Showing 9 of 15 Publications by Tom Struble

Amicus Brief, Tennessee v. FCC, 6th Circuit

Amicus Brief "This case is not about broadband deployment or competition, nor local autonomy. It is about the FCC’s claim of sweeping power and its essentially unchecked discretion to govern the Internet..."

Summary

“This case is not about broadband deployment or competition, nor local autonomy. It is about the FCC’s claim of sweeping power and its essentially unchecked discretion to govern the Internet, including the supposed power to preempt decisions made by elected state lawmakers—without Congressional authorization.

To reject the FCC’s reinterpretation of Section 706 as an independent grant of authority is not to say that nothing more need be done to promote broadband deployment and competition—but to affirm two facts about the Telecommunications Act of 1996 (“1996 Act”). First, Congress intended Section 706 as a command to the FCC to use the abundant authority granted to it elsewhere in the 1934 Communications Act (“1934 Act”) to promote broadband deployment to all Americans. As the FCC said in 1998:

“After reviewing the language of section 706(a), its legislative history, the broader statutory scheme, and Congress’ policy objectives, we agree with numerous commenters that section 706(a) does not constitute an independent grant of forbearance authority or of authority to employ other regulating methods. Rather, we conclude that section 706(a) directs the Commission to use the authority granted in other provisions, including the forbearance authority under section 10(a), to encourage the deployment of advanced services. Advanced Services Order, ¶ 69 (emphasis added)”

Second, rejecting the FCC’s reinterpretation means affirming that Congress intended “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation,” 47 U.S.C. § 230(b)(2); see also 47 U.S.C. § 230(a)(5) (“The Internet and other interactive computer services have flourished, . . . with a minimum of government regulation.”)…”

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Telecommunications & Regulated Utilities

Comments, In The Matter of Nomi Technologies, Inc., FTC

Regulatory Comments "The FTC’s consent decree with Nomi Technologies is remarkable for two things. First is what it does not do, practically: empower consumers to opt-out of cell phone tracking while shopping in retail stores..."

Summary

“The FTC’s consent decree with Nomi Technologies is remarkable for two things. First is what it does not do, practically: empower consumers to opt-out of cell phone tracking while shopping in retail stores. Perversely, the settlement may make it less likely that consumers will be able to do so, or that they will even be notified about in-store tracking. Second is what it does do legally: confirm that the FTC has all-but abandoned the materiality requirement that lies at the heart of the Deception Policy Statement.

Our comments on this matter are embodied in the attached ICLE white paper, In the Matter of Nomi, Technologies, Inc.: The Dark Side of the FTC’s Latest Feel-Good Case (Appendix A). In general, we find troubling the FTC’s continuing use of the so-called “common law of consent decrees” — building de facto regulation through unadjudicated settlements, thus largely (if not entirely) avoiding external judicial constraint upon its discretion to apply the requirements of deception and unfairness without the appropriate analytical rigor required by judicial review. In particular, we object to the quasi-precedential standards set by this settlement: that privacy policies merit the presumption of materiality; that each sentence of a
privacy policy can merits the presumption of materiality, even taken in isolation and regardless of the specific circumstances; and that that presumption is effectively irrebuttable.”

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Data Security & Privacy

Comments, Operation and Cert. of Small Unmanned Aircraft Systems, FAA

Regulatory Comments "We believe the Federal Aviation Administration (FAA) has failed to appropriately weigh the costs and benefits, as well as the First Amendment implications, of its proposed rules for the Operation and Certification of Small Unmanned Aircraft Systems (UAS)..."

Summary

“We believe the Federal Aviation Administration (FAA) has failed to appropriately weigh the costs and benefits, as well as the First Amendment implications, of its proposed rules for the Operation and Certification of Small Unmanned Aircraft Systems (UAS). The proposed rules would unduly burden both current and future economically and societally valuable uses of drones, in some cases effectively banning obviously valuable uses outright. Among other things, the proposed rules would effectively prohibit the use of commercial drones in populated areas, undermining what may well be drones’ most economically valuable uses.”

The proposed rules would unduly burden both current and future economically and societally valuable uses of drones, in some cases effectively banning obviously valuable uses outright. Among other things, the proposed rules would effectively prohibit the use of commercial drones in populated areas, undermining what may well be drones’ most economically valuable uses. Absent justification that such overbroad and costly rules are required to ensure the public safety, they are more restrictive than necessary to satisfy the FAA’s core statutory responsibility: to protect the safety of the general public.

Moreover, these rules constitute a de facto ban on most — indeed, nearly all — of the potential uses of drones that most clearly involve the collection of information and/or the expression of speech protected by the First Amendment. Indeed, many of the rules likely amount to a prior restraint on protected commercial and non-commercial activity, both for obvious existing applications like newsgathering and for currently unanticipated future uses. The same failure to tailor the rules according to an appropriate analysis of their costs and benefits also likely causes them to violate the First Amendment. Without proper tailoring based on the unique technological characteristics of drones and a careful assessment of their likely uses, the rules are considerably more broad than the Supreme Court’s “time, place and manner” standard would allow.

Finally, the FAA’s stated interest in protecting safety may be viewed by a court as being, at least in part, a pretext for attempting to regulate the use of UAS to collect information in order to address “privacy” concerns about uses many would find unsettling. We do not dismiss such concerns, but we believe there are better – and more legally supportable – ways to handle them than the effective ban in populated areas imposed by the proposed rules. If every new technology required the consent of everyone who might hypothetically be harmed by it, however small the risk, technological progress would come to a standstill, especially the progress of technologies that allow us to better observe, understand and communicate about the world…”

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Innovation & the New Economy

Reply Comments, Deployment of Adv. Telecommunications Services, FCC

Regulatory Comments "Promoting broadband deployment should be the overarching goal of everything the FCC does. To that extent, we applaud the Commission for finding time to include an eleven (11) - paragraph Notice of Inquiry about how promote broadband deployment in its new Broadband Progress Report..."

Summary

“Promoting broadband deployment should be the overarching goal of everything the FCC does. To that extent, we applaud the Commission for finding time to include an eleven (11) – paragraph Notice of Inquiry about how promote broadband deployment in its new Broadband Progress Report. Yet this seems to be, quite literally, an afterthought — a small gesture towards removing actual barriers to broadband deployment after a significant expenditure of staff resources on crafting new regulations that either have nothing to do with broadband deployment or would probably discourage broadband deployment…”

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Telecommunications & Regulated Utilities

ICLE Comments, Promoting Innovation and Competition in the Provision of MVPD Services

Regulatory Comments In this proceeding, the Commission proposes to expand the definition of a multichannel video programming distributor (MVPD) to encompass “subscription linear” online video distributors (OVDs), defined as services that make “multiple streams of prescheduled video programming available for purchase” over the Internet.

Summary

In this proceeding, the Commission proposes to expand the definition of a multichannel video programming distributor (MVPD) to encompass “subscription linear” online video distributors (OVDs), defined as services that make “multiple streams of prescheduled video programming available for purchase” over the Internet. We believe this proposal is unwise as a policy matter and incorrect as a matter of statutory interpretation. Instead, we urge the Commission to affirm the Media Bureau’s Transmission Path Interpretation, which holds that an MVPD
must “own or operate the facilities for delivering content to consumers.” We contend that this is the only permissible construction of the term MVPD as used in the Communications Act.

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Telecommunications & Regulated Utilities

Comments, Effects of Big Data on Low Income & Underserved Communities, FTC

Regulatory Comments "To the American ear, there is perhaps no uglier word than “discrimination.” The mere mention brings to mind Bull Connor, turning police dogs and fire hoses onto Martin Luther King, Jr.’s non violent demonstrators against Jim Crow in Birmingham, back in the 1962..."

Summary

“To the American ear, there is perhaps no uglier word than “discrimination.” The mere mention brings to mind Bull Connor, turning police dogs and fire hoses onto Martin Luther King, Jr.’s non violent demonstrators against Jim Crow in Birmingham, back in the 1962. Or perhaps subtler manifestations of racism.We all want America to be that nation King spoke of, where everyone “will not be judged by the color of their skin, but by the content of their character.” Yet this is precisely what “Big Data” offers: by studying correlations in larger data sets, “data scientists” can craft algorithms that distinguish better between superficial attributes like race, sex, and sexual orientation and deeper attributes like reliability, honesty, credit-worthiness and other aspects of the “content of our character.””

Yet this is precisely what “Big Data” offers: by studying correlations in larger data sets, “data scientists” can craft algorithms that distinguish better between superficial attributes like race, sex, and sexual orientation and deeper attributes like reliability, honesty, credit worthiness and other aspects of the “content of our character.” In short, Big Data may mean less of  the Bull Connor kind of discrimination and more of the kind that would have seemed natural to Jane Austen’s readers (Merriam Webster’s second definition). This is precisely what credit scoring did: replacing the old system where bankers made!lending decision! based on the banker’s personal judgment — and biases — with one that discriminated between good and bad credit risks, regardless of superficial attributes or the simple social proximity between banker and borrower…”

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Data Security & Privacy

Reply Comments, NC & TN Petitions Restricting Municipal Broadband

Regulatory Comments "The International Center for Law and Economics (ICLE) and TechFreedom filed initial comments in these proceedings urging the Federal Communications Commission (“FCC” or “Commission”) not to preempt the state laws at issue in North Carolina and Tennessee..."

Summary

“The International Center for Law and Economics (ICLE) and TechFreedom filed initial comments in these proceedings urging the Federal Communications Commission (“FCC” or
“Commission”) not to preempt the state laws at issue in North Carolina and Tennessee because (1) the Commission lacks the legal authority to do so under Section 706, (2) even if the
FCC had such authority, it would be a double-edged sword, which could be used to ban government-owned networks in the future, so it should not be exercised in this case, (3) such a
reversal in approaches could be premised on the rather obvious economic point that government provision of broadband may in fact decrease broadband deployment and investment in the aggregate by deterring private broadband competition; and (4) in general, government-run broadband, which lacks profit-driven feedback loop, is unlikely to serve consumers better in the long-run than private provision of broadband…”

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Telecommunications & Regulated Utilities

Reply Comments, In the Matter of Protecting and Promoting the Open Internet

Regulatory Comments "Any new rules issued by the Commission should not be based on Title II. For the reasons we explained in our comments, we believe re-opening Title II would be a disaster in ways that Title II proponents do not seem to understand – or, at least, have not been willing to seriously discuss."

Summary

“Any new rules issued by the Commission should not be based on Title II. For the reasons we explained in our comments, we believe re-opening Title II would be a disaster in ways that Title II proponents do not seem to understand – or, at least, have not been willing to seriously discuss.”

“First, subjecting broadband to Title II would not even allow the FCC to do the one thing the D.C. Circuit’s Verizon decision clearly bars the FCC from doing under Section 706: banning “paid prioritization.”…Second, the Commission cannot simply “reclassify” broadband in the sense that that term has been used by Title II proponents; the FCC can only re-open the interpretation of the key definitions of the 1996 Telecommunications Act…Third, Title II proponents invariably assert that any problems created by Title II can be solved by the FCC
through various forbearance proceedings…”

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Telecommunications & Regulated Utilities

Comments, NC & TN Petitions Restricting Municipal Broadband Networks

Regulatory Comments "On July 24th, 2014, the Electric Power Board (EPB) of Chattanooga, Tennessee, and the City of Wilson, north Carolina, filed separate petitions with the Federal Communications Commission..."

Summary

“On July 24th, 2014, the Electric Power Board (EPB) of Chattanooga, Tennessee, and the City of Wilson, north Carolina, filed separate petitions with the Federal Communications Commission (“FCC” or “Commission”), each asking the FCC to use the authority the FCC has claimed under Section 706 of the Telecommunications Act of 1996 to preempt state laws in Tennessee and North Carolina restricting the deployment of municipally-owned broadband networks. Just four days later,the Commission released a Public Notice establishing the current comment cycle, giving interested parties scantly over a month’s time to review and respond to the complex and voluminous petitions, despite the litany of other important and intricate issues currently before the FCC.

TechFreedom, ICLE, and seven other organizations – many of which are small operations with limited resources – filed a request seeking to have the comment deadline in this proceeding extended, but this request was summarily denied. Thus, due to time and resource constraints, the following comments will not address each and every point raised by the two petitions. Rather, these comments will address a few discrete points – including (1) the legal authority for Federal preemption in this case, and (2) the policy implications raised by the two petitions – before offering some general advice to the Commission: Deny the petitions of EPB and Wilson; issue a Notice of Inquiry to gather further data on the efficacy of government-run broadband networks; and, in the meantime, focus on broadband deployment initiatives that have gathered more consensus (e.g., promoting “Dig Once” policies, extending pole-attachment rights to broadband-only providers, and encouraging intermodal facilities-based competition, such as by maximizing the reallocation of spectrum for wireless broadband). We also note the unique dangers posed by increasing control over broadband, particularly in terms of censorship, surveillance, and other kinds of privacy invasions.”

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Telecommunications & Regulated Utilities