The FCC’s New Subtractive Privacy Policy

Less is not more. That’s real “common sense.”

When one’s actions demonstrably create a worse rather than better outcome net-net, like the FCC’s new Title II ISP privacy policy does, others would justifiably consider it a mistake.

While the FCC obviously complied with President Obama’s call for regulating broadband as a Title II utility, the FCC obviously ignored President Obama’s 2011 call  for a 21st century regulatory system, where he said we are “making it our mission to root out regulations that conflict, that are not worth the cost, or are just plain dumb.”

Let’s consider how the FCC’s new privacy policy fails this President Obama stated standard for “modern” regulation.

When the FCC reclassified broadband to be a Title II telephone utility last year in its Open Internet Order, the FCC trumpeted one of the great net benefits would be increased consumer privacy protection.

The Apparent Androidopoly Antitrust Case

Few outside of Alphabet-Google understand the immense market, economic, and technological power of an unaccountable monopoly over the underlying software that controls most all mobile devices in the world. Fortunately EU antitrust enforcers are some of the few who understand it.

Android, Alphabet-Google’s licensable mobile operating system, is an apparent EU/global monopoly facing an apparent EU antitrust case in its future.

This analysis explains why Android is a monopoly for antitrust purposes; what the crux of the Android antitrust case is; and why such a case would enjoy a uniquely solid foundation. 

FCC’s Arbitrary Competition Policy -- Edge Platforms Can’t Be Gatekeepers?

Looking backwards makes it hard to see what’s right in front of you.

Looking backwards at 1934-era Title II telephone utility law, the FCC concluded in its 2015 Open Internet Order that only broadband providers could be “gatekeepers” warranting net neutrality regulation to “protect and promote the “virtuous cycle” that drives innovation and investment on the Internet.

That’s because the FCC is apparently oblivious to the very different 21st century communications “gatekeepers” right in front of them that command dramatically more potential “gatekeeper” market power than any broadband provider.

The FCC should listen to what one 21st century communications provider, which commands well over a billion social and communications users globally, has to say about the dominance of edge platforms.

Search + Android + Chrome = Google’s Gatekeeper Inner-net Regime

Wake up world, you’ve been disintermediated.

Google now essentially stands between you and most everyone and everything on the Internet.

Google’s dominant search engine + its dominant Android operating system (OS) + its world-leading Chrome web browser + its uniquely-comprehensive, Internet utility functionality of 193 products, services and tools = a virtual Google “Inner-net” regime.

Google’s Inner-net has practically assimilated most all of what the public open-source WorldWideWeb does for Internet users and much, much, more. And it also has practically insinuated Google-controlled code into a virtual intermediary position between most everyone and most everything on the Internet.

The FCC’s Googleopoly Gatekeeper Navigation Device Set-up

It’s the FCC-forcing-proprietary-video-to-be-free-to-Google stupid!

That’s a Jim Carville-esque paraphrase of the FCC’s AllVid commercial navigation device proposal to focus the mind.

The FCC spins its AllVid proposal as pro-competition in isolation when in reality the evidence will prove it profoundly anticompetitive overall.

Consumer Confusion over FCC’s Arbitrary Privacy Policymaking

What’s a consumer to think about what the FCC’s responsibility is for their privacy protection?

Let me try to explain to a consumer what the Federal Communications Commission (FCC) arbitrarily has done, and apparently intends to do, for consumer internet privacy protection going forward.    

By way of background, for the first decade of the Internet when consumers used dial-up technology, the FCC was responsible for protecting consumers’ private network information from commercial use without their permission.

For the second decade of the Internet when consumers came to use broadband technology, the FCC ceded its dial-up-Internet privacy protection authority to the Federal Trade Commission (FTC) which became responsible for consumer privacy protection from unfair and deceptive practices consistently across the entire American Internet ecosystem, regardless of who interacted with consumers’ private information.

Last spring, in order to assert legal authority to enforce net neutrality to protect edge providers from potential traffic discrimination in the FCC’s Open Internet Order, the FCC incidentally clawed back some privacy authority over Internet communications -- over the FTC’s strong objections.

~1 min Cleland video: Why We Need a Comm Act Update

Thanks to Mike Wendy of Media Freedom for capturing in this ~one minute video my "crispest answer" of why the 1934 Communications Act is in desperate need of modernization by Congress.

 

Questioning Google’s Extraordinary Influence over U.S. Government Decisions

Does the impartial administration of justice, the integrity of the U.S. Government, and the oath of all federal employees to support and defend the Constitution of the United States, require that private interests not be allowed to supplant the public interest?

Can “Bright Line” FCC Title II Discrimination Bans Be Just and Reasonable?

Net neutrality absolutists are overreaching yet again in their push for a practical FCC ban of ISP zero rating offers under the FCC’s case-by-case “General Conduct Standard” review, by claiming violations of the “bright-line rules” in the FCC’s 2015 Open Internet Order against blocking, throttling and paid prioritization.

The problem here is that net neutrality absolutists, in exploiting the political pejorative power of the word ‘discrimination,’ have politically oversold their Title II net neutrality policy as “bright-line” ‘non-discrimination’ bans, implying no discrimination allowed, when Title II actually only bans “unjust and unreasonable discrimination.”

This is a distinction here with a huge difference; and it apparently is giving the net neutrality absolutists fits. They want to imagine that Title II prohibits their absolutist ‘no discrimination’ frame when it clearly does not.

They want to find a technical “gotcha” in every zero-rating or sponsored data offering, no matter how unreasonable their conclusion, so they can politically ask it be banned by the FCC under their concept of what a ‘no discrimination’ principle should be.

Why Google Can’t Criticize EU Much for Ruling it Dominant & Anticompetitive

In the next several weeks, expect the EC’s Competition Directorate to decide that Google is in fact dominant with >90% share of Internet search in Europe and that Google has abused its search dominance by biasing its own Shopping service over competitors. It also could formally charge Google for abuse of its search dominance in contractually tying Google Search and other search-driven apps like Maps, YouTube, etc. to Android to extend its search dominance to mobile search and to the operating system market where Android now owns >80% share.

In taking a most extreme and ultimately indefensible legal and PR position, that the EU antitrust case is “wrong as a matter of fact, law and economics,” Google has painted itself into a corner, PR-wise and politically, much more than many appreciate. Why?

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Q&A One Pager Debunking Net Neutrality Myths