The following entry is the companion piece to my earlier blog post in which I provide an overview of the FCC's proposed broadband plan:

FCC’s Regulatory Authority Under the Telecommunications Act

Before delving into the Comcast opinion, it is important to discuss the historical development of the FCC’s regulatory authority (or lack thereof) over Internet communications in general. Let’s begin with the Communications Act of 1934. This charter legislation established the FCC and provided the regulatory framework under which the agency operated for much of the twentieth Century, and to a certain extent, continues to operate today. While the act was adopted “for the purpose of regulating interstate and foreign commerce in communication by wire,” there was no Internet in 1934 and Congress therefore did not specifically address the computer-based inter-web we use today. How, therefore, to classify Internet communications for purposes of exercising direct authority under the Act? Are ISPs subject to Title II common carrier regulation? The FCC has spent the last four decades identifying the boundaries of its direct authority and whether such authority extends to Internet communications.

According to justice Clarence Thomas, writing for the majority in Brand X (infra), “the [1934] Act, as amended by the Telecommunications Act of 1996, defines two categories of regulated entities, relevant [for purposes of this discussion]: telecommunications carriers and information-service providers. The Act regulates telecommunications carriers, but not [ISPs], as common carriers … ISPs, by contrast, are not subject to mandatory common carrier regulation under Title II, though the [FCC] has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction.” (EN 1) This distinction reflects the historic battle between ISPs and the incumbent telephone companies over whether to subject ISPs to the same substantive regulatory obligations required of the Telcos because they both use the same infrastructure to reach consumers. The agency has consistently sided with the ISPs, concluding time and again that Internet communications fall outside the agency’s direct regulatory authority “set forth in Titles II (common carriers), III (radio licensees) and VI (cable and similar video programming distribution services).” (EN 2)

The FCC first broached the subject in 1966 while conducting the initial computer inquiries. The Computer Inquiries (Computer I-III (EN 3)) were a series of agency adjudications which spanned four decades and reflected an evolving effort to facilitate competition in the emerging data market. Computer I concerned the recent ability to transmit data over traditional phone networks. The agency ultimately rejected AT+T’s claim that these data transmissions were the equivalent to voice “communications” for purposes of the Communications Act, refusing to extend Title II jurisdiction. The rationale behind this decision was a desire to protect and develop the young data market: the agency recognized a potential goldmine in this new electronic communication. The agency has largely taken a hands-off approach moving forward, seeking to encourage competition in the data market by removing regulatory barriers and by refusing to recognize data transmission as a regulable form of communication under the framework of the Communications Act. This principal applies even when the data is used to augment regulated basic phone service.

The bottom line is that ISPs who employ DSL are not subject to common carrier regulation despite employing the same wires used to transmit regulable telephone signals. Similarly, cable providers who employ broadband are not subject to the same interconnectivity requirements (EN 4) that burden incumbent telcos, as Title II regulation applies exclusively to Telcos in their role as “basic” telephone service providers. The court in Brand X Internet Services upheld an FCC order “conclud[ing] that cable companies that sell broadband Internet service do not provide ‘telecommunications service[e]’ as the Communications Act defines that term, and hence are exempt from…regulation under Title II.” (EN 5) Nor does, the FCC’s common carrier authority extend to “information services” offered in conjunction with regulated common carriers services. Thus, AT&T does not qualify as a common carrier while offering information services. As Justice Thomas noted above, current agency and judicial statutory construction requires that the FCC rely on its ancillary jurisdiction to get at Broadband communications.

“Title I ‘ancillary jurisdiction’ is an FCC-created and judicially-sanctioned implied authority, to do that which is necessary to carry out the specific regulatory obligations; it is derivative, not generative, and it must be exercised in furtherance of the Commission's regulatory responsibilities contained in other titles of the Act.” (EN 6) The parameters of this authority are set forth in section 4(i) of the Communications Act of 1934. “Section 4(i) … authorizes the Commission to ‘perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.’” (EN 7) However, “the Commission may exercise this “ancillary” authority only if it demonstrates that its action … is ‘reasonably ancillary to the … effective performance of its statutorily mandated responsibilities.’” (EN 8) Thus, “‘ancillary jurisdiction" [must] be necessary to further [the agency’s] regulation of activities over which it DOES have express statutory authority.” (EN 9) This brings us to the issue at the heart of Comcast: whether the FCC’s attempt to regulate Comcast’s network management is reasonably ancillary to some statutorily-based duty.

Comcast v. FCC: Does Title I Ancillary Jurisdiction Apply?

Background: On August 1st, 2008, the FCC issued a declaratory ruling (referred to herein as the “Order”) determining that Comcast’s management policy with respect to the use of peer-to-peer Internet protocol (eg, bit torrents) by end-users was unreasonable. Specifically, the agency took issue with how Comcast used “RST packets” (EN 10) to disrupt the transmission of bit torrent files. Bit torrent technology is an increasingly popular means for distributing information at high speeds and can be used for both legitimate and illicit purposes:

“BitTorrent employs a decentralized distribution model: Each computer in a BitTorrent “swarm” is able to download content from the other computers in the swarm, and in turn each computer also makes available content for those same peers to download, all via [Transmission Protocol (TCP)] connections. Furthermore, a computer can download different portions of the same content from multiple computers simultaneously, with each computer providing a different portion of the same content. (For example, a computer could obtain different portions of a video file from several different other computers in the swarm.)” (EN 11)

The problem for ISPs such as Comcast, however, is that Bit torrent technology has become a competitive alternative for traditional video providers, enabling consumers to access high-content video that they could otherwise view on cable or satellite. Therefore, ISPs who simultaneously distribute video programming have sought to protect their video interests by disrupting bit torrent transfers, in the hopes of preserving their exclusive stranglehold on the video market. Specifically, “‘when P2P unidirectional upload sessions . . . reach a predetermined congestion threshold in a particular neighborhood,’ Comcast's network ‘issues instructions called ‘reset packets’ (supra).’ Comcast further claim[s] that it sent RST packets to peer-to-peer TCP connections being used to upload content until the traffic ‘in the neighborhood drops below the predetermined level.’” (EN 12)

The FCC challenged this practice on the grounds that Comcast’s actions stymie innovation and are therefore contrary to the policy objectives set forth in the telecommunication act. However, whether the agency can exercise such regulatory oversight without direct authority is the subject of this litigation.

Analysis: To begin with, the FCC does not claim to have direct authority to regulate Broadband. “Indeed, in its still-binding 2002 Cable Modem Order, the Commission ruled that cable Internet service is neither a ‘telecommunications service’ covered by Title II of the Communications Act nor a ‘cable service’ covered by Title VI.” (EN 13) Rather, the FCC seeks to regulate Comcast pursuant to its Title I ancillary jurisdiction.

The agency first argues that the Brand X decision established plenary authority to regulate Cable Internet providers in any and all areas. The court rejects this argument on the basis that “the Commission cannot justify regulating the network management practices of cable Internet providers simply by citing Brand X's recognition that it may have ancillary authority to require such providers to unbundle the components of their services. These are altogether different regulatory requirements” (EN 14) (emphasis mine). In other words, simply because the court in Brand X recognized the possibility of regulating certain Cable Internet practices pursuant to its ancillary authority, this determination was limited to the specific area at issue in the Brand X and therefore does not necessarily speak to management practices involved in the instant case.

The agency next argues that Title I authority is supported by numerous provisions in the Telecommunications Act. These include: §§ 201, 230(b), 256, 257, 601(4) and 706(a). The court is quick to point out, however, that many of these provisions are in fact statements of policy rather than substantive powers. “[U]nder Supreme Court and D.C. Circuit case law statements of policy, by themselves, do not create ‘statutorily mandated responsibilities.’” (EN 15) I will address each provision in turn, in the order adopted by the court.

“Section 230(b) states, in relevant part, that ‘[i]t is the policy of the [U.S.] ... to promote the continued development of the Internet and other interactive computer services’ and ‘to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet.’” (EN 16) The agency admits that 230(b) is indeed a statement of policy and therefore does not provide regulatory authority in and of itself. However, the FCC claims that cases such as Southwestern Cable and Midwest Video I stand for the principal that “congressional statements of policy[, alone,] are sufficient to support ancillary jurisdiction.” (EN 17) The court rejects this interpretation, asserting that the policy statements upon which the earlier cases relied were used “in conjunction with an express delegation of authority to the Commission, i.e., Title III's authority to regulate broadcasting.” (EN 18) While policy objectives may serve to define the scope of the underlying statutory authority, they do not, themselves, delegate regulatory authority.

Section 706 instructs the agency to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans ... by utilizing ... price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.” (EN 19) While this provision is indeed a substantive directive, imposing affirmative duties to regulate, the agency, itself, has previously determined that “section 706 does not constitute an independent grant of authority … Rather, section 706(a) directs the Commission to use the authority granted in other provisions … to encourage the deployment of advanced services.” (EN 20) The same analysis applies with respect to section 256 (“Nothing in this section shall be construed as expanding ... any authority that the Commission may have under law in effect before February 8, 1996.” (EN 21))

Section 257 mandates that the FCC “complete a proceeding for the purpose of identifying and eliminating, by regulations pursuant to its authority under this chapter (other than this section), market entry barriers for entrepreneurs and other small businesses in the provision and ownership of telecommunications services and information services...” (EN 22) (emphasis mine). You will note that the italicized portion limits the FCC’s regulatory authority to carry out section 257 obligations to powers outside section 257 itself. While the court recognizes that the agency likely has ancillary authority to conduct a proceeding in the manner described in section 257, this authority is limited to the duties set forth in the provision: “…the Commission's attempt to dictate the operation of an otherwise unregulated service based on nothing more than its obligation to issue a report defies any plausible notion of ‘ancillariness.’” (EN 23)

Section 201 establishes the agency’s common carrier authority. The FCC argues that Comcast’s management practices impact various services regulated under Title II. However, this impact is somewhat attenuated. According to the agency, Comcast’s practices directly affect Internet communications tools, such as “voice over Internet Protocol” (voIP) (EN 24). Moreover, voIP, itself, “affect[s] the prices and practices of traditional telephony common carriers subject to section 201 regulation.” (EN 25) Therefore, the agency seeks to regulate Comcast’s business practices under Title II as such practices appear to proximately influence regulated phone services. The court, however, rejects this argument on the grounds that the agency failed to raise it within the Order.

Finally, section 623 deals with cable service regulation. Like section 201, the FCC failed to refer to section 623 in the Order and so the court is free to reject the claim outright. Regardless, the court believes the argument to be untenable, describing the agency’s diminished regulatory authority over cable and noting that its authority in this area has always been much more limited as compared to its Title II powers. “In the Order, the Commission does not assert ancillary authority based on this narrow grant of regulatory power. Instead, the Order rests on the premise that section 1 gives the Commission ancillary authority to ensure reasonable rates for all communication services, including those, like video-on-demand, over which it has no express regulatory authority.” (EN 26) The court once again refuses to extend plenary authority over broadband as it did previously in rejecting the agency’s interpretation of Brand X (supra).

Holding: The court concludes by vacating the order on the grounds that the FCC “failed to tie its assertion of ancillary authority over Comcast's Internet service to any ‘statutorily mandated responsibility…’” (EN 27) “[N]otwithstanding the ‘difficult regulatory problem of rapid technological change’ posed by the communications industry, ‘the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer ... Commission authority.’” (EN 28)

Moving Forward

Much has been made about the possible impact of the Comcast decision. Some believe that the court’s reasoning will greatly impede the Commission’s ability to carry out the broadband plan. According to the Austin Schlick, general council for the FCC, however, the Comcast decision will have “no effect at all on most of the plan … [as m]any of the recommendations for the FCC itself involve matters over which the Commission has an ‘express statutory delegation of authority.’” (EN 29) That being said, Mr. Schlick acknowledges that certain components are likely to be impacted by the Comcast opinion. (EN 30) To reach these areas, under Comcast, would require the Commission to provide a statutory basis for advancing its policy.

Chairman Genachowski, himself, recognizes that the decision has sent a serious blow to the legal theory advanced by the FCC in Comcast. However, the commissioner envisions a new way forward. This alternative approach would require a partial reclassification of broadband service by “recogniz[ing] the transmission component of broadband access service—and only this component— as a telecommunications service.” (EN 31) This narrow tailoring would enable the FCC to regulate broadband transmissions pursuant to its Title II authority. I am not entirely clear whether this approach is consistent with the agency’s historic reluctance to regulate information services, but it may indeed provide a sufficient statutory basis upon which to implement the plan and regulate broadband services more generally.

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End Notes:

1) National Cable & Telecommunications Ass'n v. Brand X Internet Services 545 U.S. 967, 976 (U.S., 2005).

2) 993 PLI/Pat 117, 121 (2010).

3) The impetus for the computer inquiries was the ability to transmit data over traditional phone networks and whether the agency could regulate the technology used to facilitate this new form of communication. Computer I considered whether Western Union’s practice of sending “data messages” constitutes “communication” sufficient to bring the company (and their device “data speed 40”) within the agency’s title II jurisdiction. Much to the disappointment of AT+T, and signaling regulatory changes to come, the FCC decided that these alternative uses were not equivalent to voice communications and were thus unregulable. Whether a particular service was regulable depended on who was providing the service and to what industry that service could be attributed (i.e. whether it was data or voice). The FCC adopted this policy of structural separation to encourage competition in the data market. This separation scheme prohibited any company from participating in both markets simultaneously. This distinction was unsustainable. Computer II resulted in a further modification and degradation of the earlier structural framework. Here, the FCC responded to fact that certain telephone services (so called “enhanced services” such as voice mail, caller I.D. and number blocking) involved the transmission of data, and, yet, were used to augment basic – regulable - phone calls. This time the agency chose to ignore who was providing the service, refusing to extend Title II regulation to any “enhanced service” regardless of why it was sent or from whom.

4) See 47 U.S.C.A. § 251. Interconnection

5) National Cable & Telecommunications Ass'n v. Brand X Internet Services. 545 U.S. 967, 974 (U.S., 2005)

6) 993 PLI/Pat 117 , 122 (2010).

7) Comcast Corp. v. F.C.C. 600 F.3d 642, 644, (C.A.D.C., 2010).

8) Id. at 655.

9) http://www.circleid.com/posts/20100406_fcc_comcast_ancillary_jurisdiction_ancillary_to_something/

10) According to the FCC, “for certain applications to work properly, [such as bit torrent files, the direct peer-to-peer] connection must be continuous and reliable. Computers linked via [such a] connection monitor that connection to ensure that packets of data sent from one user to the other over the connection ‘arrive in sequence and without error,’ at least from the perspective of the receiving computer. If either computer detects that ‘something seriously wrong has happened within the network,’ it sends a “reset packet” or “RST packet” to the other, signaling that the current connection should be terminated and a new connection established ‘if reliable communication is to continue.’” 23 F.C.C.R. 13028, 13029.

11) 23 F.C.C.R. 13028, 13029.

12) Id. at 13031.

13) Comcast Corp. v. F.C.C. 600 F.3d 642, 645 (C.A.D.C., 2010).

14) Id. at 651.

15) Id. at 644.

16) Id. at 651.

17) Id. at 652.

18) Id. at 651.

19) 47 U.S.C.A. § 1302 (a).

20) IN THE MATTERS OF DEPLOYMENT OF WIRELINE SERVICES OFFERING ADVANCED TELECOMMUNICATIONS CAPABILITY PETITION OF BELL ATLANTIC CORPORATION FOR RELIEF FROM BARRIERS TO DEPLOYMENT OF ADVANCED TELECOMMUNICATIONS SERVICES PETITION OF U S WEST COMMUNICATIONS 13 FCC Rcd. 24012, 24044-24047.

21) 47 U.S.C.A. § 256 (c)

22) 47 U.S.C.A. § 257(a)

23) Comcast Corp. v. F.C.C. 600 F.3d 642, 659-660 (C.A.D.C., 2010).

24) VoIP is essentially traditional phone service using an Internet connection (e.g. Vonage).

25) Comcast Corp. v. F.C.C. 600 F.3d 642, 660 (C.A.D.C., 2010)

26) Id. at 661.

27) Id.

28) Id.

29) http://blog.broadband.gov/?entryId=356610

30) These include: “recommendations aimed at accelerating broadband access and adoption in rural America; connecting low-income Americans, Native American communities, and Americans with disabilities; supporting robust use of broadband by small businesses to drive productivity, growth and ongoing innovation; lowering barriers that hinder broadband deployment; strengthening public safety communications; cybersecurity; consumer protection, including transparency and disclosure; and consumer privacy.” http://blog.broadband.gov/?entryId=356610

31) “The Third Way: A Narrowly Tailored Broadband Framework,” Julius Genachowski, p. 5. http://www.broadband.gov/the-third-way-narrowly-tailored-broadband-framework-chairman-julius-genachowski.html

The privacy issue has been a staple of the social media law conversation since the outset. Facebook and Twitter assure users that their information is perfectly safe behind the doors housing their servers based on the privacy level the user sets for himself…with the occasional hiccup of course.

It’s the new crop of social media tools, however, that has brought the focus back to privacy in a big way. Location-based services Foursquare, Gowalla, Loopt, and many others are vying for users to geo-tag and check-in to help fuel growth in what many see as the next online wave. The concept for each is simple and for the most part universal.

According to Wikipedia, Foursquare, “allows registered users to connect with friends and update their location.” Do we really need more tools to connect with friends when a text message, phone call or status update work just as well? Going back to Wikipedia for the explanation on what the incentive for using the service includes.

“Points are awarded on weekends and non-business hours for ‘checking in’ at venues. If a user has checked-in to a venue more than anyone else, on separate days, and they have a profile photo, they will be crowned “Mayor” of that venue, until someone else earns the title by checking in more times than the previous mayor. Badges are earned by checking into various venues. Some cities have city-specific badges that can only be earned in a specific city. Users can choose to have their Twitter and/or their Facebook accounts updated when they check in.”

It appears that in addition to providing friends, colleagues, and anyone with access to Twitter your immediate whereabouts, it also encourages it by creating a hierarchal system that lets you shout from the virtual rooftops that you’ve “checked in” at a venue more than anyone else has. Seems harmless enough until we look at the parody created by a site called Please Rob Me.

The site uses streams of data from Foursquare when they are posted to Twitter. This information is publicly available in a search, making it theoretically possible for a robber (or anyone else) to keep tabs on when you say you're in your home or not. Clearly, the point of the site is to raise awareness about this potentially dangerous location-based issue. Here’s Please Rob Me’s basic mission statement:

“The danger is publicly telling people where you are. This is because it leaves one place you’re definitely not… home. So here we are; on one end we’re leaving lights on when we’re going on a holiday, and on the other we’re telling everybody on the internet we’re not home. It gets even worse if you have ‘friends’ who want to colonize your house. That means they have to enter your address, to tell everyone where they are. Your address, on the internet. Now you know what to do when people reach for their phone as soon as they enter your home. That’s right, slap them across the face.”

Once word of the site for social media savvy burglars spread, Foursquare headed to their blog to post a reply to the growing concern and basically put the onus back on the users. For the most part that is deserved, but is there a way to allow for this “I’m heading to XYZ and if you happen to be in the neighborhood it would be great to connect” type social media interaction and still emphasize privacy. The founders behind the iPhone application Rally Up seem to have a head start.

Rally Up allows you to friend anybody who is a member of the service and then you choose between four different privacy settings. These choices range from not sharing information with a person, to just seeing a friend's update but not sharing information with them, to giving the contact the full range of access. The idea here is that you only give your real friends full access to all of your updates, while still giving you the option to follow anybody else on the service - though these users can obviously also choose to not share any information with you. Your own home's location is also always private and never shared on the service.

Just like Gowalla and Foursquare, Rally Up features badges, but the emphasis of the service is more on connecting you to your real friends. Because of this, the Rally Up team also decided not to allow users to feed their location to Twitter. You can, however, choose to share your location with your Facebook friends. The assumption here is that your Facebook friends are more likely to be your “real” friends and that Facebook will keep this data private. Instead of connecting to Twitter, Rally Up emphasizes private microblogging on the service itself. You can send short text messages to your friends and you can notify friends when you are on your way to a venue. You can even set up temporary locations, which is useful when going to a house party.

Overall, this approach puts the focus on connecting people and not on venues. This does help in terms of maintaining privacy, but I wonder if this model is sustainable across the bigger platforms that don’t charge a fee to download the application. The venue-focused approach obviously allows Foursquare to eventually monetize its service by attracting advertising dollars from the venues people check in at. Generating revenue has always been the concern for these social media havens that require expensive servers and expensive minds to keep their ships afloat and innovating. Facebook and Twitter have managed to do so on the basis of sheer user numbers alone and only time will tell if the funders of geo-location services are willing to sacrifice on privacy as much as the users are.

Introduction

On February 17, 2009 (this author’s 29th Birthday), the American Recovery and Reinvestment Act of 2009 was signed into law. One component of this legislation was to designate funding to develop broadband infrastructure with the goal of increasing broadband access to all Americans. Specifically, “[t]he law contains $7.2 billion of new spending on broadband infrastructure deployment and related broadband matters, of which $4.7 billion will be administered by the National Telecommunications and Information Administration (NTIA) and $2.5 billion will be administered by the Rural Utility Service (RUS), a division of the U.S. Department of Agriculture (USDA).” (EN1) While the grant money is to be distributed by the NTIA and RUS, congress simultaneously charged the Federal Communications Commission (FCC) with monitoring the use of these government subsidies as well as with developing a “national broadband plan “to ensure that all people of the United States have access to broadband capability.” (EN2)

The FCC submitted its national broadband plan (referred to herein as “the plan”) on March 16, 2010 (EN3) and last week began “the essential transition from planning to implementation.” (EN4) FCC Chairman Julius Genachowski reported yesterday that his agency has recently “releas[ed] a detailed agenda laying out a schedule for Commission proceedings and actions over the next year....” (EN5) While it is clear that the FCC is moving forward with the plan, the path to actual implementation will not be as smooth as some would have hoped. The recent DC Circuit decision, Comcast v. FCC (WL 1286658), reminds us that the FCC’s authority to regulate Internet communication remains murky. It is therefore important to keep in mind, should the FCC require additional powers to carry out any aspect of the plan, that some lawmakers have resisted calls to increase the FCC’s authority in this area. (EN6)

I will be dividing this discussion into two parts and it will therefore span the course of two blog posts. My first entry will detail why the plan is necessary as well as provide a brief overview of how the plan is structured. I will also explore how a national broadband plan will benefit the development and expansion of social networking. My second post will consider the possible impact of the Comcast ruling on the plan itself as well as its broader effect on FCC authority in general.

Why a national broadband plan?

According to the plan itself, “nearly 100 million Americans do not have broadband today[,]…[while] fourteen million Americans do not have access to broadband infrastructure that can support today’s and tomorrow’s applications.” (EN7) Moreover, “there are significant gaps in the utilization of broadband for other national priorities” (EN8) such as healthcare, education, national defense and law enforcement activities. To remedy this disparity in access and to facilitate more efficient broadband uses, the FCC focuses on two core principals: innovation and inclusion.

As the United States continues to fall further and further behind other nations with respect to the quality and access of broadband services (EN9) it is imperative that we update our aging infrastructure. This modernization is essential if we are to “[maintain] the greatest tradition of innovation and entrepreneurship in the world—one that combines creativity with engineering to produce world-leading applications, devices and content, as well as the businesses that bring them to market.” (EN10) It is also important that we take measures to ensure affordable broadband access to all Americans so as to prevent inequality, facilitate the dissemination of information and to encourage political and civic participation:

“Absent action, the individual and societal costs of digital exclusion will grow. With so many Americans lacking broadband access or the skills to make it matter, the Internet has the potential to exacerbate inequality. If learning online accelerates your education, if working online earns you extra money, if searching for jobs online connects you to more opportunities, then for those offline, the gap only widens. If political dialogue moves to online forums, if the Internet becomes the comprehensive source of real-time news and information, if the easiest way to contact your political representatives is through e-mail or a website, then those offline become increasingly disenfranchised.” (EN11)

A comprehensive plan is therefore necessary to guarantee that the United States remains a leader in twenty-first century communications both technologically and collectively (ie. as a people). We must ultimately work to develop an increasingly rich and complex network of voices to facilitate the exchange of ideas.

National Broadband Plan Overview

I will briefly describe the proposed structure of the plan (note that the plan is incredibly detailed so I will try to avoid getting bogged down in minutiae).

Part 1 - Innovation and Investment: The FCC begins this section by outlining four areas where it believes government intervention is likely to advance the title objectives. The agency first proposes examining the broadband ecosystem – a system comprised of networks, devices and applications – in order to develop recommendations designed to maximize “competition for value across the ecosystem.” (EN12) Such recommendations include developing data-driven competition policies, increasing transparency for consumers and facilitating competition as between wholesale broadband providers. Second, the FCC looks to free up more spectrum. (EN13) “By ensuring spectrum is allocated and managed as efficiently as possible, the government can help reduce the costs borne by firms deploying network infrastructure, thus encouraging both competitive entry and increased investment by incumbent firms.” (EN14) Thirdly, the FCC proposes lowering infrastructure costs by regulating particular resources, such as “pole attachments and rights of way.” (EN15) Finally, the FCC seeks to [invest] directly through research and development (R+D). In other words, the government will directly finance certain R+D projects.

Part II - Inclusion: Here, the FCC “makes recommendations to ensure that any American who wants to subscribe to broadband can get the service.” (EN16) This section is divided into two chapters, eight and nine. “Chapter eight sets a path to providing broadband to all Americans by extending the network through public investment in privately owned infrastructure.” (EN17) The agency proposes increasing availability by implementing a three-stage process to “reform…universal service (EN18) and intercarrier compensation.” Much in the way the Federal government seeks to provide basic healthcare for all Americans, the FCC sets forth target dates by which ISPs are to provide broadband service at minimum threshold download speeds accessible to all Americans (ie. the FCC is setting a floor). “Chapter 9 examines the barriers many Americans face in adopting broadband—such as cost, digital literacy and relevance—and considers specific programs to reduce these barriers.” (EN19)

Part III - National Purposes: This section addresses how developing broadband service will improve particular “areas…vital to the nation’s prosperity.” (EN20) These areas include: healthcare; education; energy and environment; economic opportunity; government performance; civic engagement; public safety. According to the FCC, “[t]he plan includes recommendations designed to unleash increased use, private sector investment and innovation in these areas.” (EN21)

Benefits to Social Networking

At a fundamental level, one’s social networking experience is shaped by the breadth and quality of the individual computer users who constitute the network. My former Telecommunications professor, Arturo Gandara, described this phenomenon as the most important justification for the expanding the definition of universal service (supra) to include so-called “information services” such as Internet communications. Professor Gandara believed that the FCC could effectively bridge the “digital divide” (EN22) - which currently effects millions of Americans - through this action. The notion is that everyone connected to the network adds value to the network. Therefore, the more people who join the network, the greater the value.

This idea is bolstered by the fact that the network, itself, is shaped by the network users. Take technological advancement, for instance. According to Gandara, “[i]nnovation often emerges from usage, and the subsequent evolution of a technology is shaped jointly by users and providers…[Moreover, t]he true economic benefits of a particular technology can only be discovered and understood through sustained use and experimentation by a variety of different users.” (EN23) This principal applies with equal force to the development of a broadband ecosystem (supra). The more people who access and utilize a particular network the greater the likelihood that they will expose network inefficiencies. Such exposure typically leads the user’s service provider to take action or perhaps leads the consumer, herself, to invent some way around the problem.

If we are serious about promoting innovation and increasing access, users and providers, alike, must engage in a reciprocal “give and take” so as to improve network efficiency and increase the network’s value to network users. Social networkers stand to benefit in this regard should the FCC implement the various policies set forth in the national broadband plan, as more people would ultimately participate in this "give and take." However, it is unclear whether the agency has the explicit authority to carry out such measures in toto.

TO BE CONTINUED…

------ End Notes -------

EN 1 - http://www.google.com/url?sa=t&source=web&ct=res&cd=2&ved=0CAsQFjAB&url=http%3A%2F%2Fwww.akingump.com%2Ffiles%2FPublication%2F14e0d53d-5f82-477d-a8a5-253dcc56feaa%2FPresentation%2FPublicationAttachment%2Fa2b51243-39fa-4a08-9871-2701be0d484a%2FBroadband%2520Funding%2520in%2520American%2520Recovey%2520and%2520Reinvestment%2520Act%2520of%25202009.pdf&ei=oTPDS5G9NoPTnAfMqaD5CQ&usg=AFQjCNHEFruyTlq5WDSB-oNkSdQM8tXUvQ&sig2=DD3NkiU6OrqePVuRL3lWOg

EN 2 - 6001(k)(2): “The national broadband plan required by this section shall seek to ensure that all people of the United States have access to broadband capability and shall establish benchmarks for meeting that goal. The plan shall also include:

•(A) an analysis of the most effective and efficient mechanisms for ensuring broadband access by all people of the United States,
•(B) a detailed strategy for achieving affordability of such service and maximum utilization of broadband infrastructure and service by the public,
•(C) an evaluation of the status of deployment of broadband service, including progress of projects supported by the grants made pursuant to this section, and
•(D) a plan for use of broadband infrastructure and services in advancing consumer welfare, civic participation, public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, worker training, private sector investment, entrepreneurial activity, job creation and economic growth, and other national purposes.”

EN 3 - http://www.montereyherald.com/technology/ci_14683784

EN 4 - Written Statement of Julius Genachowski, FCC Chairman, submitted to the Senate Commerce Commitee on April 14, 2010: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-297494A1.pdf

EN 5 - http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-297494A1.pdf

EN 6 - http://thehill.com/blogs/hillicon-valley/technology/86189-ensign-regulating-the-internet-a-qmajor-mistakeq

EN 7 - “Connecting America: The National Broadband Plan,” p. 3

EN 8 - “Connecting America: The National Broadband Plan,” p. 4

EN 9 - Chairman Genachowski details this trend in his written statement submitted to the Senate Commerce Committee referred to above: “First, studies place the U.S. as low as 18th when it comes to important attributes of broadband adoption and speeds. Our record shows roughly 65% adoption in the U.S. compared to significantly higher adoption percentages – up to 90% or more -- for some countries in Asia and Western Europe. One study ranks the U.S. 6th out of 40 industrial countries in innovative competitiveness – and 40th out of the 40 in “the rate of change in innovative capacity.” http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-297494A1.pdf

EN 10 - “Connecting America: The National Broadband Plan,” p. 4

EN 11 - “Connecting America: The National Broadband Plan,” p. 5

EN 12 - “Connecting America: The National Broadband Plan,” p. 35

EN 13 - This term refers to the electromagnetic spectrum. The office of Engineering and Technology, one of eleven FCC staff offices, is charged with “manag[ing] the electromagnetic spectrum, specifically frequency allocation and spectrum usage.” http://en.wikipedia.org/wiki/Federal_Communications_Commission

EN 14 - “Connecting America: The National Broadband Plan,” p. 29

EN 15 - “Connecting America: The National Broadband Plan,” p. 29

EN 16 - “Connecting America: The National Broadband Plan,” p. 129

EN 17 - “Connecting America: The National Broadband Plan,” p. 129

EN 18 - Universal service is a federally mandated program established pursuant to the 1996 Telecommunications Act. The goal of Universal Service is to provide affordable “telecommunications services” to all Americans. According to § 254(c)(1) of the statute, “universal service is an evolving level of telecommunications services that the Commission shall establish periodically under this section, taking into account advances in telecommunications and information technologies and services (emphasis mine). Note that the definition of universal service will change over time. The FCC is currently seeking to expand universal service to include broadband technology as a basic “telecommunication service.” This move would ensure that broadband service be made accessible to every citizen throughout the land.

EN 19 - “Connecting America: The National Broadband Plan,” p. 129

EN 20 - “Connecting America: The National Broadband Plan,” p. 129

EN 21 - “Connecting America: The National Broadband Plan,” Executive Summary (p. xiii)

EN 22 - http://en.wikipedia.org/wiki/Digital_divide

EN 23 - 33 Wake Forest L. Rev. 107, 121-122

In my previous two posts (here and here), I have discussed what commentators term “cyberharassment,” Cyberharassment is generally defined as an instance of online communication intended to harass, annoy, defame or disparage a particular individual or group. While cyberharassment has received a great deal of media attention recently, law and policymakers have had a difficult time developing an effective means of deterring cyberharassment that does not run afoul of the First Amendment.

Last month, the California Second Appellate District Court of Appeal issued what has been touted as a “landmark” ruling on this issue. The Court of Appeal held that the First Amendment does not protect hostile Internet banter among teenagers if the messages can be taken as genuine threats of harm.

The case, D.C. v. R.R., 182 Cal.App.4th 1190 (2010), concerned a 15-year-old high school student who was the subject of derogatory comments regarding his sexual orientation and threats of bodily harm on his personal website. The student maintained a website to promote his entertainment career. When the anonymous comments began to appear on its guestbook, the student reported the problem to the administration at his high school, as well as several students that he believed were responsible. The students admitted to posting the threats, but the school did not take any significant disciplinary action against the students.

The student filed a claim under a California hate crimes law, as well as claims for defamation and intentional infliction of emotional distress. The court’s analysis focused on the following comment by R.R.:

I want to rip out your fucking heart and feed it to you. ... I've ... wanted to kill you. If I ever see you I'm ... going to pound your head in with an ice pick. Fuck you… I hope you burn in hell.

The court opened its analysis by noting that the First Amendment does not protect all forms of speech. As the Fifth Circuit explained in Shackelford v. Shirley, 948 F.2d 935, 938 (5th Cir. 1991):

The notion that some expression may be regulated consistent with the First Amendment... starts with the already familiar proposition that expression has special value only in the context of dialogue: communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one's beliefs... It is not plausible to uphold the right to use words as projectiles where no exchange of views is involved.

Working from this premise, the court discussed R.R.’s comment as a “true threat” — a category of unprotected speech where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence on a particular individual or group. Under an objective test, the court found that a reasonable person would foresee that the post would be interpreted as a “serious expression of an intent to inflict bodily harm.” The court went a step further and found that R.R. subjectively intended that his message be interpreted as a threat. Under either test (courts are split on the appropriate standard), the court made it clear that they would conclude that the statement is not protected speech.

Unsurprisingly, the dissenting opinion takes the majority to task with their somewhat loose application of the true threat doctrine to the facts of the case. As the dissent points out after guiding the reader through several pages of sophomoric insults directed at D.C., “taken together, all of the posts amount to nothing but a lot of adolescent sex-obsessed hyperbolic derision, sarcasm, and repulsive foolishness.”

And, to be honest, it does appear that the dissent has the stronger of the two arguments. While the emotional distress cyberharassment can cause is staggering — as the majority rightfully points out, “children have killed each other and committed suicide after having been involved in a cyberbullying incident” — it is difficult to view R.R.’s comment as a true threat rather than childish banter.

Nevertheless, policymakers may be able to learn a few things about the way the majority and dissent analyze the case. The true threat doctrine could provide a viable framework for lawmakers seeking to criminalize cyberharassment. Many proposed tests, such as the following statutory language discussed in a recent law review article, appear overbroad:

Under Congress's Article I commerce power, it shall be unlawful for any person or group, known or anonymous, to utilize a computer network form of electronic communication to target a specific person for no defined purpose, and through the use of words or language, aim to harass, annoy, embarrass, abuse, threaten, induce fear of bodily harm, or a combination thereof, in a victim.

There is a strong claim that speech intended to harass, annoy or embarrass are protected by the First Amendment. Even homophobic, racist and sexist slurs are not crimes if uttered on a sidewalk. As such, cyberharassment statutes should not attempt to combat speech that would be protected by the First Amendment if spoken face-to-face. But a statute that exclusively focuses on criminalizing what meets the judicial interpretation of a “direct threat” will not only pass constitutional muster, it arguably directly combats the most pernicious and damaging forms of cyberharassment while leaving protected speech untouched.

In her article Women Lawyers Blog for Workplace Equality: Blogging as a Feminist Legal Method, 20 Yale J.L. & Feminism 357, Alison Stein outlined some of the latest blogging trends among female attorneys. She suggests that women lawyers with workplace grievances are turning to the blogosphere rather than the law to resolve their disputes. Blogging provides these women with a means to challenge gender bias in the profession, and it allows them to share the information they need to become better negotiators in the legal workplace. (362)

At first glance it is surprising that women who are trained in the law choose to resolve their own grievances outside the legal system. In many cases the workplace grievances held by women lawyers could in fact be addressed in a court of law. (368) Ms. Stein argues that there are four situations in particular where women attorneys may turn to blogging as an outlet. They are: (1) when there is recognition of the current law’s limited ability to vindicate rights; (2) when the grievance is born out of institutional bias and mindset; (3) when the grievance is nonlegal in character; and (4) when there is an appreciation for the anonymity of blogging and its reputation-protecting benefits. Blogging for any of these reasons may lead to change in the workplace and in the life of the blogger. The personal benefits of blogging range from networking, activism, and support, to concrete change in the blogger’s position in the workplace. (369)

Women attorneys may choose to blog about their grievances simply because it is easy. It is a low-cost, highly accessible, and safe way to advocate for their workplace rights. (389) In many cases women have formed online communities where they can seek out support and advice on the challenges they face. An important outlet for these discussions is the site Ms. JD. Launched in 2006, Ms. JD is a blog website aimed at women in the legal profession. (370) The sites founder Elizabeth Pederson explains that “[A] lot of women like myself are afraid to say what they think and don’t want to make waves. Lots of women have arguably been harassed and they don’t want to do anything that will hurt them professionally or lead to retaliation. But blogging allows them to start a conversation, and get connected to other women so they know they are not the only ones who have gone through something, and so they have ideas about how to approach the challenge.” (390)

If women lawyers blog because it is easy, then one should at least ask whether blogging is ultimately counter-productive. It is at least arguable that when women vent their frustrations online, the satisfaction they receive there may prevent them from being more actively involved in addressing women’s issues directly. Ms. Stein refutes this argument by explaining that in many cases bloggers are formulating their thoughts for the first time when they blog about these issues. By thinking, discussing, and writing about their challenges, they are laying a foundation that may still lead to a more activist role. Writers are not blogging in lieu of participating in a women’s organization or lobbying their representative. Ms. Stein suggests that blogging is a vehicle through which women may support and facilitate each other’s efforts to address women’s issues in the legal profession. (392)

Some women lawyers may turn to blogging precisely because they are so familiar with the legal system and its shortcomings. Ms. Stein points out that following the case Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), conversations were rampant on Ms. JD precisely because women lawyers were concerned about how this legal development would affect their own workplace rights and environment. The concerns of women attorneys may have been heightened because the legal profession has long been notoriously male-dominated. (376)

In Ledbetter the Supreme Court recognized that the plaintiff had been a victim of pay discrimination based on gender. Nonetheless, the court held that she could not challenge this discrimination in court since more than 180 days had passed since the discrimination began. The plaintiff’s claim failed because she had been unaware of the gender discrimination during a large part of that time period. The result of this decision is that victims of pay discrimination that have no knowledge of the discrimination or that are initially too afraid to file a lawsuit, will be left without any remedy at law. (376) This puts potential plaintiffs in a predicament because they have limited time after they discover the discrimination in which to file a lawsuit. Moreover, workplace retaliation, including retaliation following a lawsuit filing, is not uncommon.

Ledbetter led to much discussion on the Ms. JD site. Women attorneys were understandably worried about their own experiences with unequal pay. Blogging provided a way that they could express their concerns without sparking retaliation against themselves. (377) Since the Ledbetter decision imposed a firm deadline on filing a discrimination action, blogging allowed female attorneys could articulate their thoughts and collect data from others as they considered whether any of their own experiences warranted a lawsuit. Ultimately, blogging has provided women attorneys a safe outlet for the discussion and these and numerous other issues. (378)

Review sites are commonplace across the web today as Amazon, Yelp, and TripAdvisor allow consumers hear what others have to say about products, restaurants and businesses. A new site called Unvarnished, currently in beta, seeks to offer the same service, but the subjects of review are in fact individual people. Unvarnished trumpets its service, calling itself an “online resource for building, managing and researching professional reputation,” and allows people to anonymously review one another, and respond to those reviews. Site creator Peter Kazanjy explains:

“It’s not about who’s best in bed, but rather about a person’s management style, productivity, integrity and relationships. Professional reputation resides in the brains of all your colleagues and co-workers, and it’s very hard to access that. This is the place for productive conversation about this topic.”

The New York Times Technology Blog lays out the process simply.

“Any member can review any other member, and if someone does not have a profile on the site, you can create one for them without their permission. The person being reviewed has very little control over what is written; they cannot delete a review, but can offer a written response, or perhaps ask their friends to contribute more positive portrayals.”

On the flip side, Unvarnished isn’t exactly drawing rave reviews itself. A quick scan across the web finds ample evidence. TechCrunch calls it a “clean, well-lighted place for defamation.” TGDaily “can’t imagine why anyone in their right minds would sign up for it.” ZDNet wonders how many lawyers are brushing up on the spelling of defamation. Thankfully the Los Angeles Times Technology Blog is already answering that question.

Wilson Sonsini Goodrich & Rosati lawyers Fred Alvarez and Kristen Dumont were asked to voice their thoughts. Alvarez stated:

“Absolutely it is litigation nightmare. The essential question is, ‘Who can I sue?’ Obviously, all the principles of defamation apply to things posted anywhere, including the Web.”

Dumont further added:

“It essentially encourages defamation because it guarantees a forum for venting. If you write something on your personal blog, your comments are less likely to be viewed/disseminated. But this forum is designed, in essence, for taking swipes at folks you don’t like. And it’s smartly leveraging Facebook’s very popular format to do so.”

So let’s examine where the liability could rest if an individual receiving overly critical and seemingly unfounded negative reviews decides to sue?

The Unvarnished site users, first on the list, won’t enjoy any of the immunities granted to the site itself under the law, and thus the standard laws pertaining to defamation and infringement apply. If a user is found to have posted defamatory content, the user will be liable. The anonymous nature of the poster is what will make locating the target near impossible. Having a verified Facebook account in order to sign up can aid in location on the backend, although it’s hard to imagine Unvarnished cooperating in identifying users without a court order.

If the reviewer is actually identified, the First Amendment and state constitutional free-speech protection will undoubtedly come into play in any type of defamation suits. Often, defamation is not protected, but in A.B. v. State of Indiana, A.B., a minor, posted expletive-filled comments on a social networking site, challenging the school’s anti-piercing policy. A juvenile court judge found that the comments constituted criminal harassment, but the Court of Appeals reversed, finding that the speech was protected by the Indiana State Constitution as political speech aimed at the principal’s policies. Would this only apply to those critical of an employer or manager working for a state entity? If so, then a majority of reviewers are unlikely to qualify under this rationale and would be open to liability, if you can identify them of course.

Unvarnished would naturally be the next target, but it could qualify for protection under Section 230 of the Communications Decency Act. This immunizes website from any liability resulting from the publication of information provided by another and usually arises in the context of defamation, unless the website, in whole or in part, creates or develops contested information. A recent 9th Circuit opinion has focused on this element and created uncertainty for social networking sites that may be relying on Section 230 to protect them from claims relating to the content that their users post or create.

In Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, two fair housing groups sued the website Roommates.com, alleging that the roommate networking service provided violated the Fair Housing Act. The district court found that the website qualified for Section 230 immunity and entered a summary judgment. On appeal, the Ninth Circuit reversed and remanded for a trial on the merits. The court found that the website created or developed information on the site by creating the questions that users answered when creating their profiles, and by channeling or filtering the profiles according to the answers to those questions.

Essentially, the ruling holds that, by channeling information to users and providing search capabilities, Roommates.com added an additional layer of information that it is at least partly responsible for creating or developing. The effects of this new “channeling” test could impact the ability of social networking sites seeking protection under Section 230. It seems this judicial precedent may not align with Congressional intent, and legislative clarification may be on the horizon. Otherwise, many social sites could find themselves open to liability for information posted by users and the result would be a reduction of social networking sites or a limit to the application of what existing sites now provide.

Either way, it’s difficult to see the positive angle if the site remains as currently constructed. Requiring reviewers to register and pass security protocol would be a simple and seemingly responsible way for Unvarnished to proceed towards legitimacy. It is far too easy to imagine the prospective employer who accesses Unvarnished and allows one well-worded negative review to significantly impact the recruiting process. Reputations are built slowly and painstakingly and should not be brought down by the swift keystrokes of a colleague whose contempt for success clouds an otherwise perfectly qualified candidate.