:
Breaking Down and Taking Down Trump’s Executive Order Spanking Social Media.

(A substantially similar version of this appeared first on the blog of my employer, Public Knowledge)

It’s hard to believe Trump issued this stupid Executive Order a mere week ago. Even by the standards of insanity known as the Trump Administration, the last week has reached heights of insanity that make a full frontal assault on the First Amendment with anything less than tear gas and tanks seem trivial. Nevertheless, given the vital importance social media have played in publicizing the murders of George Floyd, Ahmed Arbery, and too many others, how social media have broadcast police brutality against peaceful protesters to be broadcast live around the world from countless locations, and how social media has allowed organizers to to coordinate with one another, we need to remember how vitally important it is to protect these means of communication from being cowed and coopted by the President and others with power. At the same time, the way others have used social media to spread misinformation and promote violence highlights that we have very real problems of content moderation we need to address.

 

In both cases, Trump’s naked effort to use his authority to threaten social media companies so they will dance to his tune undermines everything good about social media while doing nothing to address any of its serious problems. So even though (as I have written previously) I don’t think the FCC has the authority to do what Trump wants (and as I write below, i don’t think the FTC does either), it doesn’t make this Executive Order (EO) something harmless we can ignore. Below, I explain what the EO basically instructs federal agencies to do, what happens next, and what people can do about it.

 

More below . . . .

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Tales of the Sausage Factory:
The Trump Administration Goes to War over 5G, with Itself

(A somewhat sorter version of this appeared on the blog of my employer Public Knowledge)

If you have followed anything in the wireless world, you will have heard about 5G – the next generation of wireless technology. Technologists promise it will revolutionize our lives by enabling everything from gigabit mobile downloads to self-driving cars. Conspiracy theorists falsely warn it causes coronavirus and kills bees. Perhaps most impressively, however, 5G bridges the hyper-partisan divide in Washington, D.C. Ask anyone who does wireless policy and they will tell you that America absolutely needs to roll out 5G as quickly as possible, usually with dire warnings added that if we don’t move quickly, China will end up “winning the race to 5G.” President Trump himself has repeatedly emphasized that he wants the United States to lead in 5G and even 6G. True, 6G doesn’t actually exist, but this enthusiasm shows how seriously the Trump Administration takes moving forward on the Federal Communications Commission’s “5G Fast Plan” to open huge swaths of wireless spectrum necessary to support 5G technology.

 

It may therefore surprise you that the one discordant note in the 5G chorus over the last three years keeps coming from within the Trump Administration itself. Federal agencies have mounted an increasingly public campaign against the FCC and the wireless industry. It’s to the point that every FCC announcement of new 5G spectrum is now met with a different federal agency’s announcement that the FCC’s decision will interfere with vital life-protecting services. For example, the National Oceanic and Atmospheric Administration (NOAA) claims that 5G will cause serious interference to weather prediction (it hasn’t). The Department of Transportation claims that 5G will interfere with collision avoidance systems (again, despite recent FCC authorizations for use of this spectrum to boost connectivity during the COVID-19 lockdown, it hasn’t). 

 

Things have now come to an all-out war between the Department of Defense and the FCC, with the Defense Department claiming that a recent decision by the FCC (on a 5-0 bipartisan vote) resolving a decades-long dispute with a company now called Ligado will interfere with vital GPS operations. (The DoD runs the nation’s GPS satellites for military operations, despite the public’s ubiquitous use of GPS.) While the Ligado decision is only a small part of the “5G Fast Plan,” it has split the Trump Administration at the Cabinet level – where Secretary of State Pompeo and Attorney General Barr have supported the FCC and Defense Secretary Esper has attacked the decision. This turf battle has spilled over into Congress, with members of the Senate and House Armed Services Committee issuing dueling statements with members of the Commerce Committee (which has jurisdiction over the FCC). Unless contained, this 5G civil war threatens to paralyze the FCC spectrum process and the rollout of new spectrum for 5G.

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Tales of the Sausage Factory:
Memorial: Henry Geller, Public Interest Champion and Pioneer: 1924-2020.

On April 7, one of the great giants of public interest in telecommunications law and advocacy died. Henry Geller, the first Administrator of the National Telecommunications Information Administration  and the General Counsel of the Federal Communications Commission (FCC) during its activist phase around equal opportunity, banning cigarette advertising, and implementing the Fairness Doctrine. Henry died at age 96, a good long run.

 

It is perhaps understandable that Henry’s death should go largely unnoticed in the current coronavirus crisis. I have so far seen only one publicly available obituary Henry had been sidelined by illness associated with his age for years and in the age of broadband and digital platforms his advocacy for greater representation and more diverse ownership of broadcast media and promotion of children’s television will seem quaint or of little meaning to many in the era of Twitch and TikTok. But I would be remiss if I did not add my personal reminiscence and resect to those published by other colleagues (here and here).

 

I met Henry Geller when I joined Media Access Project back in 1999. It is perhaps difficult for people to understand what the world of “media reform”  and tech policy were like in the highly complacent 1990s and into the 00s. What had been a vibrant sector of public advocacy in the 1960s and 1970s around civil rights and public interest obligations of broadcasters and an effort to unleash the democratizing potential of cable television (As Asst. Secretary of Commerce for NTIA, Henry Geller famously recommended that cable operators be common carriers; the proposal, like many of Henry’s progressive proposals, was rejected) had withered to a handful of true believers fighting to protect the remaining public interest obligations and a handful of pro-diversity and pro-competition obligations in the 1992 Cable Act and 1996 Telecom Act. The Adarand and Lutheran Church decisions eliminated explicit race-conscious efforts to promote diversity in ownership or employment in broadcasting. The great pushback against “corporate media” for selling the American people the Iraq War was in the unforeseeable future. It was an easy time to become discouraged and abandon any hope for the future of broadcasting as anything other than a vast, corporate wasteland dedicated to cross-promoting products and promoting an increasingly ideological deregulatory agenda.

 

In all this, Henry Geller remained a happy warrior for change. But importantly, he was not in favor of simply trying to do the same thing over and over. He was constantly looking for new strategies. By the time I met him, his big proposal was to try to reallocate money from the planned DTV spectrum auction to become a permanent funding source for educational children’s television. Nor was Henry naive about how the FCC had allowed the definition of “children’s television” to be morality plays and thinly disguised commercials rather than more substantive education. But he was a big believer in acknowledging the failures of the past and trying to learn from them. Nor did his hopes for big and new solutions prevent him from paying attention to the details of ongoing fights, such as MAP’s continuing efforts to push cable ownership limits and program access rules.

 

And unlike many older policy proponents, Henry immediately grasped both the importance of broadband and new technologies to achieve traditional public interest goals of promoting diversity of views, racial diversity, and children’s educational content. Every time I talked to him over the 20 years I knew him, he was eager to hear about the latest technology and policy developments and discuss strategy. Especially in the early days of my career, when you could count the number of people in the traditional media reform community on your fingers and the number of folks interested in broadband on one hand, talking to an established elder of the community who didn’t feel we needed to constrain our thinking to the “pragmatic” and that we had to be looking for new, big ideas was a lifeline to sanity. Henry was not just encouraging of thinking about how to approach public interest problems in new ways. He was challenging in a positive way when much of what was left of the movement 9and before its resurgence) saw cynicism for wisdom. At every MAP board meeting, and in every conversation, he was prepared to ask how this related to our mission to promote diversity in the marketplace of ideas and universal access to information from the widest possible perspectives. Always he would push us to understand how our projects — from pushing for a low-power radio service to expanding unlicensed spectrum access — would give voice to the voiceless and opportunities to the marginalized.

 

Henry was an inspiration. Even as his age caught up with him and his fiscal frailty made it harder for him to participate in the advocacy which was his life, he remained mentally sharp and actively engaged. I never had a conversation with Henry Geller that wasn’t worth having. It is sad to think I’ll never have another.

 

Stay tuned . . .

Tales of the Sausage Factory:
Want to Keep America Home? Give Everyone Free Basic Broadband.

This originally appeared in substantially similar form on the blog of my employer Public Knowledge.

 

Medical experts agree that the most important thing we can do to support the efforts against the COVID-19 outbreak is a medical protocol known by the acronym STHH, or “Stay the Heck Home.” (Yes, I know how it’s usually written.) To keep Americans home, we need everyone to have broadband. It’s really that simple. Without telework, the economy would shut down completely. We would lose half a school year without distance education. But the value of everyone having a residential broadband connection goes well beyond that in the current crisis. Want to keep people off the streets to flatten the curve? Make it possible for them to shop online? Want them to access forms to receive government aid during this economic crisis? Cut down on physical doctor appointments to avoid infecting others? Fill out the 2020 Census so we don’t need armies of Census Takers going door-to-door? That all takes broadband.

 

But most importantly, human beings are social creatures. If you want to make it as easy as possible for human beings to stay in their homes, you need to make it possible for them to visit each other virtually. Always make it as easy as possible for people to do what you want them to do, and the STHH protocol requires lots and lots of people to do something entirely unnatural to human beings — stay socially isolated for an indefinite period of time that may last months. Virtual visits may not be as good as the real thing, but a video call with parents or grandchildren can do a great deal to relieve stress when you are stuck inside.

 

Unfortunately, as most folks know, the U.S. has some of the most expensive broadband in the developed world. Even with broadband providers signing the “Keep Americans Connected Pledge” to not disconnect anyone or charge late fees for the next 60 days, we will still see millions of unemployed Americans potentially accumulating significant past-due bills for a connection they desperately need in order to avoid getting sick. Nor does this help the estimated 18 million Americans who live in areas with broadband available but remain offline because they can’t afford a connection. Finally, the uncomfortable elephant in the room is that this may last much longer than the 60 days covered by the Keep Americans Connected Pledge. Even if we expect internet service providers to keep this promise during the entire pandemic, these are also businesses with employees. We want to support them during this economic crisis so they can pay their own employees.

 

So here is a very simple idea to persuade Americans to stay home, keep our virtual society running, and stimulate the economy. As part of the coronavirus stimulus package, the United States government should cover everyone’s broadband bill for a basic connection capable of supporting two-way video (ideally 25/25 Mbps, but we may have to settle for the Federal Communications Commission official definition of broadband of 25/3 Mbps).

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