Thank you Jeff and Chris. It’s an honor to be here with all of you today. It’s been 644 days since I left the FCC, but who’s counting? For you Browns fans, that’s only 9 days more than the time between the team’s victories. But I’m a Jets fan, so we’ll say nothing more about that!
Today I’d like to make the case for a strong FCC that is empowered to protect consumers and competition. One that has independent leadership and a staff dedicated to its responsibility, enshrined in law, to protect the public interest, convenience and necessity. Without such an agency, large numbers of Americans not only will remain unconnected, they’ll have nobody to ensure that our communications networks are affordable, accessible, open, fast and fair.
I didn’t always feel this way. I spent the first 25 years of my career as a public interest advocate who denounced the FCC early and often. It was a captured agency, I said. It was opaque. It moved too slowly. It moved too quickly. It was timid. It ignored consumer interests. But on November 4, 2013, new FCC Chair (and Ohio State grad) Tom Wheeler announced that he had hired me to serve on his senior staff. The New York Times even wrote about it, in an article titled: “FCC’s Chief Hires a Critic of the Agency.”
There was a period of adjustment for me at the FCC, but I soon learned that under the right leadership, the agency can be a force for good. While the Tom Wheeler FCC is perhaps best known for adopting the strongest ever net neutrality rules and restoring the agency’s authority over broadband Internet access, we accomplished so much more in just over 3 years. Modernizing the E-Rate and Lifeline programs; reinvigorating the moribund enforcement and consumer bureaus; reforming intrastate prison phone rates; maintaining rules that preserve media diversity; setting the standards for and running the first ever incentive auction for broadcast spectrum; putting a halt to the Comcast-Time Warner Cable and Sprint-T-Mobile mergers; raising the speed requirements for broadband Internet access; adopting broadband privacy rules; and while we eventually lost in court, pre-empting the laws of North Carolina and Tennessee that prohibited municipalities from building or expanding their broadband networks.
But some of you may recall that when Wheeler was first nominated by President Obama to succeed outgoing Chair Julius Genachowski, there was grumbling by some of my public interest colleagues because Wheeler had been the head of the cable industry trade association in the 1970’s and 80’s and the wireless industry association in the 90’s. What my colleagues didn’t take into account was that Wheeler had led those industries when they were the new kids on the block.The incumbents at the time tried to hijack the regulatory process to stifle these new competitors in their cribs. Also, at the tender age of 67, Wheeler did not need an FCC Chairmanship to get his next job.
The broadband, wireless, cable and broadcasting markets that Tom Wheeler inherited looked nothing like those of the 70’s, 80’s or 90’s. They were (and still are) enormously consolidated and in the case of broadband and cable, either regional monopolies or duopolies. Their prices were (and still are) exorbitant. And they were used to telling the FCC what to do, and they usually succeeded.
Wheeler’s agenda reflected his desire to protect consumers and give them the benefit of what he called “competition, competition, competition.” Most importantly, Wheeler took the FCC from the biggest incumbents and gave it back to the American people. His senior staff and bureau chiefs reflected this – he hired a diverse staff from federal, state and local government, public interest and private law practice, all of whom (and I got to work with each of them) put the public interest first.
Tom Wheeler and his staff believed in the power of government to make life better for ordinary Americans. True, we weren’t curing cancer or preventing climate change or improving our education system. But we were working to make sure that all Americans had affordable access to an open and decentralized communications system that could connect you to an oncologist, reduce your carbon footprint and bring the classroom to your home. Pretty important stuff if you ask me.
Since we’re in Ohio, I’ll tell you a story about one of your candidates for Governor, Richard Cordray, who also happened to be the first head of the Consumer Financial Protection Bureau. The CFPB was created to protect Americans from predatory financial and banking practices, among other things. While Wheeler often broke bread with government dignitaries, it was his meetings with Cordray that he most talked about – because inevitably, the two of them would try to one-up each other as to who had done most for consumers.
Imagine something like that happening today. What is remarkable about Ajit Pai’s FCC is not that it is inclined to deregulate – that’s expected in a Republican administration – but that it is more than happy to abdicate the agency’s power to oversee broadband Internet access. In December of 2017, as part of its decision repealing the 2015 net neutrality rules, Pai and his two Republican colleagues decided that the FCC would no longer protect consumers and competition in the broadband market. They decided that the agency which for 84 years had been tasked with overseeing access to communications networks would no longer oversee access to the most important communications network of our time, if not of all time.
This was a truly radical decision – while there have been disagreements about the best way to codify net neutrality over the past 20 years, there has been bipartisan agreement that the FCC should have the authority and the responsibility to protect consumers and competition in the broadband market.
Chairman Pai would say that I’m being hyperbolic – in his mind, he returned broadband oversight to the Federal Trade Commission, where it resided from 2005 to 2015. But the FTC’s authority to oversee the broadband market is far more constrained than the FCC’s. First, the FTC has no legal authority to make rules, which protect consumers before they are harmed and moderate bad industry behavior. Second, under the law, the FTC’s power to protect consumers is limited to “unfair and deceptive trade practices.” The FTC has interpreted this narrowly, so that a consumer will only get relief if a broadband provider isn’t transparent or is otherwise untruthful about its practices. So if AT&T tells you in its terms of service that it reserves the right to raise its prices at any time and then one day decides to triple them, there is nothing the FTC will do.
Ask the FTC how many times it brought an enforcement action against a broadband provider that didn’t involve either deception or omission, and you’ll hear crickets. Last Friday I attended a speech by outgoing FTC Commissioner and former Acting Chair Maureen Ohlhausen. In defending Pai’s decision, Ohlhausen gave a number of examples of the FTC protecting consumers – none of which even involved a broadband provider!
While the repeal of the 2015 net neutrality rules and the abdication of the FCC’s authority over broadband has only been effective for a short time, we’ve already seen the damage. Last month, as part of the lawsuit against the FCC’s net neutrality repeal, the Fire Chief of the Santa Clara County Central Fire Department submitted an affidavit alleging that for eight months and despite numerous complaints, Verizon continued to throttle the Fire Department’s broadband service, which they used to coordinate responses to major emergencies, including the Mendocino Complex fire, the largest in California history. It wasn’t until the Fire Department agreed to pay Verizon more than double of what they paid previously that their broadband was no longer slowed to dial-up speeds.
The story here is not that the repealed 2015 net neutrality rules were violated when the Fire Department’s broadband was throttled – it appears that the Fire Department burned through the data they paid for and as a result their speeds were slowed down. Instead, the problem is that for eight months, the Fire Department had no recourse against Verizon. The newly freed-from-responsibility FCC wouldn’t resolve their complaint, and so long as Verizon was clear about what the Fire Department was buying, neither would the FTC.
I find it telling that in the aftermath of this incident, which threatened life, limb and property, neither the FCC nor the FTC made any public statement. Neither claimed that if only the Fire Department brought the matter to their agencies, it could have been resolved. Their silence is deafening, and an admission that the FCC’s December decision has created a dangerous gap in oversight.
I’m reminded of what Joni Mitchell sang in Big Yellow Taxi: “Don’t it always seem to go, that you don’t know what you’ve got til it’s gone….” While the FCC isn’t gone (yet, anyway), its leadership greatly diminished the agency’s ability to do its job, and my sense is that it isn’t finished doing so – witness Pai’s transparent attempt to destroy the Lifeline program. I fear that what happened in Santa Clara won’t be the last time we’ll miss having a fully empowered FCC with strong independent leadership ensuring that consumers come first.
I don’t like to finish my speeches on a sour note, and people inevitably ask me “[w]hat can I do?” Call your member of Congress. Vote in November and in every local, state and federal election. Recent polling has shown that a majority of voters will choose candidates based on their position on net neutrality, and policymakers know that their constituents are sick of slow, non-competitive and high-priced broadband. So while your call or vote won’t make immediate change at the FCC, new and stronger Congressional oversight could make it much more difficult for the agency to weaken its protections for consumers and competition. Right now, that oversight is nonexistent.
Despite the events of the past 18 months, I’m able to get up every morning because I know that inevitably the pendulum will swing back. All I need is for good people like you to help me give it a push! Thank you.