TMT with Mike O'Rielly - Ep 21: International Communications

Episode 21 of "TMT with Mike O'Rielly," a videocast featuring former FCC Commissioner and Adjunct Senior Fellow at the Free State Foundation Michael O'Rielly, was released on May 2. In this episode, titled "International Communications Procedures and Policies," Mr. O'Rielly has a conversation with guest David A. Gross, Partner at Wiley Rein and a former Ambassador when serving as U.S. Coordinator for International Communications and Information Policy, U.S. Department of State. Their conversation includes topics such as spectrum coordination in the U.S. global spectrum harmonization, and the World Radiocommunication Congress (WRC). Streaming video of the episode is now available: 

The PATRIA Y VIDA Act Would Help Defeat Despotic Restrictions on Internet Access

Today, Sen. Marco Rubio introduced the Protecting Against Tyrants by Restoring Internet Access and Yielding Vital Interconnectivity in Designated Areas Act – or PATRIA Y VIDA Act. In the words of Sen. Rubio's press release, the bill would "build a strategy to protect internet freedom worldwide and strengthen support for technologies that allow users to evade foreign government-backed censorship and restrictions." The legislation would require the federal government to support and deploy Internet censorship circumvention technologies so that people located in foreign nations Cuba and China that are subject to authoritarian rule can access information. The bill's title commemorates the Cuban peoples' protests from July of this year against their despotic leaders who censored Internet access in that country. 

Sen. Rubio surely is right that the PATRIA Y VIDA Act is important legislation. The Senate should promptly take up consideration of the bill, which would direct the U.S. to do more to push back against despotic foreign regimes.

U.S. Delegation Members Highlight U.S. Gains for 5G at International Conference

On January 7, 2020, the Federalist Society's Practice Group Podcast featured a teleforum discussion on "The Race to 5G and the World Radio Conference." The panel included Ambassador Grace Koh, who led the U.S. delegation to WRC-19, as well as the FCC's International Bureau Chief Thomas Sullivan. WRC-19 was held in Egypt and concluded its work in November 2019. The panelists offered interesting analysis of what was accomplished at WRC-19 regarding mobile wireless services, particularly regarding the use of mmWave spectrum for 5G services. Panel discussion also touched on U.S. cooperative efforts with regional partner nations, the 24 GHz band, and the postures of China and Russia at WRC-19. The podcast's page can be found here.

Free State Foundation scholars, including FSF President Randolph May, Visiting Senior Fellow Gregory Vogt, and myself have addressed 5G in a number of writings. Expect more from FSF scholars on 5G in 2020, including at the Free State Foundation's Twelfth Annual Telecom Policy Conference. This year's conference, Broadband Beyond 2020: Competition, Freedom, and Privacy, will be held at the National Press Club in Washington, DC on March 10. Register for the conference here.

My June 2019 blog post, "U.S. Policymaker Should Stick to Their 24 GHz Spectrum Band Plan," addressed disagreement among certain federal agencies regarding the use of that recently-auctioned spectrum. Importantly, the panelists on the Federalist Society's January 7 teleforum acknowledged that the U.S. delegation had achieved a united front on the 24 GHz band when it arrived in Egypt for the WRC-19. 

Thinking the Unthinkable - Part II

In Scott Cleland’s recent piece titled, “Silicon Valley’s Biggest Internet Mistake,” he makes an important, too little addressed point: Were the FCC to classify Internet service as a “telecommunications” service under Title II of the Communications Act, this drastic step likely would have significant adverse international ramifications.

In a September 29 paper titled, “Thinking the Unthinkable: Imposing a ‘Utility Model’ on Internet Providers,” I explained, from a purely domestic policy perspective, why FCC imposition of the Title II common carrier utility model on broadband Internet providers should be “unthinkable.” The adverse international consequences provide another reason. 

As Scott explains in his commentary:

Legally, “telecommunications” is what international treaties and agreements regulate like a utility, under the Constitution of the United Nations’ International Telecommunications Union (ITU). Specifically, ITU agreement: ITU-T D.50, recognizes the sovereign right of each State to regulate “telecommunications” as that State determines. Apparently, Silicon Valley interests are blind to the many risks of “telecommunications” regulation to their foreign businesses….[T]he FCC reclassifying the American Internet as “telecommunications” predictably would invite most every other country to reclassify their Internet traffic as “telecommunications” too, so that they could impose lucrative price tariffs on Silicon Valley’s dominant share of Internet traffic into their countries.

This is not an unjustified concern. Indeed, there is rising apprehension in many quarters about the designs of many foreign countries harbor to exert more government control over Internet traffic within their own countries and, indeed, throughout the world through international organizations. Especially at a time when the U.S. has embarked on a process that is intended to lead to a new governance structure for ICANN, the FCC – and the entire U.S. government – ought to be concerned about actions here at home that are likely to be construed by foreign governments as authorizing more government interference in Internet operations.

In fact, this very concern regarding the international ramifications resulting from FCC adoption of net neutrality regulations was expressed by Ambassador Philip Verveer in May 2010 in his capacity as the State Department’s Coordinator for International Communications and Information Policy. Of course, Philip Verveer now serves as Senior Counselor to FCC Chairman Tom Wheeler.

Answering a question at a Media Institute luncheon as the FCC was considering the then-pending net neutrality rulemaking, according to the report in Broadcasting & Cable, Ambassador Verveer said this:

"I can tell you from my travels around the world and my 
discussions with figures in various governments around the world there is a
very significant preoccupation with respect to what we are proposing with 
respect to broadband and especially with respect to the net neutrality."

Most significantly, Ambassador Verveer went on to say that the net neutrality proceeding "is one that could 
be employed by regimes that don't agree with our perspectives about essentially
 avoiding regulation of the Internet and trying to be sure not to do anything to
damage its dynamism and its organic development. It could be employed as a
 pretext or as an excuse for undertaking public policy activities that we would
 disagree with pretty profoundly."

Of course, many others were saying much the same at the time, but Ambassador Verveer was subjected to a harsh attack by Public Knowledge’s Harold Feld for deviating from what Mr. Feld considered to be the established Democratic party line. He wondered how someone as experienced as Mr. Verveer “manage[d] to get so off message at precisely the wrong time.”

I happen to think that Mr. Verveer’s job was not primarily to stay “on message,” but rather to serve the American people by explaining the risks of adopting an ill-advised policy. I have known Phil Verveer since we served together at the FCC in the late 70s and early 80s, and I have a high regard for his qualifications and his dedication to public service. At the time of Mr. Feld’s attack, I defended him. And shortly thereafter, in the context of responding to another of Mr. Feld’s blogs, this time urging FCC Chairman Julius Genachowski to act quickly to adopt net neutrality regulations “to fire up the base before the election,” I called Mr. Verveer a “stellar public servant.”

Nothing has changed my view that Phil Verveer is a stellar public servant. But I do wish he would avail himself of the opportunity once again to explain that the concerns he expressed in 2010, when he was responsible for coordinating international communications policy on behalf of the U.S., are still valid today. Regardless of whatever good intentions may be expressed, if the U.S. government adopts new net neutrality mandates, especially in conjunction with classifying Internet providers as “telecommunications” carriers, other countries may well use such action as an excuse or pretext for, in Ambassador Verveer’s words, “undertaking public policy activities that we would
 disagree with pretty profoundly.”

In other words, despite any protestations to the contrary uttered by U.S. officials, the FCC’s actions regulating Internet providers will speak louder than its words. Other countries, with obvious designs on exerting more control over Internet communications, and over international entities that play a role in managing Internet communications, will seize upon the FCC’s action as a justification.

Scott Cleland is right that this would not be good for Silicon Valley.

I would go further: When then-FCC Chairman Bill Kennard in 1999 rejected dumping what he called the telephone world’s “whole morass of regulation” on the then-emerging cable broadband systems, he concluded, “That is not good for America.”

Dumping the telephone world’s “whole morass of regulation” on broadband Internet providers still would not be good for America today. Indeed, it ought to be unthinkable.

WCIT – A Hot Topic

Free State Foundation President Randolph May will participate as a panelist, Thursday, June 28, 2012, at the Federal Communications Bar Association’s program, “The 2012 WCIT: Crafting International Telecommunication Regulations for the Twenty-First Century.” The program focuses on the upcoming World Conference on International Telecommunications (WCIT), at which Internet governance issues will be addressed. 

The Free State Foundation recently held a standing-room-only seminar at the National Press Club on the December 2012 WCIT conference taking place in Dubai. The FSF program was broadcast live on C-SPAN. 

You can also read Mr. May’s blogs on the WCIT conference here, here, and here.

Don't Let W-C-I-T Become W-I-C-K-E-D

In anticipation of the upcoming World Conference on International Telecommunications ("WCIT") in Dubai this December, the House Energy and Commerce Committee today approved by voice vote a resolution to “preserve and advance the multistakeholder governance model under which the Internet has thrived." The WCIT conference is conducted under the auspices of the UN's International Telecommunications Union. The House of Representatives is expected to consider the resolution, H. Con. Res. 127, in fairly short order. 

Introduced by Rep. Mary Bono Mack of California, the resolution states that the U.S. Government "should continue working to implement the position of the United States on Internet governance that clearly articulates the consistent and unequivocal policy of the United States to promote a global Internet free from government control and preserve and advance the successful multistakeholder model that governs the Internet today." 

The vote commendably was entirely bipartisan, with the leaders of both parties speaking in favor of the resolution in the Commerce Committee. 

It is very important for the future of the Internet and its multistakeholder governance model that the U.S. continues to fight hard at the WCIT conference and beyond for the position stated the resolution. 

And it bears pointing out that if the U.S. truly is going to be effective in asserting leadership in this area on a long-term basis – because the threats to the Net will not likely end with the WCIT conference – the U.S. government must lead by its own example. Thus, when the concern is to maintain the Internet "free from government control," the U.S. government must be mindful of its own actions. For instance, the FCC's adoption of net neutrality mandates and data roaming regulations are problematic in this respect in that each action asserts government control over aspects of Internet services. 

Perhaps one salutary byproduct from the bipartisan effort to ensure the U.S. leads the fight abroad to keep the Internet free from government control will be to make the FCC more aware than it heretofore has been that it should refrain from taking actions that denigrate the same freedom from control here at home. 

This is an issue that ought to engage all U.S. citizens. If you want to learn more, please watch the C-SPAN video of the Free State Foundation's May 30 seminar at the National Press Club. The program features an outstanding panel including, FCC Commissioner Robert McDowell and Richard Beaird, the U. S. State Department's Senior Deputy Coordinator for International Communications and Information Policy. 

And my recent blog, "Free Speech on the Internet, Except in Cases…" explains how some of the proposals put forward for consideration at the WCIT conference would directly threaten the free speech that today largely characterizes the Internet. 

Another venue for keeping up with developments is the newly-established WCITLEAKS.ORG site. 

Stay tuned for more on this as preparations continue for the WCIT conference.   

Free Speech on the Internet, Except in Cases...

Last Wednesday's Free State Foundation seminar, "The Multi-Stakeholder Privatized Internet Governance Model: Can It Survive Threats From The UN?", was educational concerning threats to the current "bottoms up" privatized Internet governance system posed by the upcoming WCIT 2012 international conference in Dubai. In short, other countries may put forward proposals at WCIT 2012 this December that could alter the current multi-stakeholder Internet model by revising the existing international telecommunications regulations in ways that would sanction inter-governmental control over important aspects of the Internet.

The WCIT – "World Conference on International Telecommunications" – is run by the International Telecommunications Union, a United Nations treaty organization with 193 member countries. Each of these countries has one vote at ITU conferences. 

At FSF's seminar, the nature of the potential changes to Internet governance, and their implications, were ably explained by the panel, which included FCC Commissioner Robert McDowell and Richard Beaird, the U. S. State Department's Senior Deputy Coordinator for International Communications and Information Policy. I was pleased, and grateful, that C-SPAN broadcast the event live, and you can watch the C-SPAN video here. The video is an excellent resource for understanding what's at stake in the upcoming WCIT. 

I just want to emphasize one point here. At the seminar, I suggested that, in addition to changes that could impact matters such as the assignment of domain names, technical standards, and the like, some proposals, if adopted, could impact the free flow of information that, for the most part, currently characterizes the Internet. 

Google's Rick Whitt provided an example of one such proposal that, in effect, would confer explicit authority on governments to censor speech. Rick quoted a Russian proposal that would alter the current text of the ITU regulations so they would state: 

“Member States shall ensure unrestricted public access to international telecommunication services and the unrestricted use of international telecommunications, except in cases where international telecommunication services are used for the purpose of interfering in the internal affairs or undermining the sovereignty, national security, territorial integrity and public safety of other States, or to divulge information of a sensitive nature.” 

Obviously, this is a case in which the "exception" might easily be invoked to swallow the rule. If this formulation were to be embodied in the ITU treaty, repressive regimes around the world – no need to name them here, and there are far too many – would be given a ready cover for censoring speech they would prefer to keep from their citizens. 

Now I am not naïve. I understand that any country, if it wishes to do so, can attempt, through technological means, brute force, or otherwise, to censor Internet speech within its borders, for example, by requiring Internet providers within the country to use government-sanctioned and government-monitored speech filters. Some repressive regimes will try to censor Internet speech whether or not the ITU regulations are revised along the lines proposed by Russia. 

But that is not the point. 

Rather the point is that presently the ITU regulations do not sanction governmental interference with communications on the basis that a communication's purpose is to interfere "in internal affairs" or "divulge information of a sensitive nature" or the like. Under the Russian proposal, the regulations would do so explicitly, providing a nation inclined to inhibit the free flow of information and to suppress free speech cover for doing so. 

This is just one example – but an important one – concerning why the U.S. government, and private organizations representing all facets of civil society, should work hard to prevent proposals from being adopted at WCIT, or at other future ITU conferences, that would confer governmental control over the Internet. Commendably, this is an issue that enjoys broad bipartisan support in the U.S. 

As long as governments keep their hands off and do not seek to control or manage the Internet, it will remain a marvelous instrument for facilitating free expression and the free flow of ideas here and around the world.