Tag Archives: discrimination

What Survives from the Rosenworcel FCC?

Any time there is a change of administration at the White House the FCC gets a new Chairman and a new agenda – and we now know the new Chairman will be current Commissioner Brandon Carr. With a new Chairman comes new policies, but also a turn against some of the policies of the previous FCC. In today’s blog, I speculate on what might survive and what might get tossed from the agenda pushed by Chairwoman Jessica Rosenworcel.

There are a few things that obviously get reversed. First is net neutrality, which is poorly named and is really an effort to put some regulatory oversight on broadband. The new FCC has an interesting choice. Chairman Carr could act quickly to kill Title II regulation, like was done by Chairman Ajit Pai. The FCC could instead bide its time to see if the Courts kill it. Big ISPs appealed the reinstatement of Title II authority, and there is a chance that the Sixth U.S. Court of Appeals could side with the ISPs. That would be a stronger way to reject the issue than a reversal by the FCC.

It seems likely that Commissioner Carr will reverse Chairman Rosenworcel’s decision on discrimination. ISPs were strongly in favor of an intentional discrimination standard – one that means the FCC has to prove that an ISP is purposefully discriminating before it can take any action. The FCC instead chose a disparate discrimination standard, which means that discrimination can be proved by seeing the impact of ISP actions on the public. Congress required the FCC to adopt a discrimination standard, so it’s likely that the standard will be softened.

It gets a little harder after that to find policies that will get reversed. Part of the reason for this is that the Rosenworcel FCC wasn’t able to implement a lot of its ideas since it took several years to seat a fifth Democratic Commissioner after the 2020 election.

It will be interesting to see if the FCC will continue with plans for the 5G Plan for Rural America. This plan proposes to use $9 billion from the Universal Service Fund to bring new cell sites to rural America. The concept is popular, and I know a lot of rural counties that are excited about the idea. However, there is a big chance that a new FCC will instead reexamine the overall role of the USF – or that Congress will do so. The current USF is getting increasingly difficult to fund with a levy on voice services, and there are some aspects of the fund that are not popular in Congress.

For example, there are some big subsidies in the Universal Service Fund to build rural broadband, like finishing the RDOF and EACAM infrastructure spending. There are already rumors floating that there is a growing administration sentiment against spending federal money to build rural fiber. It would not be shocking to see these programs curtailed or even ended – possibly in favor of supporting rural satellite service.

There has been an open docket for a year looking at the issue of banning bulk billing for apartments. This is an attempt by the FCC to get more broadband choice for apartment tenants. This docket has been open for a long time with a lot of loud support against the idea from building owners and ISPs. This was always going to be tough to enforce since courts have often sided in the past with building owner rights over FCC rules. My guess is that this will never come up for a vote.

One of the big wins for the Rosenworcel FCC was an emphasis on going after spam robocallers. It’s hard to think this will be reversed, and more likely will be strengthened.

The FCC is always involved in a lot of issues that get little press. For example, the current FCC took another shot at making it easier to add fiber to poles. The FCC has been investigating ways to free up more wireless spectrum, although its hands have been tied when Congress let the ability for the FCC to auction spectrum lapse. It’s likely that most of the mundane things the FCC has been doing will continue.

How Canada Handles Net Neutrality

canada_flag-1920x1080Every country that wants an open Internet is wrestling with the same net neutrality issues that we face in the US. Canada has come up with a common sense approach that and some of what they have done could be applied here.

Telecom rules are administered in Canada by the CRTC (Canadian Radio-television and Telecommunications Commission) which has the same role as our FCC. Major telecom laws are formulated by the Canadian parliament just as they are done by our Congress, but the CRTC then has leeway to interpret the rules.

The CRTC regulates net neutrality along with other ISP behavior through its ITMP (Internet Traffic Management Practice) rules. These rules are implemented as follows:

  • Somebody must come to the CRTC with a credible complaint of discrimination by an ISP. The CRTC doesn’t have a standing list of things that ISPs can’t do, but instead investigates and sometimes creates rules based upon actual cases of discrimination.
  • The CRTC has developed definitions of various types of discrimination over the years. For example, they use a different standard to judge technical network issues than they do commercial issues such as how customers are billed. They have developed rules that we would label as net neutrality and any ISP practice that is imposed on users that, in effect, delays or prioritizes traffic from one type of user, source, protocol, application, content, service, or destination is likely to assumed to be discriminatory
  • An ISP gets an opportunity to justify the discrimination. In order to prevail an ISP must show that:
    • The practice is justified and that the solution they have implemented is narrowly designed to address a specific problem and does not cause other negative consequences;
    • The practice is done in such a way as to cause as little discrimination as possible;
    • They must show that any harm caused to customers is as minimal as is reasonably possible;
    • And they must show that there is not some other reasonable technological solution that would achieve the same goals with less or no discrimination.

These rules have just recently been strengthened on December 17 when Parliament passed a bill that adds significant fines to ISPs that are found guilty of discrimination. Fines of up to $10 million can be levied per infraction for first offenses and up to $15 million for subsequent offenses. This adds some teeth to net neutrality and other violations.

To some degree the Canadian telecom environment is a lot like ours. Canada has three large telcos – Bell, Rogers and Telus – that each are the predominant provider in different areas of the country. The country also has smaller competitors, but like us the company doesn’t have vigorous competition in a lot of markets.

Perhaps there is something to learn from the Canadian approach. It certainly is very pragmatic and the same regulatory process is used to judge a huge array of issues. It all stems back to a law passed years ago that said that telecom providers and ISPs can’t discriminate. The CRTC has used that one rule to achieve what would we call net neutrality rules. For example, in 2005 the CRTC faulted Telus which had blocked web access to pro-union websites that were striking against it. Earlier this year they ruled against Bell Canada for charging more for access to products that compete with ones that it owns. The Canadian system builds rules based upon the cases brought to it rather than crafting a big framework of rules up-front.

The Canadian system also treats wireline and wireless the same in terms of the way they treat customers or the way they operate their networks.

The new fines are the part of the Canadian law that I find to be the most attractive. Without significant financial penalties there is not much incentive for the large ISPs to change their behavior. I would venture to say that fines of $10 million and $15 million are probably not high enough for the US Market where a carriers might make hundreds of millions by discriminating. But it’s the right concept.

The Downside of Big Data

DARPA_Big_DataBig tech companies have been crowing about some of the amazing things that can be done using big data. For example, in the area of interacting with people, retailers are working hard to create personalized shopping experiences aimed at individual shoppers. Specials will pop up on cell phones as someone walks by a display that are aimed at them specifically. While many will feel this is an invasion of privacy, others are looking forward to an enhanced shopping experience. Big data promises to also personalize things like health care so that every doctor you ever see will truly understand your health history and they can guard against conflicting medicines and other things detrimental to your health.

But there are already downsides to big data. Big data is being used to put together a detailed portrait of everybody. And that leads to various degrees of profiling. The very same data that can be used to make your shopping experience better can also be used for many negative purposes. Consider some of the following examples:

  • The Chicago Police department apparently used big data to create a list of the 400 people in the community that they think are most likely to commit a murder. But then they went so far as to contact these people to tell them they were watching them. If anybody remembers the movie Minority Report, this feels like we are already reaching that time where the police convict people for crimes they are going to commit in the future.
  • Big data contains a lot of information about us – our age, race, sexual orientation, religion, weight, general health, number of kids or pets, state of our finances, etc. That kind of data can be easily used to discriminate against people in a variety of settings. We start entering a scary societal place when we use this kind of data to profile people for consideration for housing, employment, etc. There is already an industry of firms who sell this kind of profiling data to anybody for a fee. Where a prospective landlord used to check your credit report they can now find out everything about you. Let’s face it – people are bigoted or just biased and the availability of this kind of data makes it easy to redline or discriminate.
  • There is a big uptick in scams against the elderly who are being found through big data. The scams themselves are as old as the hills, but it’s the use of big data to identify the most vulnerable among us that is disturbing.
  • It was reported in 2012 that Staples displays different on-line prices to different customers based upon where they live. For example, customers who live close to a competitor might get cheaper prices than somebody who does not. But this same ability makes it easy to price differently based upon other factors and again can lead to redlining.
  • I have read where it is fairly easy to buy databases of people who have something in common – such as having diabetes, having tried to quit smoking, or nameless other traits. These lists can be used to market products specific to an ailment, but they also have been used for scams, blackmail and other nefarious purposes. It’s not hard to picture being able to take advantage of people with a gambling addiction or some other such problem.
  • The FAA’s Do Not Fly list is another result of big data and is notorious for containing names of toddlers and others who are obviously not a threat to national security. The list even ended up including several US Congressmen.

This all points to the need for some sort of legal protection of people from the misuse of big data. This is a hot topic in Europe right now but is not yet commonly debated here. Several civil rights groups have identified big data as a big threat and a new source for discrimination. But misuse of big data can go far beyond discrimination based upon race, religion or sexual orientation. Unfortunately it’s now possible to discriminate based upon a whole lot of other reasons as well.