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Multiple sources indicate the FCC is on path to include in its final proposed AllVid set-top box order a de facto FCC office of copyright licensing to try and politically paper over obvious policy and enforcement gaps in FCC authority.

It is further evidence that the “Unlock the Box” proponents pushing AllVid are really bent on “unlocking the copyrights, licenses, and contracts” that collectively protect $200b worth of annual video programming business, not the purported $20b set-top box business.

That’s because AllVid proponents continue to demand their initial outrageous and unlawful claim that the FCC should force the pay TV and video programmer industries to give Big Internet companies their $200b of video programming flows for free -- because the Internet wants information to be free.

The FCC’s big legitimacy problem here is that the FCC is not operating in a legal area where they can argue they are due broad court deference, because in this instance the law is very clear.

The FCC does not have the authority to force property owners to give away their copyrighted property for free or to forfeit their legal licensing or contract rights.

The EU’s recent intense antitrust spotlight on Google can’t help but illuminate some of what EU antitrust authorities think about other dominant consumer technology platforms adjacent to Google -- i.e. Amazon, Facebook, and Apple – companies Europe collectively refers to as “GAFA” particularly in the context of the EU’s Digital Single Market strategy.

In 2011, Alphabet Chairman Eric Schmidt was the first to identify, and publicly bring attention to, these particular four dominant consumer technology companies “exploiting platform strategies” ironically by branding them the “gang of four.”

Are the FCC’s set-top-box proposed rules really about unlocking the set-top-box to competition or are they really about advancing Google and Public Knowledge’s real agenda – forced unlocking of the licensing and copyright protections of the underlying video programming that generates ~$200b in annual revenues?

In response to the FCC Chairman’s request for an alternative approach to the FCC’s current AllVid proposed rules, the Pay TV coalition has proposed an app-based solution that solves all of the FCC’s publicly-stated problems with cable set-top boxes.

The evidence increasingly proves that Google, Apple, Facebook, and Amazon, companies collectively known as “GAFA,” are the dominant consumer-technology, “edge” platforms/incumbents in their respective communication sector markets of: information, smartphones, social media, and ecommerce.

The evidence below shows Google, Apple, Facebook, and Amazon to clearly be the emerging dominant communications incumbents of the 21^st century communications sector ecosystem and that an apparent FCC assumption that “edge” companies cannot be a competition problem is both naïve and erroneous.   

Despite the FCC’s “competition, competition, competition” policy mantra, this GAFA dominance reality has not kept the FCC from slavishly favoring the dominant GAFA incumbents, as “insurgent” upstarts deserving of special FCC treatment and protection, in all of the FCC’s current major communications policy revamps it is making without Congress: i.e. its Title II Open Internet Order; its Title II ISP-only privacy rules; its AllVid set-top box rules; and its implicit wireless policy of favoring spectrum sharing and unlicensed spectrum over spectrum auctions and licensing. 

With due credit to "Ripley's Believe it or Not!^®,"so much odd and bizarre is happening at the FCC in the "name" of “privacy” that the topic calls for its own collection of: "Believe it or Not!^®" oddities.

Title II Privacy Proposed Rules

The FCC claims consumer privacy is important, but preempted existing FTC privacy regulation of broadband providers before they had any replacement privacy protections in place, so U.S. broadband consumers have been left without any federal privacy protection for over a year! 

Summary: It is rare for an FCC proceeding to be so wrong-headed and ill-conceived that it has seven huge flaws. Tellingly this one does.

1. The FCC is trying to force-fit inherently-irreconcilable, telephone closed-ecosystem privacy rules into its opposite -- a broadband open-system Internet.

2. This approach is so convoluted and confusing there is no way for an average consumer to understand what part of their privacy is or is not now protected by the FCC and what part is or is not protected by the FTC.

3. For privacy, the FCC’s Title II decision has been perversely subtractive in eliminating all FTC broadband consumer privacy protections, during the year-plus period while the FCC tries to figure out what FCC consumer privacy protections will be.  

The epic flaw in the FCC’s Title II privacy NPRM is that it purports to best protect consumers’ private information by only regulating broadband providers’ use of that private information, while emphatically protecting dominant edge platforms from FCC privacy regulation when they use that same FCC-regulated private information indiscriminately without consumers’ meaningful knowledge or consent.

Yes you read that right.

Apparently the FCC thinks it is more important to protect dominant edge platforms from FCC privacy regulation, than it is to protect consumers’ private information.

The issue of privacy lays bare the FCC’s contorted and arbitrary logic of both its Title II cleave that only ISPs can be gatekeepers, and that the goal of net neutrality, protecting dominant edge platforms from ISP interference, is logical and appropriate to apply to privacy. If it was, that would perversely mean that the purpose of the FCC’s privacy rules should be to protect edge providers’ businesses, not consumers’ privacy.  

If you want to see a visual representation of this problem, please see the attached one-page graphic here.

The FCC’s just-passed, 3-2 unequal ISP privacy policy spotlights how badly the FCC has lost its way.

In prioritizing the equality rights of inanimate digital bits above the equal protection and equal opportunity rights the American people enjoy under our constitutional republic, the FCC is discriminating in favor of open cronyism over equal consumer protection and equal competitive opportunity.

Moody’s Investors Service has done everyone a service in exposing the FCC’s Title II reclassification and privacy policy for what it really is – arbitrary unequal treatment under the law.

When the FCC proposed these ISP privacy rules three weeks ago, Moody’s called the FCC’s proposal as it saw it in a Sector Comment March 14 entitled: “FCC’s broadband privacy proposal credit negative for linear TV and wireless providers – Over half a trillion in rated debt affected.” 

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 21^st 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 21^st century communications provider, which commands well over a billion social and communications users globally, has to say about the dominance of edge platforms.

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.