Like Braden, I also filed comments on the FCC's inquiry--written by CDT--about what, if anything, the FCC should say about online privacy in the National Broadband Plan Congress assigned the agency to write in the (so-called) "Recovery Act" last year. My comments are available here and are embedded below. Over 20 parties filed comments, available here. My argument in brief is as follows:

• To the extent consumer anxiety about online privacy is, as many claim, actually discouraging some Americans from fully utilizing broadband, the FCC could indeed recommend that Congress take action on online privacy--even though the FCC has no jurisdiction to regulate online privacy itself (beyond the limited CPNI rules it has already imposed on the communications services it licenses).
• But when Congress charged the FCC with drafting a plan for promoting broadband adoption, it set specific goals: The FCC may only recommend that Congress enact policies the agency concludes on the basis of real data will, on net, help achieve "affordability" and "maximum utilization" of broadband.
• The quality and quantity of online services depends on the ability of service providers to collect and use data about web browsing habits to analyze site use, personalize content, tailor advertising, and measure its effectiveness.
• So imposing additional regulations on the private sector comes with real costs to users and it's far from clear that such regulations would, on the whole, promote broadband adoption.
• The Commission simply doesn't have the data to evaluate this trade-off,, nor the time to collect it (as the FTC is trying to do) since the National Broadband Plan is due to Congress in a matter of weeks.
• But no such trade-offs exist with regards to government access to consumer data, which creates far more demonstrable and serious consumer harms. So the Commission should limit its legislative recommendations on privacy to endorsing enhanced limitations on government access, such as CDT has proposed.
• The Commission should be particularly wary of opinion polls as evidence of consumer expectations because they cannot tell us about the trade-offs inherent in the real world.

As we approach Groundhog Day, 2010, we are faced with calls for the Federal Communications Commission to re-classify broadband Internet service from an "information service" to a "telecommunications service" under the Communications Act so that it may be more comprehensively regulated by the agency. Public Knowledge has formally requested that the FCC address the question of reclassification of broadband service as a Title II common carrier service as part of its National Broadband Plan, now due to be delivered to Congress by March 17, 2010. A stated reason for this request is to end regulatory uncertainty over the breadth and depth of the FCC's "ancillary jurisdiction" to regulate broadband Internet services. Yet acceding to such a request would take us on a time loop where we are doomed to repeat the regulatory exercises of the recent past with little regard to the lessons learned along the way.

The situation brings to mind the 1993 film, "Groundhog Day," in which an egotistical and sardonic TV meteorologist, Phil Connors must travel to Punxsutawney, Pennsylvania for the hated annual assignment of reporting on the emergence of the groundhog "Phil" from winter hibernation with his weather report. A blizzard, which Phil reported would miss the area, soon strands our meteorologist in Punxsutawney. By virtue of some cosmic loop, Phil discovers that every time he awakens it is February 2nd, Groundhog Day and he must once again repeat the same day. No one but the erstwhile Phil, however, remembers the actions of the day before. Armed with the knowledge that there will be no long term consequences, Phil begins to misbehave. Eventually, he decides to use what he learns each day to improve himself and the lives of those around him. The phrase "Groundhog Day" has since passed into the popular vernacular as a reference to an unpleasant situation that continually repeats, or seems to.

Are we doomed to continually replay the debate over the imposition of common carrier requirements on broadband ISPs, without learning from our past? Or will we, like Phil the meteorologist, learn from regulatory history, and remove, rather than impose, regulatory barriers to investment and innovation? I hope the answer to this question does not depend on whether the sky over Washington is cloudy or sunny the day the D.C. Circuit Court of Appeals issues its ruling in the appeal of the FCC's Comcast P2P Order. It now appears that nearly everyone, including even the most ardent proponents of the agency's ancillary jurisdiction, understands that the expansive jurisdictional theory that the FCC used to justify its 2008 action against Comcast met with a very frosty reception by the panel hearing oral argument in the case. Talk of a jurisdictional "Plan B" was quick to emerge in the press, to be followed in short order by the request for the FCC to take up the reclassification of broadband services as part of its National Broadband Plan.

At today FTC's "Exploring Privacy" roundtable event at Berkeley Law School, were heard a lunchtime address from Daniel J. Weitzner, Associate Administrator for Policy, National Telecommunications and Information Administration (NTIA) at the Department of Commerce. Down below is a brief summary of his remarks. (Berin Szoka and have been live-tweeting the event at @AdamThierer and @BerinSzoka).

• Obama Administration is looking at nexus between privacy & innovation


• Success of Internet has depended upon creative use of information


• Predictability and certainty is imp for both consumers and companies on this front


• Believes we CAN have both innovation and privacy protection; but there will be some tensions


• Challenge of the 3^rd decade of Internet policymaking = to get together set of policies to bring security to Net while preserving freedom


• Does domestic & global patchwork of #privacy policies hurt or help innovation?


• Need to take a hard look at the traditional notice & choice framework


• Rules for COLLECTION or USE of data is key question


• Concepts of "accountability" ... to what or whom?


• a Notice of Inquiry coming from NTIA about privacy to help shape privacy policy for Obama Admin

I'm attending the FTC's 2nd "Exploring Privacy" roundtable event, which is taking place at the University of California-Berkeley School of Law. Here's the agenda. (I'll be live Tweeting @AdamThierer). FTC Commissioner Pamela Jones Harbour & FTC Bureau of Consumer Protection Director David Vladeck kicked things off. Here's a quick summary of their remarks:

• Data collection has vast opportunities but drawbacks also


• "non-price dimensions" of privacy important


• Talking about recent Facebook privacy changes


• Privacy is not "over" as McNealy once said; recent public outcry about Facebook changes make that clear


• "delicate balance" between data collection and consumer control


• Concerned about privacy in the mobile environment


• "Apple could do more to require baseline level of privacy disclosures"; other could set such defaults too


• Similar fears about privacy in the cloud; difficult for consumers to define privacy expectation in the cloud; fear of lock-in concerns


• Wants more data portability


• Concerned that anonymization doesn't work good enough; Perhaps our faith in current technologies is misplaced


• Must address the question of privacy by design sooner rather than later

Berin Szoka and I will be in Berkeley, CA tomorrow attending the FTC's 2nd "Exploring Privacy" roundtable event. The event will take place at the University of California-Berkeley School of Law. Here's the agenda and speaker bios. The event will be webcast for those who cannot make it. But for those of you who going, make sure to come say hi to Berin and me. We were thinking about trying to get a group together afterward to grab a beer somewhere nearby.

Incidentally, Berin and I testified at the FTC's first Exploring Privacy workshop, which took place on December 7th. You can find webcasts of the panels here, and here are Berin's comments and my summary of what we had to say that day.

As always, this year's "State of the Net" conference features a variety of breakout sessions from which to choose and, sadly, until I figure out a way to clone myself, I can't cover them all. So, I decided to sit in on the panel about "Antitrust in the Internet Era," since it's a subject I find of great interest. It featured the following lineup:

• David Balto, Center for American Progress (moderator)


• Brian Bieron, Senior Director of Federal Affairs, eBay


• Joseph Farrell, Director of the Bureau of Economics, Federal Trade Commission


• Roberta Katz, U.S. Department of Justice


• Catherine Sandoval, Santa Clara University School of Law

At the "State of the Net" conference this morning, Alan Murray of The Wall Street Journal interviewed Brian Roberts, Chairman & CEO of Comcast. Here are some highlights. [You can follow all of my live Tweeting at: @AdamThierer]

• Stresses synergies from combination of Comcast cable channels & NBC broadcast properties (ex: Golf Channel & NBC Sports)


• Program access rules "should give fair amount of comfort" to critics who fear that content will be withheld


• "Businesses have to transform & reinvent themselves all the time" NBC part of that transformation for Comcast


• Internet is more friend than foe; broadband has transformed the business for the better


• Businesses grappling w/ ways to extend traditional services to consumers in new ways & still make $$$ (ex: TV Everywhere)

I'm attending day 2 of the 2010 "State of the Net" conference today. CDT founder Jerry Berman kicked off the show and, echoing Ithiel de sola Pool, said that the Internet is a "technology of freedom" but that it needs stewardship and protection to thrive. He specifically mentioned how First Amendment protections were vital.

Jerry then introduced Rep. Rick Boucher of the House Commerce Committee and the Co-chair of the Congressional Internet Caucus. Here are some of the highlights:

• "We have an active year ahead of us" in Congress
• Priority #1: Spectrum inventory legislation will help ensure more efficient use; will hopefully help America meet growing demand for wireless service
• Priority #2: Comprehensive reform of universal service fund; "current system is simply unsustainable"; "change must come and come soon"; people on both sides of the debate have now come to the table and agreed to work together;
• Heart of universal service reform = Competitive bidding; cap on high-cost fund; other steps to ensure efficiency; expanding contribution base
• Key part of reform is move to expand fund to cover broadband service instead of just basic telephony; requirement that carriers use it for broadband
• Priority #3: Satellite Home Viewer Act renewal
• Priority #4: Privacy & online advertising bill... says he doesn't want to derail targeted advertising but give people "greater control"; discussion draft coming soon
• Priority #5: cell phone bill w/ national consumer protection standards
• "an ambitious agenda" but he hopes it can all get done
• Hearing coming about FCC's national broadband plan once it is out
• Feb. 4^th oversight hearing about the Comcast-NBC Universal deal (I'm testifying there!)

OK, time for a quick rant. What is all this confusion and consternation over early termination fees (ETFs) for high-end smartphones? I mean, seriously, how hard is this process to understand? The FCC has worked itself into a lather over this and is bombarding wireless operators and Google with hate mail letters of inquiry harassing asking them about their ETF policies. I just don't get it. Let's review some simple realities:

• Smartphones -- especially high-end devices like the iPhone, the Droid, and the Nexus One -- are basically mobile mini computers.


• Mini mobile computers do not grow on trees; someone has to make them and sell them at a profit or else no one would offer them to begin with.


• But the people who make and sell these devices (and wireless service for these devices) want to ensure rapid, widespread distribution to win over customers and recoup their costs.


• So, they offer a classic business inducement -- an upfront subsidy for the product in exchange for monthly payments to amortize the upfront "loan" they have given the customer;


• AND THEN THEY FORM A CONTRACT WITH THE BUYER TO MAKE THE DEAL WORK. And that contract obligates both sides to live up to their end of the deal.


• Hey... did I mention they need to form a contract to make the deal worth it? OK, good, wanted to make sure I got that point across.


• Then they give you a nice shiny new mobile mini-computer that for some reason we Americans still insist on calling a cell phone.


• Then you start paying off the "loan" they've given you for that device over the span of the service contract. This is called "prorating."


• But, if you default on that loan by breaking your contract, you'll be hit with a penalty -- an early termination fee -- since it would leave the carrier without a way to recoup the cost of that shiny new mobile mini-computer that they handed you on the cheap when you just absolutely had to have the hot new toy in town.

Panel #2 at this year's "State of the Net" pre-conference featured a lively debate about net neutrality and investment. It included a debate between Hal Singer of Empiris LLC and Michael Livermore of the New York University Law School. It also featured the comments of Markham Erickson of the Open Internet Coalition and Christopher Yoo of the University of Pennsylvania Law School. The panel was ably moderated by Susan Crawford. Here are some highlights of what proved to be a fun and feisty debate, which began with the comments of Hal Singer:

Hal Singer, Empiris LLC

• FCC wants to constrain pricing flexibility for networks


• Not clear we need price regulation for service delivery in absence of clear market power


• FCC offers novel "collective action" theory to justify regulation, but doesn't make sense and doesn't apply here


• Investment at edge of network will not decline in absence of Net neutrality regulation


• Outlawing priority delivery would discourage investment in new networks AND applications


• "Net neutrality would harm the very folks it seeks to protect"; end users will see price hikes


• Investment at core is crucial