FirstNet's "Priority and Preemption" Secures Public Safety Communications

On April 26, FirstNet and the AT&T Policy Forum hosted an event titled "Looking Back – The Ultimate Stress Test for FirstNet." The event included a conversation with Congressman Bob Latta and a panel event discussing public safety communications and FirstNet's operations over the past year. The discussion highlighted the importance of FirstNet's "priority and preemption" feature that ensures public safety users have solid connections to communicate in emergencies or for other public safety purposes. 

Paragraph 24 of the FCC's October 2020 Restoring Internet Freedom Remand Order spotlighted FirstNet and its dedicated public safety service:

The record reflects that many public safety entities have access to and make use of dedicated public safety-specific and/or prioritized, specialized enterprise-level broadband services for data communications between public safety officials Perhaps the most important example of a dedicated network is the Congressionally-created First Responder Network Authority (FirstNet). In 2012, Congress passed the Middle Class Tax Relief and Job Creation Act, which in part directed "the establishment of a nationwide, interoperable public safety network" to "ensure the deployment and operation of a nationwide, broadband network for public safety communications" —a resilient network capable of supporting both data and voice communications. The law granted 20 megahertz of spectrum to be used for the network and allocated $7 billion of funding. FirstNet offers service priority and preemption, which allow first responders to communicate over an "always-on" network… The record reflects that "[m]ore and more, public safety is relying on the FirstNet core and public safety’s own dedicated network for critical public safety communications – one that offers faster performance than commercial networks."  

In the next paragraph, the FCC's order offered additional insights into the public safety communications and dedicated or prioritized broadband Internet services: 

"[O]ther service providers have recently begun offering or enhanced their public safety services to compete with FirstNet." For example, Verizon offers services designed for first responders and public safety entities through its public safety private core that include the ability to prioritize public safety communications to ensure that they stay connected during emergencies. Such services also provide an extra layer of assurance that public safety communications will continue to operate during peak times. In addition, public safety users "have access to several … enhanced services" from Verizon, including Mobile Broadband Priority Service and data preemption. These services "provide public safety users priority service for data transmissions" by giving users priority over commercial users during periods of heavy network congestion and "reallocat[ing] network resources from commercial data/Internet users to first responders" if networks reach full capacity. 

The view expressed by the FCC's order are consistent with comments filed in the proceeding by Free State Foundation President Randolph May and I. As FSF's comments stated: "Paid prioritization arrangements offer a valuable option for government agencies responsible for public safety to use communications services that feature higher quality and improved reliability compared to traditional best-efforts broadband networks."

Video of FSF Experts Discussing Communications Policy Hot Topics

The Free State Foundation's Thirteenth Annual Telecom Policy Conference featured a panel event titled "Hot Topics in Communications Policy." The panel, held earlier today, featured members of FSF's Board of Academic Advisors: Theodore Bolema, Executive Director of the Institute for the Study of Economic Growth at Wichita State University; Tim Brennan, Professor of Public Policy and Economics at the University of Maryland, Baltimore County; Michelle Connolly, Professor of the Practice within the Economics Department at Duke University; and Daniel Lyons, Professor at Boston College Law School. The panel went about 75 minutes and covered timely topics such as the Biden broadband plan, state and federal net neutrality regulation, spectrum policy, and economic analysis at the FCC. 

In case you missed it, a Zoom video of the event is now available. The passcode for the video is: wtNe2r%e .

Republican Senators' $568B Infrastructure Proposal Includes $65B for Broadband

A group of five Republican Senators has released a $568 billion infrastructure framework in response the $2 trillion American Jobs Plan announced by President Biden.

Those lawmakers are Roger Wicker (MS), Ranking Member of the Commerce, Science, and Transportation Committee; Shelley Moore Capito (WV), Ranking Member of the Environment and Public Works Committee; Pat Toomey (PA), Ranking Member of the Banking, Housing, and Urban Affairs Committee; Mike Crapo (ID), Ranking Member of the Finance Committee; and John Barrasso (WY), Ranking Member of the Energy and Natural Resources Committee.

The Biden Plan, one aspect of which I discussed in a recent post to the FSF Blog, would make $100 billion available for broadband-related projects and would "prioritize[] support for broadband networks owned, operated by, or affiliated with local governments, non-profits, and co-operatives."

The Republican counter-proposal, by contrast, would allocate $65 billion out of the $81 billion generated by the recent C-band auction for new spending by the FCC and NTIA.

Be on the lookout in the coming days and weeks for additional commentary from Free State Foundation scholars on broadband spending proposals.

USTelecom Study Comparing Broadband in the U.S. and the EU Confirms the Wisdom of a Light Regulatory Touch

USTelecom | The Broadband Association yesterday released a study comparing broadband deployment and adoption levels in the United States and the European Union (EU). Not surprisingly, it underscores the indisputable superiority of the former's largely hands-off approach to the public-utility model embraced by the latter.

In 2017's Restoring Internet Freedom Order (RIFO), the FCC under then-Chairman Ajit Pai once again embraced a light-touch regulatory framework for broadband Internet access service. In an October 2020 Order on Remand responding to the D.C. Circuit's 2019 decision in Mozilla Corp. v. FCC, which largely upheld the RIFO, the Commission concluded that:

[E]ven with unprecedented increases in traffic during the COVID-19 pandemic, [American] broadband networks have been able to handle the increase in traffic and shift in usage patterns…. [U]nlike the European Union, which takes a utility-style approach to broadband regulation and has had to request that bandwidth intensive services such as Netflix reduce video quality in order to ease stress on its network infrastructure, the United States has not had to take similar steps, despite similar surges in Internet traffic. This country's robust and resilient broadband networks are, in significant part, the result of over two decades of almost continuous light-touch regulation, which has promoted substantial infrastructure investment and deployment.

The just-released USTelecom study, "US vs. EU Broadband Trends (2012-2019)," provides strong evidentiary support for that assessment.

Unencumbered by the investment disincentives inherent in public utility regulation, American broadband providers spend three times more on network infrastructure than their EU counterparts. As a direct consequence, the United States enjoys a substantial, across-the-board advantage with respect to both deployment and adoption:

• Facilities that can deliver 30 megabits per second (Mbps) downstream cover 12 percent more of the U.S., and infrastructure capable of 100 Mbps or greater downstream has been constructed in 25 percent more of this country.
• Over 9 percent more Americans subscribe to 30 Mbps service, and over 21 percent more subscribe to 100 Mbps or greater packages.

American leadership is even more pronounced in rural areas, where deployment of 30 Mbps service exceeds that in the EU by over 22 percent.

To quote USTelecom President and CEO Jonathan Spalter, "if the U.S. had followed the EU's more regulatory path, then our nation's digital divide could be more than triple what it is today."

Register to Watch FSF's April 27 Event: Hot Topics in Communications Policy

Free State Foundation  .         Thirteenth Annual Telecom Policy Conference

REGISTER NOW!   Panel on "Hot Topics in Communications Policy"    with   Members of the Free State Foundation’s Board of Academic Advisors :   Theodore Bolema, Executive Director, Institute for the Study of Economic Growth, Wichita State University    Tim Brennan, Professor of Public Policy and Economics, University of Maryland, Baltimore County    Michelle Connolly, Professor of the Practice within the Economics Department, Duke University    Daniel Lyons, Professor of Law, Boston College Law School     WHAT: FSF's Thirteenth Annual Telecom Policy Conference – "Hot Topics in Communications Policy" Panel Presentation   WHERE: Via Zoom   WHO: Members of the Free State Foundation’s Board of Academic Advisors   WHEN: Tuesday, April 27, 2021, 1:00 – 2:30 p.m. EDT

As part of the Free State Foundation's Thirteenth Annual Telecom Policy Conference via Zoom, four members of FSF's Board of Academic Advisors will participate on a "Hot Topics in Communications Policy" Panel presentation. FSF's Director of Policy Studies and Senior Fellow Seth Cooper will moderate the panel following an introduction by FSF President Randolph May. Panelists are Theodore Bolema, Executive Director of the Institute for the Study of Economic Growth at Wichita State University; Tim Brennan, Professor of Public Policy and Economics at the University of Maryland, Baltimore County; Michelle Connolly, Professor of the Practice within the Economics Department at Duke University; and Daniel Lyons, Professor at Boston College Law School.   You will receive the Zoom link when you register!   The Free State Foundation's Annual Telecom Policy Conference is widely acknowledged to be one of the nation's premier communications law and policy events, and - just as we have for the past fourteen years - we will continue to present interesting, informative, and impactful programs.   As in previous years, a truly outstanding lineup of senior officials and prominent experts from the FCC, other government agencies, industry, academia, and think tanks will discuss and debate the most important communications and Internet policy issues of the day.

FCC Should Boost 5G Backhaul by Updating Rules in 70/80/90 GHz Bands

American success in the race to 5G depends on a strong supply of backhaul for transmitting ever-increasing volumes of mobile and fixed wireless data. To help enhance wireless backhaul capacity, the Commission should modernize its antenna rules so that small cells can provide backhaul in the 70/80/90 GHz spectrum bands. 

Backhaul connections route voice and data traffic from mobile and fixed wireless providers' cell sites to mobile switching centers that link to the providers' core networks, the public switched telephone network, and the Internet. Wireless spectrum provides a vitally important transmission medium for backhaul. In its Sixteenth Wireless Competition Report (2013), the FCC recognized that "[m]obile backhaul needs will keep increasing as wireless carriers continue to deploy LTE technology in their networks." This was undoubtedly true as mobile networks transitioned to 4G, and it remains equally true now that 5G networks are being deployed. According to Cisco's 2021 Annual Internet Report, there will be 299 million mobile wireless users in the U.S. in 2023, up from 285.3 million in 2018, and there will be 3.4 connected mobile devices per capita in 2023 compared to 1.7 devices in 2018. Additional backhaul capacity is needed to help support data traffic increases resulting from anticipated future demand, including continuing growth in wireless viewing of HD and even 4K video.

But the Commission's old antenna rules were not established with small cells in mind. Technical changes made to those rules back in 2005 long predate 5G technological advances. In its June 2020 rulemaking notice, the Commission stated that the 70/80/90 GHz millimeter wave bands have been underutilized. Recognizing these facts, the Commission proposed to update its antenna rules for the 70/80 GHz band, and it sought comment on whether to make similar updates to its rules for the 90 GHz band. 

 

Modernization of the Commission's antenna rules requires harmonization between federal and non-federal users of the 70/80/90 GHz bands. Fortunately, there appears to be an industry consensus that antenna rule updates to accommodate small cells won't interfere with other uses of that spectrum. A prime opportunity now exists to boost 5G backhaul in those bands, and that opportunity needs to be seized without delay.

 

A February 2021 report by the Boston Consulting Group (BCG) estimates that 5G infrastructure buildout will directly contribute $400-500 billion to U.S. GDP and create up to 1 million jobs over the next ten years. But BCG also estimates nationwide losses of $25 billion in potential benefits for every 6-month stall in 5G deployment. Given the importance of backhaul to next-generation wireless networks as well as the sizable economic benefits to Americans resulting from timely deployment of 5G, the Commission should take prompt action to update its rules for the 70/80/90 GHz bands. 

Rechartered Federal Advisory Committee To Focus on 5G Network Security

On April 15, FCC Acting Chairwoman Jessica Rosenworcel announced her intention to recharter for the eighth time the Communications Security, Reliability, and Interoperability Council (CSRIC), a federal advisory committee whose purpose is to provide the Commission with technical advice and recommendations on pressing communications-related matters.

In light of the spate of recent cyberattacks, in particular the SolarWinds SUNBURST hack that was perpetrated last year and which last week prompted President Biden to impose sanctions on Russia, Acting Chairwoman Rosenworcel will task the latest iteration of CSRIC with preparing for "the challenges of today and tomorrow" via "a coordinated, multifaceted, and strategic approach to protecting our networks from all threats."

According to the Public Notice, CSRIC VIII will address:

[A] range of public safety- and homeland security-related communications matters, including: (1) the security and reliability of communications systems and infrastructure; (2) 911, Enhanced 911 (E911), and Next Generation 911 (NG911); (3) emergency alerting; and (4) national security/emergency preparedness (NS/EP) communications, including law enforcement access to communications.

However, the Press Release makes clear that the "primary focus" of CSRIC VIII will be 5G network security.

June 1 is the deadline to submit nominations for members and a chairperson. Acting Chairwoman Rosenworcel's goal is a diverse council that includes representatives from both the private sector and other federal agencies "with similar interests."

Panel Video on The Common Purposes of IP and Antitrust

Earlier today, I joined the Committee for Justice’s Ashley Baker along with Law Professor Kristen Osenga for a virtual panel discussion on "The Common Purposes of Intellectual Property and Antitrust." Video of the panel, which runs about an hour, is now available online. The panel discussion addressed the differences between intellectual property rights – such as copyrights and patent rights – from harmful monopolies. Along the way, the panel also delved into the role of administration in IP rights, legislative proposals for changing antitrust law, and the merits of the consumer welfare standard. 

My initial comments during CFJ's panel parallel my April 7 Perspectives from FSF Scholars paper titled "The Property Rights View of Copyrights Beats Bogus Monopoly Talk" and a short item I posted on April 9 at the Federalist Society's blog titled "Copyrights are Property Rights, Not Harmful Monopolies." Free State Foundation President Randolph May and I wrote a book chapter with the same name as the CFJ panel in our book Modernizing Copyright Law for the Digital Age: Constitutional Foundations for Reform (Carolina Academic Press, 2020). 

Report Tracks Continued Advancements in Competitive 5G Market

On April 15, RootMetrics released a report titled "Checking in on 5G progress in 2021: Who’s currently leading the 5G race?" The report compares availability and performance for 5G (and 4G LTE) mobile broadband services among the three major wireless providers here in the early part of 2021. And it tracks the progress of those providers since the latter part of 2020. In its report, RootMetrics included the following high-level findings: 

• AT&T impressed at multiple levels during testing so far in 1H 2021, with broad 5G availability, strong speeds, and great 5G reliability. AT&T also delivered the fastest 5G experience across three key speed metrics in the most cities of any carrier (see page 12 for details). 
• T-Mobile improved on its already widespread 5G availability and clocked much faster 5G speeds compared to those in 2H 2020. In 2020, the carrier’s 5G speeds were relatively slow, but T-Mobile’s speeds took a huge step forward in 1H 2021. That improvement was largely due to the carrier’s increased usage of mid-band spectrum across the first 45 markets tested in 1H 2021. 
• Verizon, which launched its nationwide 5G in the fall of 2020, showed incredibly fast progress in improving its 5G availability. The carrier delivered excellent 5G reliability, with 5G speeds generally similar to those of T-Mobile. 

RootMetrics report contains informative descriptions of the locations and characteristics of big three mobile broadband service providers. Its reported finding on median speeds for different providers in different regions and rankings are interesting as well. 

At the same time, it should be remembered that the report is based on a snapshot of a market in motion. The report provides clear evidence of the market's competitiveness and we can expect continued improvements in next-generation mobile broadband service availability and performance as more recently-auctioned spectrum is put into use and more physical infrastructure is deployed or upgraded. And don't forget that cable wireless entrants Spectrum Wireless (Charter) and Xfinity Mobile (Comcast) are continuing to make inroads in the mobile broadband market, while DISH Network is preparing to launch its own nationwide 5G network.  

Judge Silberman's Straight Talk on New York Times v. Sullivan and One-Sided Media

On April 8, Free State Foundation President Randolph May posted a blog bout Justice Clarence Thomas's concurring statement in Biden v. Knight First Amendment Institute at Columbia University. Justice Thomas's concurring statement is both intriguing and provocative. For another intriguing and provocative judicial opinion, look no further than Senior Judge Laurance Silberman's dissent in Tah v. Global Witness Publishing, Inc. 

 

The D.C. Circuit's decision in Tah was released on March 19. The court affirmed a dismissal of a defamation case for failing to plausibly allege actual malice. Senior Judge Silberman's partial dissent gets really interesting in Part III, in which he calls into question the legal standard for proving defamation of public figures that was created by the Supreme Court in New York Times v. Sullivan (1969): 

I am prompted to urge the overruling of New York Times v. Sullivan. Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. See McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari). The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 380–88 (1974) (White, J., dissenting). As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone.  

The foregoing paragraph is only the warm-up, as Senior Judge Silberman has much more to say about the Supreme Court making up new legal standards and leveraging its institutional legitimacy to resist any subsequent careful re-evaluation of its precedents. 

 

Senior Judge Silberman's dissent gets more interesting still when he identifies the effects of New York Times v. Sullivan in increasing the power of one-sided professional mass media organizations. Here is his first paragraph dealing with those effects: 

As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon. Cf. New York Times, 376 U.S. at 305 (Goldberg, J., concurring) (reasoning that the press will publish the responses of public officials to reports or accusations). But seeSuzanne Garment, The Culture of Mistrust in American Politics 74–75, 81–82 (1992) (noting that the press more often manufactures scandals involving political conservatives). The increased power of the press is so dangerous today because we are very close to one-party control of these institutions. Our court was once concerned about the institutional consolidation of the press leading to a "bland and homogenous" marketplace of ideas. See Hale v. FCC, 425 F.2d 556, 562 (D.C. Cir. 1970) (Tamm, J., concurring). It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat. 

No blog summary can do justice to Senior Judge Silberman's dissent in Tah. Part III of his dissent deserves a full reading – and some pondering. 

AT&T Will Invest $2 Billion to Reach Low-Income and Rural Americans with Broadband

Today, AT&T announced that it will invest $2 billion over the next three years to reach American who lack access to broadband Internet services or who have difficulty affording it. AT&T deserves credit for stepping up and pledging significant amounts of money to make broadband Internet services more available as well as affordable to low-income Americans.

As part of its continuing initiative to close digital divides, A&T will continue to offer discount wireless services to over 135,000 public and private schools and universities. Additionally, AT&T will continue its Access from AT&T program that offers wireline Internet service at $10 or less per month for qualifying households, with no contract obligations or install fee. 

Also, the Federal Emergency Broadband Benefit (EBB) program administered by the FCC will allow over 30 million households to reduce their monthly broadband service bills to as low as zero with. EBB will subsidize qualifying households up to $50 per month or $75 per month on Tribal lands. 

 

For more on AT&T's $2 billion investment pledge and other ways it intends to bring broadband Internet services to more Americans, check out AT&T's press release.

"Future Proofing" Subsidized Broadband Would Inflate Consumer Prices

The Biden Administration's American Jobs Plan (the Plan) would allocate a substantial amount of taxpayer money – $100 billion – to address broadband accessibility and affordability. The limited details we know at this point, however, suggest strongly that the overly ambitious Plan could lead to waste and, contrary to its stated goal, higher, not lower, prices.

There is much to critique about the Plan, but for now I want to limit my focus on the inescapable tension that exists between two of its primary priorities. The Fact Sheet released by the White House makes the following interrelated assertions:

• "The President's plan prioritizes building 'future proof' broadband infrastructure …."
• "Americans pay too much for the internet – much more than people in many other countries – and the President is committed to working with Congress to find a solution to reduce internet prices for all Americans, …."

Simply put, you can't have it both ways. The notion of "future proofing" suggests building "gold-plated" infrastructure that delivers more than what consumers need – and costs more than what they want to spend. And price regulation, the process hinted at in the second quote above and by which the government would dictate how much providers may charge, based upon its best educated guess as to what actual costs and an acceptable rate of return might be, wouldn't eliminate that problem – it simply would incorporate those additional costs into the calculation.

At this point, we cannot know with any certainty what the White House means when it says it wants to "'future proof' broadband infrastructure." However, press reports emphasize that the Accessible, Affordable Internet for All Act would appropriate $80 billion for infrastructure delivering gigabit speeds both upstream and downstream and the Leading Infrastructure for Tomorrow’s America (LIFT America) Act "would raise the FCC's current threshold definition of served areas from 25 Mbps download and 3 Mbps upload minimum to 25/25 symmetrical speed for low-tier service and 100/100 Mbps symmetrical for mid-tier service."

As Former FCC Commissioner Michael O'Rielly stated during recent testimony to the House Energy and Commerce Committee, "the push for symmetrical speeds at exorbitant levels, such as 100/100 megabits per second (Mbps), makes little sense" and "[a] 100-megabit upload speed does not reflect reality for now or any time soon."

And as Joan Marsh, AT&T Executive President of Federal Regulatory Relations, explained in a March 26, 2021, blog post, while 5G networks "easily" can deliver 100 Mbps downloads, "wireless networks are not built to deliver symmetrical speeds" and "adopting a symmetrical standard could result in overbuilding existing services today, including existing asymmetrical services that are currently meeting modern connectivity needs."

The private sector has spent nearly $2 trillion to provide broadband wherever it is economically feasible: that is, where – despite substantial uncertainty – there is at least a reasonable expectation of a return on that investment. Providers rely upon a range of technologies to connect homes: fiber to the home (FTTH), DOCSIS® cable modem service over hybrid fiber-coaxial (HFC) networks, Digital Subscriber Line (DSL) offerings over twisted-copper pairs, 4G/LTE and 5G mobile broadband, fixed wireless operating in both licensed and unlicensed spectrum, and satellite. In some instances, the chosen modality is suited best to the specific geographic and population characteristics of the area to be served. In others, enterprising businesses are rolling the dice – and taking the risk – on a competitive alternative.

The FCC's current definition of "broadband" – 25/3 Mbps – is sufficiently broad to encompass this wide range of network technologies. It also responds to the throughput needs of consumers, fosters intermodal competition, and maximizes the number of eligible bidders in reverse auctions for receipt of government subsidies, such as the $20.4 billion Rural Digital Opportunity Fund and the $9 billion 5G Fund for Rural America – two existing programs whose impact on closing remaining digital divides is not yet known, as Commissioner Brendan Carr emphasized in a recent op-ed.

In sum, the threshold established by the expert agency unleashes the most efficient investment and innovation mechanism – competitive forces – to drive down prices, expand access, and provide the speeds that consumers demand.

By contrast, in the name of "future proofing," the Plan would ratchet up the definition of "broadband" in a way that would increase inappropriately the costs of connecting unserved areas, incentivize providers able to meet that definition to replace existing facilities with "gold-plated" infrastructure rather than focus on expanding the reach of their networks, and render many viable distribution technologies ineligible to receive government subsidies simply due to their inability to deliver upstream speeds far exceeding the needs of consumers both today and in the foreseeable future.

The resulting wasteful overinvestment and suppression of competition would drive prices up, not down. And the specter of price regulation is no panacea. To the contrary, it would incorporate those additional costs into the government-established price – while at the same time serving to disincentivize investment and innovation.

Alaska Is the Latest State to Propose a Data Privacy Law

Add Alaska to the expanding list of states to consider comprehensive data privacy legislation.

As far as Internet traffic is concerned, state boundaries have no relevance. A single set of data privacy rules that apply nationwide therefore is the preferred approach. But as I've described in a recent Perspectives from FSF Scholars and a number of posts to the Free State Foundation Blog, a steadily growing number of states are filling the void created by Congress' inability thus far to pass preemptive federal law.

They include California and Virginia, both of which have enacted such laws, the former on two occasions, as well as Colorado, Florida, Minnesota, New York, Oklahoma, and Washington State.

And on March 31, Alaska Governor Mike Dunleavy introduced the Consumer Data Privacy Act (Senate Bill No. 116, House Bill No. 159), draft legislation that borrows heavily from the California Consumer Protection Act (CCPA).

The Consumer Data Privacy Act would create consumer rights to know what personal information is collected, to access that data, to have that data deleted, and to opt out of its sale.

Covered businesses would be required to disclose their data-use practices at the time of collection and in a publicly available privacy policy.

They also would be (1) prohibited from retaliating against those who exercise the rights listed above, (2) barred from using precise geolocation data beyond that which is necessary to provide requested goods and services absent express written consent, and (3) required to obtain opt-in consent from the parents/guardians of individuals under the age of 18 before disclosing their personal information, even, it would appear, if only to provide that individual with a requested product or service:

If a business has actual knowledge that a consumer is under 18 years of age, the business may not disclose the consumer's personal information for a business or commercial purpose, or use the consumer's precise geolocation data for a purpose other than to provide goods or services that the consumers reasonably requests and expects.

The Alaska Attorney General would have both enforcement and rulemaking authority under the Consumer Data Privacy Act. Consumers also could seek statutory damages via a private right of action created by state consumer protection law.

Though modeled on the CCPA, the Consumer Data Privacy Act deviates from the California law in a number of significant ways. For example, it would apply not just to a business that meets thresholds based upon annual revenue ($25 million) or the number of persons whose personal information it buys or sells (100,000), but also to a business that sold the personal information of even one consumer, household, or device during the previous year. It also defines a minor as less than 18, rather than 16, years old.

Should it become law, the Consumer Data Privacy Act would go into effect on January 1, 2023.

Will Big Tech Rethink Its Support for Common Carrier Regulation?

 

It is widely agreed that since the Restoring Internet Freedom Order’s repeal of the Obama-era FCC’s imposition of common carrier regulatory mandates on Internet service providers (ISPs), there has been no convincing evidence of any market failure or consumer harm attributable to the repeal. Nevertheless, it is widely assumed that when a third Democrat is confirmed as commissioner, the new Democratic majority at the agency will initiate a new “net neutrality” proceeding proposing to reinstate the now-repealed “Title II” common carrier classification of ISPs.

 

At the core of Title II are two key traditional common carrier mandates: the obligation to charge “reasonable” rates and to not unreasonably discriminate in the provision of service.

 

Given all the ongoing changes in the ISP marketplace – in the direction of more competition and consumer choice – and ever-increasing acknowledgements regarding the extent of the market dominance of the giant Internet platforms, such as Google, Facebook, Amazon, and Twitter, I wonder.

 

Specifically, I wonder whether this time around, if there is a forthcoming FCC rulemaking proceeding, the Internet giants (and I truly mean no disrespect!) will continue their decade-long active support for imposing common carrier obligations on ISPs, while, at the same time, arguing that they should be subject to little or no regulation. And, by the way, that they should continue to receive the special immunities from liability which they are granted by Section 230 of the Communications Act for posting, removing, or flagging content on their platforms.

 

Recall that the basis for the Internet giants’ (it is just a fact that they are very big!) calls for imposing common carrier public utility-like regulation on the ISPs is the claim that the ISPs possess market power which could allow them to discriminate against those they wish to disfavor.

 

I wonder whether what are often called “the suits,” or those in the “C-Suites,” have had an opportunity to examine, and think about, Justice Clarence Thomas’s April 5 concurring statement in Biden v. Knight First Amendment Institute at Columbia University. If not, they should. In fact, anyone interested in the current public policy debate concerning the potential regulation of social media should.

 

Justice Thomas’ opinion was issued in the context of an order dismissing as moot the case in which an appeals court had held that the threads in President Trump’s Twitter account constituted a “public forum,” and, therefore, consistent with the First Amendment, Trump could not block persons from commenting on his tweets. I don’t intend here to undertake an exposition of First Amendment public forum jurisprudence. It is enough for my purposes to point out that the appeals court’s conclusion that President Trump’s Twitter account constituted a public forum was based primarily on the fact that his account was used at times for communications in his official capacity.

 

While Justice Thomas agreed the original case was moot, his observations, including the following, should provoke careful consideration.

 

“[T]he Second Circuit’s conclusion that Mr. Trump’s Twitter account was a public forum is in tension with, among other things, our frequent description of public forums as ‘government-controlled spaces.’ … Any control Mr. Trump exercised over the account greatly paled in comparison to Twitter’s authority, dictated in its terms of service, to remove the account ‘at any time for any or no reason.’ Twitter exercised its authority to do exactly that.”

“In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they ‘carry’ information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way. And unlike newspapers, digital platforms hold themselves out as organizations that focus on distributing the speech of the broader public.”

“The analogy to common carriers is even clearer for digital platforms that have dominant market share. Similar to utilities, today’s dominant digital platforms derive much of their value from network size.”

“It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is. If the analogy between common carriers and digital platforms is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform’s right to exclude.”

And, by way of a punch line, Justice Thomas says this:

“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”

To be clear, my point here is not to endorse any particular changes in law or policy, although I have refuted elsewhere the suggestion that any change that reduces the scope of the Internet platforms’ immunity from liability under Section 230 necessarily violates their First Amendment rights. And I have suggested that perhaps the most efficacious response to the current dominant market power of Google, Facebook, Amazon, and so forth, is simply the creation of more competition that would create more consumer choice regarding the Internet platforms’ various policies and practices.

Be that as it may, I do wonder.

I wonder whether Big Tech perhaps might be rethinking its heretofore steadfast support for imposing Title II common carrier regulation on ISPs.

Colorado Lawmakers Introduce Data Privacy Bill

Colorado is the latest state to consider comprehensive data privacy legislation.

On March 19, State Senators Robert Rodriguez (D), Chair of the Business, Labor & Technology Committee, and Paul Lundeen (R), Minority Whip, introduced SB 21-190, the Colorado Privacy Act (the Act).

Should the Act become law, consumers at any time could opt-out of the sale, collection and/or use of "personal data," which the Act defines as "information that is linked or reasonably linkable to an identified or identifiable individual."

In addition, covered businesses would be required to obtain opt-in consent before processing "sensitive personal data," defined as: (1) "personal data revealing racial or ethical origin, religious beliefs, a mental or physical health condition or diagnosis, sex life or sexual orientation, or citizenship or citizenship status," (2) "genetic or biometric data that may be processed for the purpose of uniquely identifying an individual," or (3) the personal data of individuals below the age of 13.

Covered businesses would be required to conduct and document data protection assessments in connection with activities "that present a heightened risk of harm to a consumer," such as the the processing of sensitive personal data, the processing of personal data for targeted advertising or profiling purposes, or the sale of personal data.

While confidential, covered businesses would have to make such data protection assessments available to the Attorney General upon request.

Covered businesses also would be required to make available "a reasonably accessible, clear, and meaningful privacy notice"; "specify the express purposes for which personal data is collected and processed" and not process personal data "for purposes that are not necessary to or compatible with" those specified purposes without first obtaining the consumer's consent; and abide by duties of data minimization, care, and avoidance of unlawful discrimination.

Consumers, meanwhile, would be granted the following rights: the rights to access, correct, and delete personal data; the right to data portability; and the ability to appeal denied requests to exercise these rights.

The Act would not create a private right of action. Instead, the Colorado Attorney General and district attorneys would have exclusive enforcement authority. Remedies would include injunctive relief and civil penalties up to $2,000 per violation, not to exceed $500,000 for any related series of violations.

If adopted into law, the Act would become effective on January 1, 2023.

For additional posts to the Free State Foundation Blog discussing state data privacy legislation, please click here (Florida) and here (Virginia).

For a Perspectives from FSF Scholars describing the worst-of-all-worlds compliance nightmare, costs, and confusion that multiple, inconsistent state data privacy laws would impose on both businesses and consumers, please click here.

And for a post describing recently introduced federal legislation that would preempt state laws, please click here.

Supreme Court Makes a Sensible Ruling on Anti-Autodialing Statute

On April 1, the U.S. Supreme Court released its decision in Facebook v. Duguid regarding the scope of the federal statute that prohibits unwanted robocalls from "autodialers." Justice Sotomayor's opinion for the court, which was joined by seven other justices and unanimous in the result, sums up the anti-autodialing provision, the question before the court, and its ruling:

The Telephone Consumer Protection Act of 1991 (TCPA) proscribes abusive telemarketing practices by, among other things, imposing restrictions on making calls with an "automatic telephone dialing system." As defined by the TCPA, an "automatic telephone dialing system" is a piece of equipment with the capacity both "to store or produce telephone numbers to be called, using a random or sequential number generator," and to dial those numbers. 47 U. S. C. §227(a)(1). The question before the Court is whether that definition encompasses equipment that can "store" and dial telephone numbers, even if the device does not "us[e] a random or sequential number generator." It does not. To qualify as an "automatic telephone dialing system," a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator. 

As the Court notes, the FCC has interpreted the anti-autodialing provision to apply to text messages. At issue in the case was Facebook's sending of text messages to users whose numbers it had stored. This blog takes no view on whatever specific processes or techniques that Facebook used. Rather, the decision was important in rejecting an over-expansive definition of an "autodialer" that potentially would subject countless American's to potential claims under the TCPA:

Expanding the definition of an autodialer to encompass any equipment that merely stores and dials telephone numbers would take a chainsaw to these nuanced problems when Congress meant to use a scalpel. Duguid’s interpretation of an autodialer would capture virtually all modern cell phones, which have the capacity to "store . . . telephone numbers to be called" and "dial such numbers." §227(a)(1). The TCPA's liability provisions, then, could affect ordinary cell phone owners in the course of commonplace usage, such as speed dialing or sending automated text message responses. See §227(b)(3) (authorizing a $500 fine per violation, increased to $1,500 if the sender acted "willfully" or "knowingly").  

Professor Daniel Lyons, a member of the Free State Foundation's Board of Academic Advisers, previewed the Court's just-released decision in his Perspectives from FSF Scholars paper titled "Trilogy of Supreme Court Cases Highlight Deficiencies in Anti-Robocall Statute."

Congresswoman DelBene Reintroduces Federal Data Privacy Bill

Representative Suzan DelBene (D WA) has reintroduced the Information Transparency and Personal Data Control Act, federal privacy legislation she originally proposed, in a slightly modified form, in 2019.

The Information Transparency and Personal Data Control Act (ITPDCA) appears to be the first comprehensive data privacy bill introduced during the current legislative session.

Regarding the primary two issues upon which (1) lawmakers so far have been unable to reach agreement, and (2) I have written extensively for the Free State Foundation, it embraces what I consider to be the correct positions: it preempts state laws (with the exception of those addressing data-breach notifications, biometric information, wiretapping, and public records) and does not allow for a private right of action.

Instead, enforcement would be the responsibility of the FTC and, in the event that the FTC does not act, state attorneys general. However, state attorneys general would be required to provide covered businesses with thirty days to cure before commencing an action.

Unlike the California Consumer Privacy Act or the Virginia Consumer Data Protection Act, the ITPDCA would not grant consumers the right to access, correct, or delete personal information. However, It would require covered businesses to:

• Make available "plain language" privacy policies;
• Allow consumers to opt out at any time from the "collection, transmission, storage, processing, selling, sharing or other use of non-sensitive personal information"; and
• Obtain opt-in consent for the use of sensitive personal information to the extent that that use is not described in the privacy policy of the covered business.

The ITPDCA also would empower the FTC to impose fines for first-time offenses, increase its ability to adopt rules, expand its authority to cover common carriers, increase its funding by $350 million, and allow it to hire 500 new full-time employees.

In "Inconsistent State Data Privacy Laws Increase Confusion and Costs," a March 2021 Perspectives from FSF Scholars, I sounded the alarm regarding the compliance burdens and consumer uncertainty that will result should Congress fail to establish a federal data privacy regime that preempts the growing number of state laws.

To date we have witnessed two states fill the void that exists at the national level: California (with both the CCPA, currently in effect, and the California Privacy Rights Act, approved by voters in November) and Virginia. Other states where legislation has been introduced include Florida, Minnesota, New York, Oklahoma, Washington State, and, most recently, Colorado.

MEDIA ADVISORY: FSF's Seth Cooper Reacts to Supreme Court's Decision on Media Ownership Rules

The following statement may be attributed to the Free State Foundation's Director of Policy Studies and Senior Fellow Seth Cooper regarding the U.S. Supreme Court's decision in FCC v. Prometheus Radio Project:

Today's unanimous decision by the Supreme Court rightly upholds the FCC's sensible decision to reform media ownership rules that date back to the 1970s. In an era of broadcast, cable, satellite, and Internet-enabled media abundance, government-imposed ownership restrictions on select legacy media outlets are arbitrary and they effectively restrict speech in tension with the First Amendment. As the Court found, the Commission's 2017 decision to remove some of its old media ownership rules was a reasonable exercise of the agency's statutory duty to periodically review and update those rules to fit with current marketplace conditions. Thankfully, Court's decision puts an end to the years-long analysis paralysis over media ownership regulation in the lower court.