Analysis

[Commentary] Network neutrality rules are not the way to maintain a free and open Internet, according to Michael Katz, professor of economics and director of the Center for Telecommunications and Digital Convergence in the Haas School of Business at the University of California, Berkeley. Regulation never “levels” a playing field because that assumes we know the optimal balance between firms. We don’t, and if an optimal balance exists today it might be different tomorrow.

In this case, proponents believe tilting the field more towards edge providers is important for innovation. One problem with that belief, Katz argues, is that the Internet has never been neutral. For example, the Internet was designed in a way that “works relatively poorly for applications that are highly sensitive to packet loss and require very low latency (e.g., telepresence) and works relatively well for applications that require little bandwidth and are not time sensitive (e.g., email).” Another problem with the level playing field argument is that it should apply to many industries and services, not just the Internet. Yet, we know that paid prioritization has become crucial in other areas, like package delivery (think FedEx, UPS, or expedited shipping in e-commerce). Finally, the argument tends to focus on particular firms that might not do well with paid prioritization at the expense of consumer welfare. However, consumer welfare may be improved by new services that cannot currently exist, or must exist via workarounds that are not technically “paid prioritization.” The point is not that one of these necessarily outweighs the other, only that it is incorrect to automatically conclude that the net effect of paid prioritization is negative.

Twenty years ago, on June 26, 1996, the US Supreme Court unanimously decided Reno v. American Civil Liberties Union, which found the communications decency provisions of the Telecommunications Act of 1996 to be unconstitutional. Applying strict scrutiny under the First Amendment, the Supreme Court concluded that unlike broadcasting – where the Federal Communications Commission’s indecency regulation has been upheld due to the unique characteristics of that medium – no content regulation with a justification of online child protection would be allowed. This means that there continues to be no content restrictions on what American internet users can send or receive.

Viewed in contemporary context, two lessons from Reno v. ACLU endure. First, as a constitutional law matter, there is a firewall for US government restrictions on any non-obscene online content. In turn, this virtually unfettered freedom has fueled the pervasiveness of the internet in our lives. Remember, Facebook and the world of online apps – which now exceed websites as the go-to sources online – did not even exist then. Mark Zuckerberg was only 13 years old when the court decision was released, and other app content pioneers such as Snapchat’s Evan Spiegel were still in elementary school.

This leads to the case’s second legacy, which is more implicit but also of great importance. Given the continuing inability to predict the speed and scale of internet development or changing consumer preferences, there seems to be a subtext in that government may find it difficult to develop broad prescriptive long-lasting approaches to internet regulation. The FCC favored this ex ante approach when crafting the Open Internet order under the Obama Administration. Under new FCC Chairman Ajit Pai, the agency seems to favor a revision that limits government oversight to the Federal Trade Commission’s traditional enforcement authority. As the FCC compiles its rulemaking record to justify this significant change in approach, it would not be surprising to see the Reno v. ACLU decision used to support a return of this light-touch regulatory framework.

The hasty effort in New York to pass a right-of-publicity bill ended—for now—recently after the state assembly sponsor pulled his bill and the senate appeared unwilling to advance its own version until the assembly acted. Media organizations had opposed the legislation: The National Press Photographers Association said the assembly bill would “unconstitutionally deprive” its members “of the right to exercise property and copyright interests in their still, filmed, and recorded images.” And a broad coalition—including the Reporters Committee for Freedom of the Press, the Media Law Resource Center, and the New York News Publishers Association—ran a full-page ad in the Albany Times-Union calling the bills “an attack on the First Amendment.”

But what’s the right of publicity, anyway? And why were media organizations so concerned about the bills? Those two questions are worth answering: Many states have some kind of publicity-related law on the books, and it’s likely that another New York bill will be introduced in the fall.

Students increasingly must gain 21st century technology skills to succeed in life after high school. Despite the technological shift driven by rapid innovations, approximately 5 million US households with school-age children still do not have access to high-speed Internet at home. The paper gives school leaders guidance to improve digital access in their communities.

In addition, CoSN puts forth recommendations for districts to build and strengthen their networks and identifies funding opportunities for school systems to improve digital equity. These include leveraging capital expenditures, operational expenditures, federal and state funds, bonds, levies, grants, and in-kind and school-to-business partnerships to address digital equity. “School-to-Home” details the main barriers to extending broadband to homes nationwide. These include assessing size of the connectivity problem and addressing the need for adequate Internet access at home and in the community, particularly for students from low-income homes. Despite cost and lack of fiber or high-speed Internet availability, some districts are improving Internet access by promoting public Wi-Fi access, providing Internet in school parking lots and athletic fields, and establishing portable loaner Wi-Fi hotspots for student use to take home to do school work.

The Citizens Broadband Radio Service (CBRS) has not even been born yet, but already major industry players want to change its basic character. CBRS, as its name implies, was conceived and approved by the Federal Communications Commission a couple of years ago as a broadband service for locally-focused businesses. The regulatory paradigm included both a large swathe of generally authorized access (also termed “licensed by rule”) channels that would be made available opportunistically to any entity and licensed channels made available on a census-tract basis for generally non-renewable three year terms. This generated quite a bit of opposition from larger carriers who insisted that the small license areas and short, non-renewable terms would make the band unsuitable for significant investment.

Yet the FCC stuck to its vision for this “citizen”-oriented service and adopted rules which are now effective, though users cannot be up and operating until the spectrum managers begin administering access to the spectrum.

This paper reviews experiences with subsidizing telecommunications services, and broadband in particular, in the United States and around the world. Based on those lessons it proposes a path forward intended to yield the biggest broadband bang for the subsidy buck.

Specifically, an effective broadband subsidy program would:
Set a single, clear objective: bring broadband service to populated areas that do not have it.
Define “broadband” by taking into account consumer demand characteristics. This definition should be use-centric, not technology-centric. Any technology should be eligible to participate in the auction.
Make the program a one-time subsidy.
Rank-order the bids in terms of cost-effectiveness in terms of new locations, not area, connected per subsidy dollar. Fund the most cost-effective project first, the next most costeffective second, and so on until the budget is exhausted.
Rigorously evaluate the results and have organizations other than the one implementing the program conduct the evaluations.

One of the central arguments in the Net Neutrality debate is over whether the Federal Communications Commission’s controversial 2015 decision to reclassify broadband Internet access as a common carrier “telecommunications” service had a negative effect on network investment in 2016. The evidence is mounting that it did. Free Press believes the consistency in the data does not carry over to Broadband Service Providers’ (“BSPs”) advocacy, however. Comparing statements made by BSPs to the FCC and to Wall Street, Free Press contends that these apparent inconsistencies imply that the companies are lying to the Commission and to the public about the effect of Title II on investment. The Internet Association—a trade group of companies favoring aggressive Internet regulation—recently borrowed from Free Press’s report to produce an online video summarizing the Free Press narrative.

Ford subjects Free Press and the Internet Association’s anecdotal evidence to review, and finds that it is Free Press and the Internet Association—and not BSPs—who are not telling the whole story. Free Press and the Internet Association have presented a false narrative to both the FCC and the public at large, and that their evidence actually points to the harms of reclassification on investment incentives.

No matter how ready a city is to move toward advanced mobility models, municipal officials can already begin developing a vision for what integrated mobility ought to look like and how their cities might evolve accordingly. More important, they can consider how to manage the transition so that its benefits are maximized in line with local priorities for improving residents’ quality of life.

To help city leaders structure their thinking, we have created scenarios for how mobility might change in three types of cities: dense cities in developed economies, dense cities in emerging economies, and sprawling metropolitan areas in developed economies. Each scenario accounts for present-day conditions and highlights both opportunities and challenges. In this article, we lay out these visions for the future of mobility, along with ideas about how municipal officials and other urban stakeholders can help their cities navigate toward positive outcomes.

[Commentary] On June 19, 2017, the Supreme Court of the United States used an unlikely vehicle to expand the scope of First Amendment protection for Internet users. In Peckingham v. North Carolina, speaking for five members of the Court, Justice Anthony Kennedy started with the general principle that the Court has always recognized the “fundamental principle of the First Amendment ... that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” This is the second important Supreme Court opinion addressing the role of the Internet in American life. The first, Reno v. ACLU, was issued in 1997, during the Internet’s dial-up era. Its depiction of the Internet as a medium deserving the same high degree of First Amendment protection as traditional print media played an essential role in the legal framework for the Internet’s evolution over the last two decades. Justice Kennedy’s Peckingham decision consciously builds upon Reno’s recognition of the Internet as offering “relatively unlimited low-cost capacity for communication of all kinds,” specifically citing how people use Facebook (“users can debate religion and politics with close friends ... or share vacation photos”), LinkedIn (“users can look for work [or] advertise for employees”) and Twitter (“users can petition their elected representatives and otherwise engage with them in a direct manner”) as examples. Justice Kennedy stressed the importance of insuring that the law leave ample room for the further evolution of the Internet’s platform for free expression.

[Andrew Jay Schwartzman is the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation]

Amazon’s acquisition of Whole Foods is the M&A deal of the year, with the potential to massively reroute consumer retail spending. The spillover effects of economic disruption at this scale – both positive and negative – are beyond anyone’s capacity to predict. That said, only a fool would claim that Amazon is not having society-wide impacts, including exacerbating the age-old tension between labor and technology capital.