Can the FCC Regulate Social Media?

There has been a lot of talk lately from the White House and Congress about having the FCC regulate online platforms like Facebook, Twitter, and Google. From a regulatory perspective, it’s an interesting question if current law allows for the regulation of these companies. It would be ironic if the FCC somehow tried to regulate Facebook after they went through series of legal gyrations to remove themselves from regulating ISPs for the delivery and sale of broadband – something that is more clearly in their regulatory wheelhouse.

All of the arguments for regulating the web companies centers around Section 230 of the FCC rules. Congress had the nascent Internet companies in mind when the wrote Section 230. The view of Congress was that the newly formed Internet needed to be protected from regulation and interference in order to grow. Congress was right about this at the time and the Internet is possibly the single biggest driver of our current economy. Congress specifically spelled out how web companies should be viewed from a regulatory perspective.

There are two sections of the statute that are most relevant to the question of regulating web companies. The first is Section 230(c)(1), which states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

This section of the law is unambiguous and states that an online platform can’t be held liable for content posted by users. This would hold true regardless of whether a platform allows users free access to say anything or if the platform heavily moderates what can be said. When Congress wrote Section 230 this was the most important part of the statute, because they realized that new web companies would never get off the ground or thrive if they have to constantly respond to lawsuits filed by parties that didn’t like the content posted on their platform.

Web platforms are protected by first amendment rights as publishers if they provide their own content, in exactly the same manner as a newspaper or magazine – but publishers can be sued for violating laws like defamation. But most of the big web platforms don’t create content – they just provide a place for users to publish content. As such, the language cited above completely shields Facebook and Twitter from liability, and also seemingly from regulation.

Another thing that must be considered is the current state of FCC regulation. The courts have given the FCC wide latitude in interpreting its regulatory role. In the latest court ruling that upheld the FCC’s deregulation of broadband and the repeal of net neutrality, the court said that the FCC had the authority to deregulate broadband since the agency could point to Congressional laws that supported that position. However, the court noted that the FCC could just as easily have adopted almost the opposite position, as had been done by the Tom Wheeler FCC, since there was also Congressional language that supports regulating broadband. The court said that an agency like the FCC is only required to find language in Congressional rules that support whatever position they take. Over the years there have been enough conflicting rules from Congress to give the FCC a lot of flexibility in interpreting Congressional intent.

It’s clear that the FCC still has to regulate carriers, which is why landline telephone service is still regulated. In killing Title II regulation, the FCC went through legal gymnastics to declare that broadband is an ‘information service’ and not a carrier service.

Companies like Facebook and Google are clearly also information services. This current FCC would be faced with a huge dilemma if they tried to somehow regulate companies like Facebook or Twitter. To do so would mean declaring that the agency has the authority to regulate information service providers – a claim that would be impossible to make without also reasserting jurisdiction over ISPs and broadband.

The bottom line is that the FCC could assert some limited form of jurisdiction over the web companies. However, the degree to which they could regulate them would be seriously restricted by the language in Section 230(c)(1). And any attempt to regulate the web companies would give major heartburn to FCC lawyers. It would force them to make a 180-degree turn from everything they’ve said and done about regulating broadband since Ajit Pai became Chairman.

The odds are pretty good that this concept will blow over because the FCC is likely to quietly resist any push to regulate web companies if that means they would have to reassert jurisdiction over information service providers. Of course, Congress could resolve this at any time by writing new bills that would explicitly regulate Google without regulating AT&T. But as long as we have a split Congress, that’s never going to happen.

New European Copyright Laws

I’ve always kept an eye on European Union regulations because anything that affects big web companies or ISPs in Europe always ends up bleeding over into the US. Recently the EU has been contemplating new rules about online copyrights, and in September the European Parliament took the first step by approving two new sets of copyright rules.

Article 11 is being referred to as a link tax. This legislation would require that anybody that carries headlines or snippets of longer articles online must pay a fee to the creator of the original content. Proponents of Article 11 argue that big companies like Google, Facebook and Twitter are taking financial advantage of content publishers by listing headlines of news articles with no compensation for the content creators. They argue that these snippets are one of the primary reasons that people use social media and they browse articles suggested by their friends. Opponents of the new law argue that it will be extremely complicated for a web service to track the millions of headlines listed by users and that they will react to this rule by only allowing headline snippets from large publishers. This would effectively shut small or new content creators from gaining access to the big platforms – articles would be from only a handful of content sources rather than from tens of thousands of them.

Such a law would certainly squash small content originators like this blog. Many readers find my daily blog articles via short headlines that are posted on Twitter and Linked-In every time I release a blog or when one of my readers reposts a blog. It’s extremely unlikely that the big web platforms would create a relationship with somebody as small as me and I’d lose my primary way to distribute content on the web. I guess, perhaps, that the WordPress platform where I publish could make arrangements with the big web services – otherwise their value as a publishing platform would be greatly diminished.

This would also affect me as a user. I mostly follow other people in the telecom and the rural broadband space by browsing through my feed on Twitter and LinkedIn to see what those folks are finding to be of interest. I skip over the majority of headlines and snippets, but I stop and read news articles I find of interest. The beauty of these platforms is that I automatically select the type of content I get to browse by deciding who I want to follow on the platforms. If the people I follow on Twitter can’t post small and obscure articles, then I would have no further interest in being on Twitter.

The second law, Article 13 is being referred to as the upload filter law. Article 13 would make a web platform liable for any copyright infringements for content posted by users. This restriction would theoretically not apply to content posted by users as long as they are acting non-commercially.

No one is entirely sure how the big web platforms would react to this law. At one extreme a platform like Facebook or Reddit might block all postings of content, such as video or pictures, for which the user can’t show ownership. This would mean the end of memes and kitten videos and much of the content posted by most Facebook users.

At the other extreme, this might mean that the average person could post such links since they have no commercial benefit from posting a cute cat video. But the law could stop commercial users from posting content that is not their own – a movie reviewer might not be able to include pictures or snippets from a film in a review. I might not be able to post a link to a Washington Post article as CCG Consulting but perhaps I could post it as an individual. While I don’t make a penny from this blog, I might be stopped by web platforms from including links to news articles in my blog.

In January the approval process was halted when 11 countries including Germany, Italy, and the Netherlands said they wouldn’t support the final language in these articles. EU law has an interesting difference from US law in that for many EU ordinances each country gets to decide, within reason, how they will implement the law.

The genesis of these laws comes from the observation that the big web companies are making huge money from the content created by others and not fairly compensating content creators. We are seeing a huge crisis for content creators – they used to be compensated through web advertising ‘hits’, but these revenues are disappearing quickly. The EU is trying to rebalance the financial equation and make sure that content creators are fairly compensated – which is the entire purpose of copyright laws.

The legislators are finding out how hard it will be to make this work in the online world. Web platforms will always try to work around laws to minimize payments. The lawyers of the web platforms are going to be cautious and advise the platforms to minimize massive class action suits.

But there has to be a balance. Content creators deserve to be paid for creating content. Platforms like Facebook, Twitter, Reddit, Instagram, Tumblr, etc. are popular to a large degree because users of the platforms upload content that they didn’t create – the value of the platform is that users get to share things of interest with their friends.

We haven’t heard the end of these efforts and the parties are still looking for language that the various EU members can accept. If these laws eventually pass they will raise the same questions here because the policies adopted by the big web platforms will probably change to match the European laws.

Facebook as a Communications Alternative

Facebook MessengerThe way that people and businesses communicate is changing rapidly. I can use my own family as a good example of this. In tech terms I am old school and my preferred mode of communications is email, plus I talk to a lot of people each week on the phone or in person. I only send two or three business text messages out each week. I send this blog out by Twitter, but I rarely communicate with anybody using Twitter. I use social media mostly for friends and family.

But then I look at my teenage daughter who is very representative of her generation. She never emails, and I mean never. She will talk to somebody on the phone only if there is no alternative (meaning to me). She texts a ton – and not just with SMS or other texts on her phone, but also using various messenger services and social networks as well. She will only use Facebook to share things with a few of us oldsters. And she exchanges silly pictures and such with friends using several picture and video services.

There is almost no crossover between her generation and mine and her generation looks upon all the ways my generation communicates as old and obsolete. This certainly has to put a shiver up the spine of anybody in the business of supplying traditional communications. I saw a survey this week that said that 25% of people don’t use their cellphones to make phone calls – and it’s not too hard to figure out which generation that is.

I’ve been hearing it said for probably two decades that telephony is a commodity and it’s finally starting to come true. For example, Facebook is making a big push to convince small businesses to communicate with their customers through Messenger. They aren’t doing this because there is money to made in the communication, but rather in the local advertising that think will come along with businesses making them their primary communications tool.

Facebook is starting into this venture with huge potential because they claim to already have over 50 million small business pages on their social network. They recently gave businesses the ability to communicate with people directly on Messenger rather than forcing people to post public messages. They are also working on click-to-Messenger from ads so that a customer can communicate instantly with an advertiser. They are also considering allowing the option for ‘blast’ messaging where a business could send messages to many followers at the same time (for pay of course).

And all of this is being driven by wanting to lure more companies to advertise on Facebook and by the desire to keep users within the Facebook realm when they want to do ecommerce. The communications part of this is an afterthought. But it’s clear that Facebook’s vision of future communications doesn’t require a telephone number or an email address and that anybody inside Facebook can interact with others directly with Messenger.

They are not the only big web company that wants to do this. There are changes happening everywhere. There was a lot of talk last year about building free voice connections into a number of browsers. Twitter is lengthening the size of their messages to allow people to have longer and more meaningful communications as an alternative to email. Even LinkedIn is enabling businesses to send bulk messages to their contacts.

And every one of these trends is a direct assault on traditional communications. When the younger generations are in the workforce they are still going to want to communicate in these new ways instead of with emails or phone calls (and many already do).

I saw another survey recently that said that people become attached to the way that they learn to watch video. It said that kids who grew up mostly watching YouTube are not buying traditional cable TV and continue to prefer YouTube and alternate sources of video. And I think the same thing is true for general communications. If my daughter gets into the workplace and is forced to use email she will begrudgingly do so. But given an alternative she will communicate in the way that is most comfortable and productive to her – and that is a world without traditional telecom.

The Battle for Eyeballs

There is an interesting aspect of the web that happens behind the scene and that doesn’t get a lot of press: the tracking and maximizing of web views on social media sites like Facebook and Twitter. Large content providers like the Huffington Post, BuzzFeed, and the New York Times very closely monitor how many shares they get on the various sites. The reason that shares matter is that the more eyeballs they get to look at their pages, the more they make from advertising. It’s easy to forget that advertising drives the web, but to these companies advertising is the major, and in some cases the only source of revenue.

Following is a list from NewsWhip showing the 10 largest content providers, based on Facebook shares, for August, 2015. Some of these are familiar names, but some post content under various names that a Facebook reader would more likely recognize.

NewsWhipContent providers are currently in a bit of a panic because the largest social media sites are working very hard to keep eyeballs on their own pages. When somebody clicks on a web article on Facebook they are sent away from Facebook and they often don’t return. Social media sites know that keeping eyeballs on their site increases their own ad revenues.

Twitter recently launched Moments, a space for content that stays inside the Twitter platform. Twitter directly creates content for Moments and has also invited partners to write and create content inside the Twitter platform. Facebook has been doing similar things through its Trending Topics pages that lead you to content within Facebook. They are also looking at a more aggressive platform they are calling Notify. LinkedIn probably started the trend and has enlisted heavy hitters from various industries to write content directly inside their site.

It’s a tough time to be a content creator. They are already seeing a downward trend in revenue due to ad blockers. It will be that much harder to make money as a content provider if they have to also compete the social media sites directly for content. After all, the social media sites know a lot more about what each of us is interested in, and companies like Facebook can use that knowledge to entice us to view content that they think is of interest to us.

The content creators have a real concern. For example, the Huffington Post has lost about 2 million Facebook shares per month over the course of this year. The issue matters to web users, because it is the content creators that make the web worth visiting. I personally use Twitter as a way to find articles about various tech industries and I am not that much interested in personal tweets by the people I follow. I am sure that many other people use these platforms the same way – as a way to follow topics they are interested in. But whenever large sums of money are involved somebody is always going to be scheming to capture market share, and the tug of war for advertising eyeballs is in full force.

Can You Really Multitask?

jugglingThis blog is a bit off my normal beat, but I’ve read several articles lately about the effects of technology on our brains. I think the findings of these studies are things that you will find interesting.

I think most people will agree that we are busier today than we have ever been before. Not only do we lead hectic lives, but we have compounded our lives with connections through our smartphones and computers to coworkers, family and friends all throughout the day and night.

I meet people all of the time who say that they are good multitaskers and who say they that they are good at handling the new clutter in our modern personal and  work lives. There are days when I feel I am good at it and days when I definitely am not.

Researchers at MIT say that multitasking is an illusion. Earl Miller, a neuroscientist there says that our brains are not wired to multitask. What you think of as multitasking is really the brain doing only one thing at a time and switching quickly between tasks. He says there is a price to pay for doing this because what we call multitasking leads to the production of the stress hormone cortisol as well as adrenaline. Multitasking creates a dopamine feedback loop which rewards the brain for losing focus and searching for the next stimulation. The bottom line is that multitasking leads to less focus and makes us less efficient.

Miller says that multitasking is a diabolical illusion that makes us feel like we are getting things done, when instead we are just keeping the brain busy. When we multitask we don’t do any of the tasks as well as if we stopped and concentrated on them one at a time. And it’s addictive. Those of us old enough can remember back to a simpler time when we often made choices not to do things. If we were reading a book or watching a TV show we chose not to let ourselves get easily distracted. But since multitasking rewards the brain for getting distracted, we now routinely will break into everything we are doing to read an email, look to see who texted, see who commented on something we said on Facebook or Twitter.

I decided to test myself and I decided to watch a one-hour show on Netflix to see if I could watch it end-to-end without distraction. I was amazed at how poorly I did. Every few minutes I found myself wanting to go do something else. And a few times I almost automatically clicked on a different application on the computer. And I wanted to stop a lot more than I did and it was a real effort to stay focused on the show I was watching. I thought this would be easy, but apparently I am now addicted to multitasking. I wonder how many of you can do better?

One of the reasons we have gotten pulled into multitasking is a new expectation that we are always available. It used to be easy to drop out of sight by simply walking out of range of the telephone. People were not surprised to miss you when they called and leaving voice messages was a big deal. But today the expectation is that we have our smart phone with us and turned on at all times, and through that we can be called, texted, emailed and reached on demand.

Research shows that multitasking kills our concentration and is more detrimental to our short-term memory than smoking marijuana. Cannabinol, a chief ingredient of pot interferes directly with memory brain receptors and directly interferes with our ability to concentrate on several things at one. But research have shown that if you break off concentrating on a task to answer an email that your IQ temporarily drops ten points. And cumulative multitasking degrades your brain’s performance more than smoking pot.

Researchers at Stanford have shown that if you learn something new while multitasking that the information goes to the wrong part of the brain. For instance, if you read work emails while doing something else like watching TV that the information from the emails goes to the striatum, the place where we normally store skills and physical memories and not where we store ideas and data memory. If not interrupted, the same emails would be stored in the hippocampus, which is essentially our brain’s hard drive that is good at retrieving data when we need it.

Multitasking comes at a big cost. Asking the brain to constantly shift tasks burns up a lot of glucose in the brain which we need to stay focused. So multitasking can lead to feeling tired and disoriented after even a short time. I used to believe that deep thinking caused your brain to get tired, but staying on one task actually uses far less energy that constantly shifting from one task to another.

This makes me worry about what we are doing to our children who now multitask at an early age. Perhaps there is some hope since one of the new trends among many teenagers is a rebellion against technology, and that is probably a healthy thing. If the pressure to be always connected is hard on adults, one can only imagine the peer pressure it creates among teens. People of my age use email as our primary method of communication while teens almost exclusively use text. The biggest problem with texting, according to the researchers is that it demands hyper-immediacy and you are expected to return a response as soon as you get a text.

I have started my own little rebellion against multitasking. I am not checking emails more than a few times a day and I rarely check to see if somebody has texted me. After all, I need to save some time for Twitter!

One Hundred Blog Entries

This blog is an introspective look at the blogging experience. Last Friday I posted my 100th blog post. I have written one every work day and they have been posted every day except once when my wife just forgot to post it.

The process of writing a blog every day is a really good exercise for somebody like me. We have so many different clients at CCG and we get pulled into so many different business situations with different issues that I find that I know a little bit about almost everything in the telecom industry. Some things I know a whole lot about, but on many topics I feel I am a thousand miles wide and an inch deep, meaning I know the basics about a topic, but there is much more that I can learn.

So writing this blog has been a learning opportunity for me. I have read books, read thousands of web articles, scoured Wikipedia and talked to people who I consider to be experts. When I write about most of the topics I end up knowing more than when I started, and for a consultant that is not a bad thing.

Not all of my blog posts are factual and some are just my opinion. When I first started the blog I tried to avoid opinion pieces, but then I came to realize that I have strong opinions about some of the things going on in the industry and I decided to let my opinions out of the box. This has also been a learning process for me, because before I can write an opinion piece I still need to think about the topic and do research, and I have found myself modifying my opinion a few times during this process. Certainly the act of thinking deeply about any topic is a healthy mental exercise and I actually look forward to the writing and thinking time.

After I had written 20 blogs I had a fear that I was going to run out of topics. I look around the industry and I don’t see anybody else writing daily blogs, and perhaps I am nuts to try to do so. A lot of industry blogs have posted a dozen entries in the time where I have done 100. I still don’t know exactly what that means, because in daily life I am not overly loquacious, but I seem to not lack words when I write. There may come a day where I struggle to find topics, and if that happens I will slow down. But there is so much going on in this industry that I just don’t see that happening for a while.

I am also a bit surprised by where the blog has taken me. I have spent a lot of time thinking about and writing about the future of the industry. The industry is undergoing more changes right now at a faster pace than ever. Companies are changing, technology is changing and products are changing. Trying to figure out where this is all headed is an interesting exercise. I am sure I going to be wrong about a lot of my predictions, but right about others. Certainly there will be new inventions that will change the landscape in ways we can’t imagine today and that will trump any current predictions. As an example, a decade ago it would have been nearly impossible to predict the impact of social media and there will be the new equivalents to Facebook coming.

I find the Internet of Things to be the most interesting of change of all. The idea of filling our environment with little sensors and tiny computers to give us a different interface with our environment is fascinating and exciting. I have read science fiction books since I was a pre-teen and it is amazing to see us on the cusp of so many of the things predicted in that genre.

I have found myself writing about the cable industry a lot more than I expected, but that is where all of the action is happening. I don’t think anybody expects a future where households buy the huge bundle of channels in the same way they do today. There are too many market forces pushing on the industry to change. But I’m not sure anybody really knows where it will end up in a decade.

I thank my readers for dipping in from time to time to see what I have to say. My volume of readers had grown continually and just watching the blog tools is an interesting thing to do. I can see how many visitors come to my blog each day, and I know how many articles they read (but not who they are). One thing I know now for sure is that the telecom industry shuts down on Friday afternoons and very few people read the blog then.

This is a blog for telecom carriers and it is meeting all of the goals I originally established. It’s making me stay current. It’s helping me understand the issues in the industry. It’s letting me think about the future of the industry and then turning around and making that process relevant to my friends and clients. So, at least for now, I see the blog continuing, so stay tuned.

One Month Anniversary

I’ve been writing this blog for a month now and so far I have learned the following:

It takes a certain discipline. On many of the topics I am covering I could easily write a white paper, or at least a long dialogue. However, blogging forces you to keep things short. I have found that I will have to break some topics into a series of blogs if I want to cover them fully.

And the trick is in making something short is to not over-simplify it. I have already caught myself doing that. Some telecom topics are complex and can’t be covered adequately in three paragraphs.

So bear with me as I learn this new medium. It has been interesting to write this way and I hope the resulting blog posts are of value to my readers.

There are a lot of topics. When I got the idea of writing the blog my first fear was that I would quickly run out of topics. On the first day I sat and thought hard and made a list of forty topics. It struck me that day that if I wrote those forty blogs that I would be done with this blog after two months.

Luckily, it seems that every time I write something or read something on the Internet that I think of five more related topics. I also now seeing a blog post every time I read a telecom news story.  CCG Consulting as a firm is involved in a huge array of telecom services. This gives me a really wide spectrum of relevant ideas to write about. I don’t know that I can crank out meaningful posts forever, but I think I can do it for years. We shall see.

Some topics are boring as hell. So far I have not found any good way to spice up a blog post about an FCC ruling or about the current nature of access disputes. But sometimes these are the topics that small LECS and CLECs most need to know about. So please just take my most boring blog posts like medicine and just remember they are good for you!