Bridge Span 18-3: Who Should Be Driving Our Innovation Future?

For twenty years, the federal government has been devising a plan for talking cars, promising a reduction in injuries and deaths. For twenty years, the government jealously guarded a block of spectrum to use as it pursued its ill-advised industrial policy designed to compete with private industry. For twenty years, nothing happened. But life outside of this government Xanadu went on.

In 1999, the FCC set aside the 5.9 GHz band of spectrum for “Dedicated Short Range Communications (DSRC)” and “Intelligent Transportation Systems (ITS),” a vehicle to vehicle communications system. Five years later the Commission established licensing and service rules to govern the spectrum slice. Despite every advantage being provided nothing resulted over time, even though more than $1 billion in taxpayer money was wasted. That block of spectrum cordoned off for this government adventure has become increasingly valuable over the decades. Valuable in terms of money certainly, but more importantly the band had become valuable in terms of the potential for greater innovation.

For years, communications and tech companies have been seeking permission to use the 5.9 GHz band for additional wireless bandwidth, recognizing that this part of the spectrum is what will help consumers get to gigabit wi-fi. The band is very well suited to serving taxpayers directly, by providing them a means of receiving faster mobile broadband now, providing greater speeds for the last 100 feet. The fact is that we are facing various challenges in spectrum, most prominently that the spectrum we have allocated, a raw material for innovation, is getting more crowded. Consumer demand for more and more broadband continues to grow rapidly as the importance of wireless services to our economy increases. Maximizing resources only makes sense, particularly when it benefits taxpayers and the economy.

The goal must be the maximization of spectrum use – to drive innovation and the economic benefits that follow. That is, the rules governing this band should be altered so that it can be used simultaneously and more effectively by more entities. Allowing those who are enamored with, and invested in, the government’s vehicle to vehicle communications approach to try it in the marketplace without government playing favorites and competing against those who have other valuable use for spectrum should be encouraged. But, the only way that the goal will be achieved is by the FCC again acting, acting in the best interest of innovation and the public.

The Commission should act quickly to reallocate this precious spectrum resource to a productive use, to designate more unlicensed spectrum so that wi-fi can continue to meet the huge demand of consumers. Twenty years is more than long enough. Let others use the spectrum for additional innovations. Such single allocations are a vestige of old bad government, government that dictated industries and outcomes. The time has come for a new approach, to innovate.

Bridge Span 18-2: SESTA Senselessness

Yesterday the Senate voted to approve legislation that will likely become a marker of a turning point for the internet ecosystem. The legislation, now on its way to the President’s desk, is known as SESTA (Stop Enabling Sex Traffickers Act of 2017) and allows for politicians to claim that they somehow helped stop sex trafficking when a closer look shows they have accomplished nothing except harm to the very functioning of the internet and the freedoms we have all enjoyed.

To say the very least, reducing and trying to eliminate sex trafficking is the right thing to do. Survivors, law enforcement officials and victim’s advocates all share horrendous stories that demonstrate the depravities that one human is willing to visit on another. The goal has never been wrong. The way the goal has been attempted wrong. That politics have governed the outcome, rather than thoughtful and deliberate public policy, is wrong.

The new law functions by tearing apart Section 230 of the Communications Act, which protects internet companies from lawsuits over user-generated content. So, what does section 230 really do? Imagine you open monthly flea market in your hometown and a person rents a booth from you. Rather than selling baseball cards as they told you and registered to do, they are selling illegal opioids without your knowledge, intentionally acting to escape your notice. You should be held liable? Hardly. Should FedEx be held liable if packages of cocaine are shipped via their trucks without their knowledge or consent? No.

Section 230 made sure that internet services are not responsible for the bad deeds and words of others said on their platform but without their involvement. Be a bully and you pay the price, not the web service. That sort of personal accountability used to be a value the GOP embraced.

Here is what America is really getting:
• SESTA was opposed by the Department of Justice and the House Judiciary Committee stating that the law will not help prosecutors and will actually complicate future investigations, undercutting its supposed value.
• To that point, an attempt to make the law workable by providing $20 million to fund criminal prosecution of websites that facilitate trafficking was rebuffed by the supporters.
• Worse, the Department of Justice has also warned that the legislation is unconstitutional, meaning that time and taxpayer money will be invested in trying to defend the indefensible.
• The Wall Street Journal has made clear that the law will be a bonanza for trial lawyers and legally adventuresome state’s attorneys general by making it easier to sue rich, and these days politically unpopular, web platform companies.
• The law actually discourages legitimate websites from keeping an eye on user content to protect against any form of abuse, as the law makes clear that monitoring for harmful content no longer protects a company and in fact exposes it to greater risk. In the end, the online world will become worse than the supporters of this law claim it is now.
• Or the flip side, stricter monitoring at the behest of the federal government may ensue and web sites might censor speech on them out of fear of liability. Such monitoring will only lead to marginalized voices being eliminated, and for all voices to be further restricted by government. Are we really in favor of that or do we prefer the freedom of speech free of persistent government oversight?
• The law erects a new barrier to entry perfectly suited for keeping out upstarts and likely being a heavier regulatory burden than small companies can bear. Large companies will do well because they can afford the extra overhead. Congress has created this barrier that will encourage and protect monopolies from competition, and later the same Congress will attack them for being monopolies looking to impose heavy handed regulation.

Far from being special protection for online operators, or an “internet industrial policy” as some have asserted, the notion of intermediary liability and its bounds stretch well back in jurisprudence history long before the advent of the internet. In fact, that history was the basis for Congressional thinking and drafting when section 230 was created. The same philosophies have been applied to everything from delivery companies to flea markets. Exposing online intermediaries to greater liability than intermediaries in the analog world reveals commentator’s and Congress’ bias away from rule of law in favor of rule of sophistry. The decision was nothing but mere politics. Internet companies failed to play the political game correctly and now Congress, and many policy commentators, are making sure they pay. The goal has always been about subjecting web platforms to greater liability, and truthfully, these days it is great politics. The swamp will have its revenge.

Ignorance in this decision abounds. One supporter of the proposed law is Mary Mazzio, director of a documentary film about online sex trafficking, who said that those who opposed SESTA are “clinging to a 1996 law” while dealing with a “21st century problem.” That is much like those who value speech free of government interference, free market and liberty in general clinging to that old 1789 law, the U.S. Constitution.

Bridge Span 18-1: One Vote That is One Big Step for Innovation

Tomorrow, the power of one vote could become very apparent. One vote could keep $1.56 billion in the pockets of taxpayers. One vote could unleash $275 billion in much needed infrastructure investment, creating 17,000 jobs. One vote? A new tax bill? An infrastructure plan? This is a vote by the FCC to modernize the federal review process for the country’s next generation of telecommunications – 5G.

The FCC will vote tomorrow on a proposal that would minimize the environmental and historic reviews for “small cell” sites under the National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA). This proposed change acknowledges the reality that as opposed to the large antennas often seen dotting the countryside, these cells truly are small, around the size of a pizza box. Thousands and thousands of them will be needed in each city. The different size alone calls for smart thinking of reviews not slavish devotion to a regulatory scheme designed for completely different technology. As the backbone of 5G, slowing down deployment for something as small and ubiquitous as these cells would be wasteful and deny the promise of tomorrow’s network. Faster reviews allows for faster and less costly deployment of the cells.

FCC Commissioner Carr believes that this simple move will reduce deployment time by half and regulatory costs for small cell sites by as much as 80 percent. A report by Accenture released last week confirms that and more. This infrastructure reform could lead to massive investment in 5G and position the US to win the global race to 5G.

The report indicates that:
• The environmental and historic reviews cost nearly $10,000 per small cell, consuming 29 percent of current small cell deployment costs.
• The private sector will invest approximately $275 billion to upgrade America’s wireless service to 5G, particularly if the cost and conditions are right.
• The FCC order would save Americans $1.56 billion in just the next nine years, from 2018-2026.
• The FCC order’s cost savings alone would result in the creation of more than 17,000 jobs and build in excess of 57,000 small cells.

5g is not just a single system but rather is a system of systems that will work with previous technologies, and that will also require new infrastructure, including the small antennas, as well as new investments in fiber, cell towers and base stations. 5G will be a mash up of existing and new technologies including wi-fi and new bandwidths, including improvements in both wireless and necessarily wired connections to complete the communications loop. This ubiquity of high speeds, a hundred times faster than 4G, will enable more of everything valued in broadband and open the world to promised technological advancements such as surgery, tactile real-time feedback for robotics and self-driving vehicles. With so much to be coordinated, and demand ever increasing, artificial slow-downs due to government reviews that no longer fit the facts should not be tolerated.

The bottom line is that this one vote would lead to massive amounts of capital being freed up to spur investment, the enabling of more innovation, more broadband and leaving more money in the pockets of Americans. But such a move is not easy as large investments in infrastructure are needed and so eliminating unfit regulation is a critical, and smart, move. In this way, the FCC is pursuing infrastructure reform, moving now to spur real infrastructure spending on the infrastructure of today, and tomorrow.