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.

Senator Rubio Introduced New Privacy Bill

On January 16, 2019, Senator Marco Rubio (R-FL) introduced the "American Data Dissemination (ADD) Act." This legislation would require the Federal Trade Commission (FTC) to submit recommendations for privacy requirements to Congress using the Privacy Act of 1974 as a framework. 

The bill also would require the FTC to submit to the appropriate committees of Congress proposed regulations to impose privacy rules on "covered providers," which include Internet service providers and edge providers. Within two years of the bill's passage, if Congress does not enact a law based on the FTC's recommendations, the legislation would give the FTC the authority to promulgate a final privacy rule.

In 2018, Free State Foundation scholars submitted two sets of privacy-related comments to federal agencies: 

• "The Intersection between Privacy, Big Data, and Competition," Submitted to the FTC, August 20, 2018.

• "Developing the Administration's Approach to Consumer Privacy," Submitted to NTIA, November 9, 2018.

Don't Forbear Any Longer From Forbearance Reform!

There is a growing consensus that a new Digital Age Communications Act is needed that reflects the technologically dynamic, increasingly competitive digital age communications marketplace. The current "smokestack" regime, grounded in outdated techno-functional constructs that apply differential regulatory burdens to comparable competitive services, needs to go.   

But it is also pretty clear that it may be some time before the growing consensus leads to adoption of the necessary radical overhaul of the current law. 

In the meantime, Congress could simply modify one provision of the current law to require the Federal Communications Commission to act in a less regulatory fashion than the agency generally does now. 

Two years ago this month I published a Free State Foundation Perspectives entitled, "A Modest Proposal for FCC Regulatory Reform: Making Forbearance and Regulatory Review Decisions More Deregulatory." There I suggested that Congress amend the Communications Act's forbearance provision to make forbearance relief the viable deregulatory tool Congress intended when the Telecommunications Act of 1996 added the provision to the law. 

Section 10, the "forbearance provision," mandates that the Commission "shall forbear" from applying any regulation or statutory provision if the agency determines enforcement of such requirement "is not necessary" to ensure that a telecommunications carrier's charges and practices are reasonable and "not necessary for the protection of consumers," and that forbearance is consistent with the public interest. 

This provision is unique among regulatory statues, and Congress obviously intended the FCC to use it as a deregulatory tool. For example, under the provision, if the Commission does not deny a forbearance petition within the requisite statutory period, it is "deemed granted." In other words, by its terms, the statute evidences a deregulatory intention. 

As we have detailed over the years at the Free State Foundation, the FCC has employed its forbearance authority too sparingly, often refusing to acknowledge new realities that, in effect, mean consumers can be protected more effectively by the competitive marketplace than by outdated legacy regulations. For example, as my colleague Seth Cooper has demonstrated in "Forbearance Follies" and elsewhere, in denying several petitions for forbearance relief the agency simply dismissed wireless service as a competitive alternative to wireline service. The Commission acted this way despite the fact that over 30% of U.S. households have discontinued their wireline service. 

As I suggested in April 2011, to redress the FCC's reluctance to grant warranted regulatory relief, a sentence could be added at the end of Section 10(a) to the effect that: "In making the foregoing determinations, absent clear and convincing evidence to the contrary, the Commission shall presume that enforcement of such regulation or provision is not necessary to ensure that a telecommunications carrier's charges or practices are not unreasonable or unreasonably discriminatory or necessary for the protection of consumers and is consistent with the public interest." 

I explained in the "Modest Proposal" essay that establishing such an deregulatory evidentiary presumption in Section 10 "would not dictate the outcome of the Commission's assessment of any particular forbearance petition." That is not the intent. 

"But the presumption would require the Commission to grant regulatory relief absent the presentation of convincing evidence to the effect that the requisite consumer protection and public interest showings have not been made. This should make it more difficult, for example, for the Commission to ignore or minimize the significance of evidence of wireless substitution for wireline in performing a competition analysis." 

I made in clear in a blog posted in May 20111 that the amended forbearance provision incorporating the deregulatory evidentiary presumption should apply not only to telecom carriers, as is presently the case, but as well to cable operators and other entities regulated by the Commission. There is no reason that any entity subject to a Commission regulatory mandate should not be eligible to seek relief. 

It is a hopeful sign that there is increasing support for reform of the forbearance process as a means of granting regulatory relief when justified by competitive marketplace realities. In his superb keynote address at FSF's March 21 Fifth Annual Telecom Policy Conference, I was especially gratified that Senator Marco Rubio declared that the forbearance process should be reformed "so it is more difficult for the FCC to reject regulatory relief petitions when they are justified." This is exactly right. 

And, along the same lines, in his Conversation with me, Commissioner Pai stated that there is "no question the telecommunication marketplace in particular has undergone revolutionary change" and that it "is much more competitive than it has ever been." He agreed that my forbearance proposal was "interesting" because the Commission should be "more liberal in its application of forbearance authority." 

Immediately below, and also here, are links to the videos of Senator Rubio's keynote and the Conversation with Commissioner Pai. Of course, in addition to the remarks relating to forbearance, there is much more of value for those of a reform-minded bent. 

But, today, I am focusing on reforming the Communications Act's forbearance provision by inclusion of a deregulatory evidentiary presumption along the lines I have suggested in my proposal. 

Pending a much-needed wholesale overhaul of the Communications Act, reforming the forbearance process offers an interim avenue for spurring the FCC, more regularly, to grant justified regulatory relief that comports with the competitive realities of today's digital marketplace environment. 

I hope some reform-minded Senator or Representative – or a whole group of them – will pick up the reform cudgel and lead the effort. 

 

See Videos of Senator Rubio and Commissioner Pai from FSF's Fifth Annual Conference

Now available online is the video of Senator Marco Rubio's Keynote Address at FSF's Fifth Annual Telecom Policy Conference on March 21. It can be found at FSF's YouTube page and it's also embedded below.



The text of Senator Rubio's Keynote can be found here.

In addition, the YouTube video below features FSF President Randolph May's conversation with FCC Commissioner Ajit Pai at FSF's Fifth Annual Telecom Policy Conference.

Completing the Transition to a Digital World

With the Free State Foundation's March 21st Fifth Annual Telecom Policy Conference just days away now, naturally I've been doing a lot of thinking about the conference and its theme – "Completing the Transition to a Digital World: How to Finish the Job and Why It Matters." 

I acknowledge that, in many ways, there is significant overlap between this year's theme and that of the two preceding conferences. The Third Annual Conference theme was, "Broadband Policy: One Year After the National Broadband Plan," and the Fourth Annual Conference's was, "The Internet World: Will It Remain Free From Public Utility Regulation?" 

So, getting the right policies in place for broadband networks and the Internet has been the principal focus for the last few years, and even before. And rightly so. But with this year's theme – the emphasis is on "Completing " – I hope to invoke a greater sense of urgency as to why the U. S. needs to finish the job. 

Almost three years ago to the day, the FCC's National Broadband Plan was released.  It recognized that requiring incumbents to maintain two networks – the legacy analog networks that were built for POTS [Plain Old Telephone Service] and new digital broadband networks – "siphon[s] investments away from new networks and services." Thus, the Plan recommended that the Commission initiate a proceeding to "ensure that legacy regulations and services did not become a drag on the transition to a modern and efficient use of resources." Accordingly, the Commission needed to "start considering the necessary elements of this transition in parallel with efforts to accelerate broadband adoption and deployment." [The Plan's Executive Director, Blair Levin, now a Fellow at the Aspen Institute's Communications and Society Program, will deliver closing remarks at this Thursday's conference.] 

Last November, AT&T filed a petition with the Commission asking the agency to launch a proceeding "to facilitate the 'telephone' industry's continued transition from legacy transmission platforms and services to new services based fully on the Internet Protocol ('IP')."  The Commission has done so, comments and reply comments have been submitted, and today the agency is holding a "Technology Transitions" workshop. 

This is all well and good, even commendable. And I don't want to be a scold. But truth be told: The Commission still is behind the times, still beset by a twentieth-century regulatory mindset. 

There must be a greater sense of urgency for reform. 

After all, as I have pointed out before, it was in December 2000 when then-FCC Commissioner Michael Powell (subsequently FCC Chairman and now President of the National Cable & Telecommunications Association) delivered his stirring call to action regarding what he called "The Great Digital Broadband Migration."  Mr. Powell articulated the challenges facing policymakers in light of the "the great technological migration" from narrowband to broadband, from analog to digital, that already had begun: the need to focus on innovation incentives; to implement deregulation of competitive markets; to rationalize the regulatory structure to account for the "bit is a bit" phenomenon; and to improve regulatory procedures to make agency decision-making more efficient. 

And, in the context of urging the Commission to reform its regulatory process, Mr. Powell bluntly declared: "Our bureaucratic process is too slow to respond to the challenges of Internet time." In my judgment, this has not changed in the ensuing dozen years." [I bet Michael Powell agrees with me. But, if not, he will be participating at this Thursday's conference, and he can say so.] 

There must be a greater sense of urgency for reform. 

As most of you know, Senator Marco Rubio is delivering a keynote address, in which he is expected to focus on his telecommunications priorities, including Internet policy and governance and spectrum policy issues. And I will conduct an informal, wide-ranging conversation with FCC Commissioner Ajit Pai. [Note this program change: Due to an unavoidable scheduling conflict, Senator Rubio now will be speaking at 1:00 PM, during the lunch session, and my conversation with Commissioner Pai will begin at 9:00 AM, immediately after my welcome and introduction at 8:50 AM. The agenda with the revised schedule is here.] 

In addition to the keynote sessions with Senator Rubio and Commissioner Pai, and Blair Levin's closing remarks, there will be three panels of prominent experts in which all of today's important communications policy topics will be discussed. I'm sure the panelists will be delving into the details of topics ranging from the IP-Transition to net neutrality, from program carriage requirements to retransmission consent disputes, from program access mandates to special access controversies, from data caps to spectrum caps, from USF reverse auctions to spectrum forward auctions, and much more. I'm confident that, however much you already know, or think you know, you'll learn a lot more. I always do. 

But amidst all of the nitty-gritty policy details that will be addressed, I hope you will think along with me about how the discussion relates to the bigger picture – how the conversation fits into the overall theme of "Completing the Transition to a Digital World," and into the frame of the larger, fundamental questions still confronting policymakers who too often are still hobbled with an analog-era mindset. 

These larger, fundamental questions include: 

•   Will Internet service providers in the digital broadband world remain free from the legacy, public utility-style regulations that characterized narrowband service providers in the analog world, or will today's digital broadband services be subjected to public utility-style regulation, through the imposition of net neutrality mandates or otherwise? 

•                Or, the same question, put more directly in a frame posited by Susan Crawford in her new book, "Captive Audience": Will today's digital cable operators and other broadband operators be regulated under a "utility model" – her words – in the very same manner as twentieth century electric utilities and nineteenth century railroads? 

•                Or, the same question, put in a slightly different frame in light of a report issued just last week by a French government advisory panel recommending that net neutrality regulations be applied not only to Internet service providers but also to search engines and social networks: Will net neutrality regulations in this country inevitably be extended to reach dominant search engines and social networks, especially in light of the fact that many of the pro-regulatory forces in this country look favorably upon European regulatory models?  

•                In today's competitive broadband marketplace environment fostered by digital technologies, when consumers have an abundance of news, information, and entertainment choices, will cable, telephone, and satellite video providers, finally enjoy the same First Amendment free speech rights as the print media, or will they continue to be treated as second class citizens for First Amendment purposes?

•                 In an environment in which spectrum constraints, fueled by ongoing exponential growth in wireless broadband usage for video and other high-bandwidth applications, are widely acknowledged, will the Commission adopt more free market-oriented spectrum policies characterized by flexible use, unencumbered auctions, and facilitation of secondary market transactions, or will the agency retain traditional command-and-control rules designed to micro-manage markets?

The way in which policymakers answer these fundamental questions – and all the questions subsumed under them – will impact, for better or worse, all American consumers and the nation's social and economic well-being. At the Free State Foundation, we firmly believe the answers to the questions properly are to be found in a commitment to free market-oriented, property rights-protective, and First Amendment-friendly principles. Whatever your own beliefs, however, I am confident you will find the sessions at FSF's Fifth Annual Telecom Conference not merely interesting and informative, but stimulating and lively.    

I hope to see you on Thursday. The current agenda is here. Again, please note that my conversation with Commissioner Pai will begin at 9:00 AM and Senator Rubio will deliver his keynote address at 1:00 PM. 

Registration is complimentary, but you absolutely must register to attend. If you haven't already, you may register here. 

BTW, the Twitter handle for the conference is: #FSFconf