Marvin Ammori

My last post was about Obama’s cybersecurity speech and report last Friday.

I wanted to follow up on Obama’s commitment to network neutrality, in that speech.  That quote again (and I won’t get sick of quoting the President’s support for net neutrality): “I remain firmly committed to net neutrality so we can keep the Internet as it should be — open and free.”

This is in a speech about cyberwarfare and cybersecurity, a speech that also included these lines:

And this is also a matter of public safety and national security.  We count on computer networks to deliver our oil and gas, our power and our water.  …

Our technological advantage is a key to America’s military dominance.

How can security be compatible with network neutrality?

Easily.  There is nothing in network neutrality suggesting that security must be sacrificed.  Security is a red herring, introduced those few companies (AT&T, Comcast, etc.) opposing network neutrality.  They have other red herrings.  In fact, an FCC hearing at Stanford last year featured (and dismissed) red herrings–copyright filtering, child safety–none of which are incompatible with network neutrality.

At root, carriers are saying that the Internet can’t provide… security … certainty … that the carriers themselves can uniquely provide such security.  I believe the Internet–through applications on the Internet, created by innovative people using the Internet–can meet these challenges.  We needn’t turn to the carriers–carriers whose track record of innovation pales to that of the open Internet’s competitive landscape–to provide key security.  We needn’t deputize carriers to be private enforcers.

At any rate, as a professor who teaches cyberwarfare law (teaching, in fact, 40 minutes from Strategic Command) and a longtime advocate for network neutrality, I was happy to see our President not get distracted by a red herring when so much is at stake in Internet policy, for our security and for our democracy.

President Obama continues to impress me (and everyone). He gave a speech last Friday and issued a report on securing our nation’s “cyber infrastructure” (from the title the speech) or, more broadly, our “communications infrastructure” (from the title of the report).  In his speech, he praised network neutrality, saying : “I remain firmly committed to net neutrality so we can keep the Internet as it should be — open and free.”

I was proud to see that Obama (a) gets the importance of the Internet to all we do, and (b) understands the importance of preserving our rights while preserving our security–no false dichotomy.

This post is about (a).

(a) The Internet is part of our basic infrastructure, like electricity and water.  I wish I could say anything as well as the President can.  I’ve been working for years on Internet policy, trying to capture why it’s so important.  Among media activists, we’ll often say: whatever your first issue is (environment, health care, war, poverty), your second issue should be media, because media shapes how people understand those problems and the possible solutions.  In fact, a former FCC Commissioner, beloved of media reformers, has a book on media called “Your second priority.” Essentially, democracy should always be your second priority, whether it’s media, campaign finance, etc.

But Obama was able to explain how the Internet is also a “second priority” to most everything, from security to economics to speech to talking with your children.

So what understands the importance of the Internet to everything we do. From the speech.

America’s digital infrastructure — the backbone that underpins a prosperous economy and a strong military and an open and efficient government.  …

This world — cyberspace — is a world that we depend on every single day.  It’s our hardware and our software, our desktops and laptops and cell phones and Blackberries that have become woven into every aspect of our lives.It’s the broadband networks beneath us and the wireless signals around us, the local networks in our schools and hospitals and businesses, and the massive grids that power our nation.  It’s the classified military and intelligence networks that keep us safe, and the World Wide Web that has made us more interconnected than at any time in human history.

Obame gets that the Internet is fundamental.  It is fundamental to our lives.  And we can’t let the short-term profit motives of a handful of companies (Comcast, AT&T, Cox, Time Warner Cable, Verizon, etc.).  Internet is infrastructure.  Like roads.  LIke electricity.  We should how to use it, in our lives, rather than having our options constrained by these few carriers.  And we should ensure it’s available to all Americans, as, again, basic infrastructure.

The Wall St. Journal’s fabulous Amy Schatz reports that the FCC line-up seems set.

I know it’s not the Supreme Court. I know it’s not Kobe or Dwight Howard.

But for those of us practicing communications law–or interested in the future of the Internet–the FCC line-up may matter as much as the Supreme Court’s.  And the intra-team rivalries sometimes compare to Kobe and Shaq.

The FCC is the government agency that regulates communications–TV, phone, and data over satellite, broadcast, cable, and phone lines.  Oh, and the FCC also asserts authority over providers of Internet access.  So the FCC matters–for the future of the Internet, the future of media, the future of personal and political communications.  Essentially, though the FCC might be best-known for investigating Janet Jacksons’ wardrobe malfunction, this agency helps determine the shape of American discourse and democracy.

The President can appoint three from his own party, so the new line-up includes three Democrats and two Republicans, an obvious change from the Bush years.

Here’s our line-up, according to Schatz:

Julius Genachowski (D).  The Chairman.  A classmate of Pres. Obama’s at Harvard Law School, then a Supreme Court clerk, then an advisor to President Clinton’s first FCC Chairman, then a tech executive, then a venture capitalist.  He was Obama’s top tech advisor during the campaign and gets credit for Obama’s excellent tech innovation agenda.  Public interest groups have praised this choice.

Michael Copps (D).  The Veteran Warrior.  Copps has been the hero of the media reform movement and the open Internet movement for years.  He speaks at Free Press’s major conferences every year, with uplifting speeches and charming wit, to applause and adoration.  He became a hero through dissents and through negotiating victories while in the minority.  He sees a window of opportunity while in the majority.

Mignon Clyburn (D).  The State Commissioner.  A state public utilities commissioner, Clyburn is not well-known in DC, but is expected to support the President’s agenda.

Robert McDowell (R).  The Survivor.  Schatz writes: “It wasn’t clear he would be renominated because he had drawn some opposition from AT&T Inc.” From my point of view, Commissioner McDowell has had his good votes–like on white spaces–and his bad votes–like on the Comcast network neutrality order and  cable ownership limits.  Smart guy, to say the least.

Meredith Baker (R). The NTIA head. I don’t know her personally.

These five have a lot of work ahead of them–such as building a national broadband plan on the basis of this piercing analysis.

With the line-up set, I hope we can get some confirmations soon.

Recently, the Philly papers reported that “Comcast’s lobbying budget soars.”

I’m not sure how to interpret this.  I’d like to think that our victory in the network neutrality case convinced Comcast execs they needed to make even bigger investments in influencing government, that taking on  a few folks at public interest organizations the American public takes real dollars.

But it’s more likely that standard “public choice theory” is at play.

Public choice theory predicts that big companies have more incentive than the broad public to lobby and influence government.  The big companies get huge benefits from government lobbying, while the costs to society are spread out among millions, each with a small stake. So Comcast makes 1 million; 1 million people lose a dollar.  Comcast has the incentive to lobby.  Each person will just forget the dollar, or complain, but isn’t going to hire a lobbyist.

But why is Comcast spending more now?  Probably not our net neutrality victory.  Maybe because Comcast fear more policy losses.  The Obama tech agenda is not friendly to Comcast–it’s friendly to the public.

But here’s another idea, suggested by the article itself.  When smaller companies merge into bigger companies, the bigger companies have more incentive to lobby.  Let’s leave aside that more laws potentially affect bigger companies (like antitrust limits), which would itself prompt more lobbying on more issues.  Bigger companies simply get a larger share of the benefits accruing to their entire industry from lobbying.  When Congress changes a cable law, each cable company gets a benefit.  After mergers, Comcast gets a bigger and bigger share of the benefit, so it has more incentive to lobby for the benefit.  Each member of the public still gets the same small cost, so the public becomes even more outgunned.  As a result, as an industry gets more concentrated–like when the FCC rubber stamps merger after merger for a decade–the remaining dominant players have even more incentive to invest in lobbying, getting a larger and larger share of the lobbying goodies going to the industry.  A friend of mine wrote an interesting article on this point, though he was arguing for privatization of government monopolies, rather than opposing private concentration.

The upshot is: we’ve already known concentrated industries are bad economics, that they can reduce competition, raise consumer prices, decrease supply and variety, and inhibit innovation.  But we shouldn’t overlook how concentration may affect political power, undermining the representativeness of our democracy, concentrating not just economic power but political power in the hands of a few.  That is, economic concentration may lead to industries investing more and more in lobbying, further skewing the balance between special interests and the general public interest.

The solution to this is bringing sexy antitrust back.  It’s enforcing the FCC’s public interest standard.

And, it’s working to organize with the public, in effect organizing and metaphysically merging their interests.  The only way to win in Washington, as industries invest more in influence-peddling, is to have more of the public even more committed to solving the problems that face us, from national security to network neutrality.

AT&T might have interfered with the American Idol vote.  I feel like there’s a metaphor for network neutrality in this.   AT&T tampering with electoral democracy?  Abusing its control of the telecom network to influence elections?

The metaphor’s less forthcoming than when AT&T’s Blue Room bleeped Pearl Jam for criticizing a AT&T’s biggest political patron–George W. Bush.

The last two weeks, I’ve had the good fortune of speaking with, hearing, or learning from a host of good, very sharp people.  If I had been less busy, I probably would have shared their wisdom in detailed posts every day, and interviewed them for the blog.  But, alas, moving takes time too.  So I just wanted to post about some discussions I had in Nebraska.

I spoke with an activist about open government issues, a state regulator about telecom policy, a former Presidential adviser about Bush’s torture policy, and heard a Nobel economist explain the financial crisis.  And this was all before even getting to DC.

Continue reading →

So after a lovely school year teaching International Telecom Law, US Telecom Law, and Cyberlaw as a law professor in Nebraska, I’m back in DC for the summer.  One benefit of academics: professors like me have the summer off to write and think big thoughts.

There are probably theories on how best to think big thoughts. One way to to go to the library.  This is the ivory tower model.  I could have stayed in quiet Nebraska and researched and written, largely alone.

But there’s a second model, which is to be in the mix.  For me, being in DC is being in the mix.  Tech policy is made here.  I can bounce big and little thoughts off lots of brilliant people working on tech and media issues.  I can also advise, and learn from, folks making tech policy at the national scale.

Plus, I was an activist advocate in DC once.

Continue reading →

So who is Mignon Clyburn and does she support Obama’s technology agenda?

Mignon Clyburn has been nominated to an open seat on the FCC. She would be the third Democrat on the FCC, along with Michael Copps, who serves now, and Julius Genachowski, who also awaits confirmation.  The FCC is central to Obama’s tech innovation agenda–which Obama announced during the primary campaign (you can find a later version here) and which consumer groups loved. The FCC is also central to Obama’s vision of the nation innovating itself out of this recession/depression.

Continue reading →

After years of blogging a little here and and being blogged about there, and spending more time on law review articles than I’d care to admit, I’ve found a place to call home: ammori.org.