When digital mobile phone technology was first introduced in the US, electric wheelchairs began behaving erratically. The pulsing signal interfered with their controls. The solution: simple shielding to stop the interference.

When phones using the international GSM digital standard were first introduced in the US, hearing aids would buzz. The hearing aids, which had been designed for the analog world, were suddenly confronted by a new digital reality. The solution was once again updating the old way of doing things to recognize the new environment.

And if you want to talk life-and-death, how about pacemakers? Again, early in the digital phone era these life-savers could malfunction when hit by a cell phone signal. The short-term solution was for doctors to tell pacemaker patients not to carry their phone in the shirt pocket. Long term, shielding solved the problem.

These stories all come to mind as the Federal Aviation Administration (FAA) has objected to the Federal Communications Commission’s (FCC) authorization to use newly opened airwaves for 5G networks. Their concern is that the 5G signals could possibly interfere with the radio altimeters used in automated aircraft landings.

The 5G-aviation safety issue combines the two most important components of public policy decision-making: public safety and national security. No one can question the importance of the safety of passengers on commercial and private aircraft. Similarly, everyone recognizes that the United States is in a technological horse race with China, which has been able to reap the rewards of its embrace of 5G networks.

The Shared Spectrum Resource

The forward march of technology has once again tripped over the old way of doing things.

The airwaves (often referred to as “spectrum”) are a shared national resource that is subject to the pulls and tugs of changing technologies.

As these technologies change, the assumptions that previously governed the spectrum-based environment also change. What was an adequate product design in the earlier era—like the wheelchairs, pacemakers, and hearing aids—may require a redesign. Neither the device manufacturer nor the spectrum users were at fault. The device manufacturers built to the realities that existed when the product was designed. The new spectrum users were building into a new world without any intention of causing harm.

I was president of the wireless industry trade association CTIA during each of the earlier interference issues. I remember the surprise when the issues first developed. I recall the headlines and the emotion. I remember how some companies tried to profit from the problem.

Years later, I was Chairman of the FCC, and know the agency’s responsibility to protect consumers while keeping the United States at the forefront in wireless applications and services. I also recall how the FCC was constantly being called upon to play referee between various users of spectrum, and how easy it was to allege “interference” as a competitive strategy or a financial tactic.

From both those experiences, I learned that the challenges created by technological change can be solved if people of good will leave their respective corners and PR campaigns, and instead come together in a shared commitment to a solution. Beyond the issue of goodwill, however, is the need for federal leadership. Such leadership in the form of a national spectrum policy was notably absent during the Trump administration.

A Lack of Leadership

The airwaves are a shared national resource and exist in an environment of continual technological change and marketplace development. As a result, the federal government must have a set of underlying policies to guide the difficult and highly technical decisions about spectrum allocation and its ultimate effects on incumbent as well as new users. Unfortunately, the Trump administration had no such unified spectrum policy; as a result, policy ended up being made by individual agencies.

Less than 14 months after President Obama took office, his administration produced an integrated spectrum plan and broadband plan. It was not until 20 months into the Trump administration that there was even an attempt to create a national plan for spectrum usage. In October 2018, President Trump ordered the plan to be available in six months. But it never happened.

The Department of Commerce’s National Telecommunications and Information Administration (NTIA) is supposed to be the telecommunications advisor to the president. It was NTIA that was tasked with developing the national spectrum plan that never was. Unfortunately, and reportedly as a consequence of a spectrum dispute, the NTIA head was axed and the agency remained without a permanent leader for the last 20 months of the Trump administration.

The consequence of this absence in both framework and leadership meant there was no underlying rationale nor consistent team to adjudicate among the various spectrum claimants. This left government agencies free to advocate their own spectrum policies. In such a situation, it is only natural that the individual agencies would retreat into their comfort zones and view spectrum only within their parochial interests. No one ever wants to change the way things have always been done by revisiting the best use of spectrum. In the absence of White House leadership on a national policy, agencies such as the FAA, Department of Defense, and FCC quite naturally prioritized the interests of their own constituencies.

Avionics and 5G

The spectrum used by aeronautical navigation systems as well as so-called C-band wireless are internationally allocated. On the spectrum allocation chart, the aeronautical frequency allocation runs between 4.2 and 4.4 gigahertz (GHz). One of the key uses of the aeronautical allocation is the transmission of information to and from aircraft altimeters, especially when they operate below 2500 feet, to facilitate computer-assisted landings. Next to that allocation is the C-band spectrum used for 5G. In the U.S., C-Band use is authorized for between 3.7 and 3.98 GHz.

The airlines and associated industries are warning that 5G networks operating in the C-band “have the potential to cause harmful interference to radio altimeters.” Their concern is that the radios being used with the altimeter may not appropriately filter out signals lapping over from another part of the spectrum (called spurious emissions). In response, the FAA issued a Special Airworthiness Bulletin (SAIB) to airlines and pilots to “be prepared for the possibility that interference from 5G transmitters and other technology could cause certain safety equipment to malfunction.” The Canadian government responded by restricting C-band usage around airports.

Two words are central to the statements of the airlines and FAA. The airlines talk about the “potential” of interference. The FAA talks about the “possibility” of interference. Clearly, the safety of air traffic requires mitigating even the “potential” or “possibility” of problems. Yet clear heads are needed to separate what is only hypothetical possibility based on worst-case assumptions from what is highly probable based on real-world use.

This is where the spectrum management expertise of the FCC is essential. The FCC is the nation’s spectrum referee on commercial spectrum interference matters. As such, the agency’s engineers are used to constantly dealing with the evolution from one generation of spectrum-related technology to another. It is a challenge made all the more difficult by the need to balance the national interest in technological advancement with the private interest of manufacturers and users of equipment designed for another spectrum environment.

What Happened with 5G and Altimeters?

The 5G technology is built to exacting standards. There are no official altimeter standards. As the FCC was working on reallocating portions of the C-band to delivering 5G signals, the issue of potential interference to radio altimeters became a matter of great discussion. But there were no common altimeter standards to measure against.

The aviation industry submitted a study by the Aerospace Vehicle Systems Institute (AVSI) that simulated worst-case 5G signal emission and its impact on avionics. The FCC’s analysis of the AVSI study found, “there may be a large variation in radio altimeter receiver performance between different manufacturers.” In other words, some altimeters were equipped with radio receivers with good filters to protect against spurious emissions, while others allowed signals from outside the 4.2 to 4.4 GHz allocation to intrude.

A 5G proponent, T-Mobile, submitted a study by Alion, an engineering firm critiquing the AVSI study. This analysis found the assumptions used in the study to be extreme, thus leading to extreme conclusions. In addition, the Alion analysis concluded, two of the test altimeters had failed “due to interference from other altimeters,” not 5G interference. After reviewing this study, AVSI told the FCC “further analysis is required to consider more sophisticated propagation models.”

The FCC’s Report and Order making the C-band available for 5G directly addressed this issue. The FCC engineers concluded the “AVSI study does not demonstrate that harmful interference would likely result under reasonable scenarios” or even “reasonably ‘foreseeable’ scenarios.”  The FCC encouraged the aviation industry “to take account of the RF [radio frequency] environment that is evolving.” In other words—like wheelchairs, pacemakers, and hearing aids— to recognize that what was “good enough” design in a previous spectrum environment could be affected by the new environment.

Nevertheless, the FCC created a guard band between the 5G spectrum and the avionics spectrum in which 5G was forbidden. Boeing, in a filing with the FCC, had proposed just such a solution. The Boeing proposal was to prohibit 5G “within the 4.1-4.2 GHz portion of the band.” The FCC agreed and then doubled the size of Boeing’s proposed guard band to a 220 MHz interference buffer between the upper 5G usage at 3.98 GHz, and avionics usage at 4.2 GHz.

When the FAA issued its bulletin, the 5G industry pulled back the C-band launch. Originally planned for December 5, the launch of service in the new spectrum was postponed by 30 days.

The aviation industry, in a letter to the White House National Economic Council (NEC), has pledged to work diligently “to develop new standards, equipment, and aircraft/helicopter integration solutions.” Interestingly, according to a Reuters report, the White House “reviewed the FAA safety bulletin before it was cleared for release.”

Next Steps

The resolution of this issue should not be a drawn-out process. The Biden White House is now involved and should be the driving force. Acting quickly to convene the parties is an important step to keep them from retreating into their own corners. The White House should take the aviation industry up on its pledge to “develop new standards.”

The working group should have a tight deadline to report its conclusions and be true to its name: a working group, not a study group, nor a debating society. The physics involved in this situation are well known. The mitigation techniques are well known. The standard-setting process is well known. The importance of getting 5G up and running while protecting flyers is well known.

The Biden administration has prided itself on being science-based. The science here is pretty clear—it is hard to repeal the laws of physics. The real politick of this comes down to the costs of fixing the altimeters, just like the wheelchairs, hearing aids, and pacemakers were fixed. As the FCC engineers concluded, “well-designed equipment should not ordinarily receive any significant interference (let alone harmful interference).”

Let’s hope this is more than a gambit to hold 5G hostage to get someone to pay to fix the problem altimeters. There are only three sources of such funds for the aviation industry. The government could pay out of the almost $82 billion generated by the sale of licenses to use the C-band; that would probably require an act of Congress. The wireless industry could pay an additional tariff on top of the billions already spent for spectrum the government said would be ready for use on December 5. The aviation industry, having known for some time of the new 5G allocation, could pay to fix the offending altimeters.

More generally, this brouhaha also highlights one more area where the Biden administration needs to repair what was left behind by the Trump administration: the lack of a spectrum plan for the nation. The 21^st century will be the wireless century. Already work is underway on 6G. The use of the spectrum necessary for the connecting pathway of the new era requires a going in strategy rather than a policy that distributes policymaking on an ad hoc basis.

T-Mobile is a general, unrestricted donor to the Brookings Institution. The findings, interpretations, and conclusions posted in this piece are solely those of the author and not influenced by any donation.

      

Facebook whistleblower Frances Haugen’s testimony on the social media platform’s business practices may have been an eye-opened for members of Congress, says former FCC Chair Tom Wheeler, but this and other recent revelations are just the canary in the coal mine for the broader digital ecosystem. Wheeler points to a lack of government oversight that has left digital platforms to make their own rules, and what responses may be forthcoming from the Federal Trade Commission, the Department of Justice, and state-level actors.

Related material: 

• A focused federal agency is necessary to oversee Big Tech
• The court’s Facebook decision shows why we need a digital regulatory agency
• China’s new regulation of platforms: a message for American policymakers

Listen to Brookings podcasts here, on Apple or Google podcasts or on Spotify, send email feedback to bcp@brookings.edu, and follow us at @policypodcasts on Twitter.

Thanks to audio producer Gaston Reboredo, Chris McKenna, Fred Dews, and Marie Wilken for their support.

TRANSCRIPT

PITA: Last week, the U.S. Senate heard testimony from Facebook whistleblower Frances Haugen on the platform’s detrimental impact on children and young adults who use it. Questions about whether and how to moderate speech and content ranging from sensitive or misleading up to inflammatory and dangerous have grown in recent years, particularly around the 2020 election and the COVID-19 pandemic. So we’re glad to have with us today Tom Wheeler, visiting fellow with the Center for Technology Innovation here at Brookings, and the former chair of the FCC during the Obama administration. Tom, thanks for talking to us.

WHEELER: Adrianna, it’s great to be with you again.

PITA: So, in addition to Frances Haugen’s testimony, there has also been reports of a second whistleblower willing to testify regarding foreign national leaders’ manipulation of the Facebook platform. The Intercept published an internal list of banned or heavily restricted subjects, individuals and organizations that Facebook uses. So, Facebook’s not having a great week. This is on top of the massive system outage a couple weeks ago.

So, maybe you can start us off with what did the Senate hear from the whistleblower last week and where does her testimony in the context of this larger conversation about misinformation and free speech on social media platforms?

WHEELER: Well, you know, Adrianna, I think that what the Senate heard was a new context and an explanation for that context. The new context was to talk about the impact of Facebook’s business practices on consumers and specifically to single out the impact on children. Start talking about children and you get everybody’s attention, and you avoid a lot of the partisan “well I see it from this side,” “I see it from that side;” You talk about kids and everybody tends to see things in a much more similar way.

But then the context that she put that into was to talk about the business model at Facebook. And that the reason that these kinds of harmful things were happening was because of a business model that prioritizes engagement over responsibility, that is designed to get as many people to stay as long as possible on the platform in order that Facebook can then sell as many advertisements as possible to those people.

And she was very explicit in her statement that the priority is revenue generation, not the consequences of what may be being sent out. And that was, I think, an eye-opener for many of the people in the Congress and in the public that were listening.

PITA: Facebook and Twitter have been around for a few years now, but digital communication does change so rapidly, that market and the technology. And federal policy is famously pretty slow to take shape and to take effect, partly because of the processes, partially because of ignorance on the part of a lot of lawmakers on these issues. So talk to us a little bit about what sort of response would you like to see? What would an effective federal regulatory policy look like around some of these issues of business models and content, and these issues that have come up?

WHEELER: So the challenge, Adrianna, is how does government oversight become as agile as technology enables product creation to be? And where we have been on this, thus far, is that because of a lack of government oversight, we have been allowing the companies to make the rules, in essence to become pseudo-governments themselves, and to do that without concern for the consequences. What are the effects of their actions? What we need to have is a sense of agility in oversight that replicates the agility the digital technology creates for the ability to develop new products.

Let me give you an example. The digital companies all move on standards. The standards process, saying this is how a technology will work, is a crucial process. We moved in mobile phones, for instance, from 1G to 2G to 3G to 4G to 5G and now they’re working on 6G as a technical standard that reflects the changes in technological capabilities, but nowhere along the line in any of the development of these standards was there consideration for, what are the consequences of this technical capability that we are standardizing?

So what we need to be doing is to be asking ourselves the question, how do we have regulation that has the same kind of agility, but it is standardizing for the effects, the consequences, the behaviors, rather than the technology. And the proposal that myself and several others have made is that what we need to have is a process that takes and mirrors that technology standardization through a multi-stakeholder process, but brings the government into it to say, okay here are the kind of behavioral standards that need to be in place. We’ll be at the table while these get worked out and they can be flexible, over time, and then we will enforce those standards.

PITA: You said that the platforms have largely been left alone to do their own governing, to do their own policing, setting their own standards. Is there a place in a more agile regulatory framework for the kinds of self-regulation, like, for instance, Facebook’s Oversight Board? Can those be effective, or those always going to be suspect because they’re the product of the company itself?

WHEELER: Well, you know I don’t want to throw cold water on efforts to do the right thing, but it is unclear whether things like the Oversight Board have delivered much beyond being a public relations shield. The strategy at Facebook and other places seems to be one of, well, let us beg forgiveness, do a little bit, but not really compromise the cash cow that is this business model that is based on engagement and whatever it takes to keep the user connected for as long as possible.

PITA: So Haugen is going to also be testifying before the British Parliament later this month. What sort of role is there for international coordination on these issues? Is that necessary? Are there mechanisms and dialogues sort of already in place on these issues? What does that look like?

WHEELER: It’s a huge issue. The internet is a series of interconnected networks that don’t understand the lines that have been arbitrarily drawn on a map to say no, this is my country, this is your country kind of a situation. So the reality is that the rules that exist in one nation end up having an impact in other nations as well. And this is one of the real problems that I think will become increasingly apparent: that results from the failure of the United States government to step up and say this is how we envision regulatory oversight for these platforms, that the U.S. is behind what the European Union, the U.K. are doing to establish what, because of the interconnected nature of the Internet, ultimately become international norms.

Give you one example. We have been talking forever in this country about privacy rules for the Internet. But the companies have been able to successfully block any legislation. The European Union came out with what they call the GDPR, the General Data Protection Regulation. And when California, in the United States, decided they weren’t going to wait for the Congress and passed their own privacy law, what did they base it on? The GDPR and what the EU has done. So we are in a situation where instead of de jure deciding our own marketplace policies for the digital platforms, we are de facto defaulting to other nations’. And those countries might have different standards than we do. I mean, for instance, the EU and the U.K. see free speech much differently than we do. They see competition issues much differently than we do. And our absence from the field, our failure as a government to step up and do anything about these new digital platforms has left the regulatory field wide open to other nations who just might have decisions being made on other priorities.

PITA: So these sorts of conversations, these questions about updating many aspects of internet and digital communications-related regulations have been around for several years. You mentioned at the top that you think that Haugen’s testimony will have a real impact because when it comes to kids that really gets people’s attention. So do you feel like we might maybe be at sort of a tipping point where we might finally see some congressional action on this issue?

WHEELER: Well, I hope so, okay? And I also think that the Facebook stories – and, as you suggest, there appear to be more to come – are the canary in the coal mine for the broader digital platform space. That, yes, Facebook is taking it on the chin these days, often deservedly so, but it doesn’t mean that the other platforms end up getting a free pass.

I think we’re going to see multiple forms of legal responses to what we’ve been learning. First, obviously, is regulation. And Lina Khan, the chairwoman of the Federal Trade Commission, has been very out front in in speaking about these things. We are going to see increased anti-trust enforcement, not only from the Justice Department and the FTC, but from state attorneys general. I think we’re also going to see some new legal action by both state attorneys general as well as private lawyers, representing private litigants, on the consumer harms that Frances Haugen laid out. And we’ll see some private actions in that regard.

We’ve talked about legislation. The legislative process is a long and arduous process. I hope we end up with some legislation that creates meaningful oversight; hopefully, a new digital platform agency. But then the other part about it is that, as we discussed a minute ago, the rest of the world is not sitting idly by and waiting for us to make some kind of decision. By our inaction, thus far, we have abrogated international leadership, and so I think it will be a laundry list of those five things all working simultaneously, if not in concert, to redefine what the future ends up looking like.

PITA: All right. Tom, thanks so much for talking to us and explaining this today.

WHEELER: Adrianna, thank you.

      

Facebook founder and CEO Mark Zuckerberg told listeners to his July 2021 quarterly earnings call that “I expect people will transition from seeing us as a social-media company to seeing us as a metaverse company.” A few weeks later, the business plan had morphed into a political plan and the Washington Post headlined, “How Facebook’s ‘metaverse’ became a political strategy in Washington.” “[T]he metaverse is already a full-on political push,” the article explained, with the goal to position the company “far from the controversies of social media”, such as privacy, antitrust, content moderation, and political extremism.

But Zuckerberg is wrong. Far from pushing today’s online problems off the front page, the metaverse heightens our challenges. Issues such as personal privacy, marketplace competition, and misinformation only become greater challenges in the metaverse due to the interconnectedness of that phenomenon. Rather than being distracted by the shiny new bauble, policymakers need to focus on the underlying problems of the digital revolution, which won’t go away with new technological developments.

Just what is this “metaverse”? Today’s online activity can be described as a 2D experience; the metaverse is a 3D experience that can utilize augmented reality (AR), virtual reality (VR), and persistent connections to create an immersive world. Rather than spending 20-30 minutes a day moving among apps, users spend hours in much more realistic activities. As Zuckerberg explained, “you can think about this [the metaverse] as an embodied internet that you are inside of rather than just looking at.”

Facebook “is meeting with think tanks to discuss the creation of standards and protocols for the coming virtual world,” the Post reports. Standards to define technical functionality have long been the backbone of the internet. Unfortunately, those technical rules seldom addressed behavioral effects of the technology.

The threshold question is whether the new quest for standards is more than a strategic deflection from a company beleaguered by regulatory and judicial attacks and weakening support from the general public.

Facebook was built on the demolition of standards—that is what its original motto, “move fast and break things” was all about. The things being broken weren’t physical objects, but the practices that had provided social and economic stability for over a century. Such a breaking of preexisting norms has historically been the path to advances in science, business, and the arts. What is significant about the digital rule-breaking is both the wonder of its innovative new products as well as how those products were implemented without regard to the consequences being created.

In response to the negative fallout from the actions of Facebook as well other digital giants, Facebook launched an advertising campaign that must have cost tens-of-millions of dollars. “Facebook supports updated regulation” the campaign proclaims. If “move fast and break things” destroyed accepted behavioral standards, the advertising is proposing watered-down standards defined in ways so as to not adversely affect Facebook’s business.

The firm deserves credit for at least enumerating ideas at a time when the other digital giants have not been as explicit. The new effort to define standards should also not be dismissed. However, because the new metaverse will be constructed upon much of the “old” online universe, any metaverse policy effort must begin with meaningful rules for what exists now.

The seminal asset, and thus the seminal issue, in the digital era is access to—and control of—personal information. In the current online world, the digital companies have siphoned personal information and then stored, manipulated, and repackaged that data in order to sell access to targeted users. If the metaverse is moving to a persistent pseudo-world, then the amount of data collected will be immense, as will the opportunity to monetize that data. “I think digital goods and creators are just going to be huge,” Zuckerberg explained. Facebook plans to focus on the sale of virtual goods, which like advertising, will require the collection and exploitation of personal data.

Control of data also permits control of markets. After capturing personal information, the digital companies’ next step is to build a moat around it to deny access to others. The Federal Trade Commission’s (FTC) antitrust suit against Facebook describes a “buy-or-bury” strategy it alleges to be illegal. By using cash (or stock) generated from the high-margin exploitation of personal data, it is possible to remove a potential competitor via acquisition. If acquiring a competitor doesn’t work, then the company can simply crush the competition by denying it the data necessary to compete with a copycat service built on the incumbent’s data hoard. The opening advantage in the metaverse will go to those with the data to make the new virtual activities relevant to the user. The result is no different from the present online world in which those with the data hoard it to control the market.

Insofar as the dissemination of hate and lies, tech journalist Casey Newton’s interview with Mark Zuckerberg about his metaverse vision was revealing. Newton asked, “Who gets to augment reality?” He imagined “a world where we’re all wearing our headsets, and we’re looking at the U.S. Capitol building…most of us have an overlay that says, ‘This is the building where Congress works’…[but] some people might see an overlay that says, ‘on January 6, 2021, our glorious revolution began.’” Zuckerberg responded that this “is one of the central questions of our time.” “In order to have a cohesive society,” he explained, “you want to have a shared foundation of values and some understanding of the world and the problems we all face together.”

The current iteration of Facebook with its algorithms to promote engagement-driven revenue fall far from that goal. Instead of a “shared foundation” that brings us together, the way the Facebook algorithms are programmed does just the opposite. Since maximizing user time on the site maximizes the number of advertisements that can be sold, the algorithms are programmed to maximize engagement. This means the algorithms send to each user news that is in line with their pre-established views, not news that creates a “shared foundation.” Even worse, is that one of the best ways to hold engagement is to create conflict and outrage, regardless of the veracity of the claim.

Which brings us back to standards. The development of government-overseen behavioral standards protected consumer, workers, and competition in the industrial revolution—while simultaneously enabling a vibrant and growing economy. The digital revolution requires similar government-overseen standards. It is good that Facebook is discussing behavioral standards for the metaverse, but it is not sufficient. We must not be distracted by the shiny new metaverse and forget that we have yet to resolve the challenges in the current online universe—problems that will simply metastasize into the metaverse if we don’t deal with them now.

Facebook is a general, unrestricted donor to the Brookings Institution. The findings, interpretations, and conclusions posted in this piece are solely those of the author and not influenced by any donation.

      

The announcement of Facebook’s Ray-Ban Stories glasses that capture audio and video is a technological triumph that adds yet another facet to the debate over the protection of personal privacy. While the product is new, the issues it raises are over a century old.

Google Glass was the first effort at commonly-available image capturing eyewear. I recall when, in 2014, the doors to the elevator I was riding opened and in stepped a young man wearing Google Glass. The unique-looking glasses were a giveaway. Fellow elevator passengers were a mix of wonder and wariness. I asked, “Are you shooting us now?” With a bit of an attitude, the reply was, “You got a problem with that?”

Though an innovative idea at the time, Google Glass soon became just an interesting idea. It continued in some enterprise applications, but was not yet ready for prime time. Facebook’s new Ray-Ban Stories glasses appear to have overcome Google’s earlier problems: the devices are priced at about one-fifth of Google Glass, and look like the Ray-Bans Tom Cruise made famous in the movies. Back then on the elevator, we knew something atypical was afoot because of the geeky appearance of Google Glass. Tom Cruise cool, however, is another matter.

Without a doubt, the Facebook Ray-Ban technology is impressive: two 5-megapixel cameras, three microphones, four gigabytes of storage, and contained not in a bulky or Star Trek-looking device, but in a simple pair of undistinguishable Ray-Bans. Simply tap the shades and the audio or video is captured. The addition of a small LED on the Ray-Ban Stories frame is supposed to let people know they’re being recorded. The product’s website reassuringly proclaims, “Designed for privacy, controlled by you.” The privacy issue, however, is not just about “you” as the picture-taker, but also “them,” those being snapped and recorded. That the secret snapping is associated with Facebook, a company not known for its respect of personal privacy, is not reassuring.

The Evolution of Privacy

This is not the first time the issue of personal privacy and covert photography has arisen. That history is illustrative of the evolving interpretation of what constitutes privacy. In the late 19th century George Eastman developed the Kodak mass-market portable camera. It set off howls of concern. Suddenly, everyone could have had in their hands the ability to capture anyone else’s images and actions without the other person’s knowledge or permission.

No less a legal scholar than Louis Brandeis, who would go on to become one of the great Supreme Court justices, responded to the new Kodak with a law review article entitled The Right to Privacy. “Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing for the individual…the right ‘to be left alone,’” Brandeis and Samuel Warren wrote for the Harvard Law Review. The article went on to warn that, “numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”

Brandeis’ analysis seems quaint today when smartphones generate over a billion photographs daily. But replace his term “mechanical devices” with “digital devices” and “whispering in the closet” with the ability to photograph and record the conversations in an elevator without permission and to store and manipulate that information and the result is a brave new world.

The Digital Conundrum

Ray-Ban Stories illustrates the conundrum of the digital era: how the exponential growth in technological capabilities stretches the linear thinking of humans and their institutions—a topic explored in a new book, The Exponential Age, by Azeem Azhar. To become a modern-day Luddite is clearly not the answer. But neither is rolling over and not considering the consequences of the new developments. The issue is not repealing the digital revolution, but the establishment of public interest guardrails for its behavioral results.

The amazing technology of the new glasses is a classic example of how digital entrepreneurs think. The question “can we build it?” supersedes asking, “what are the consequences if we build it and how can they be mitigated?” Facebook appears to have anticipated the need to address the privacy issue as a part of its product rollout, but the issues raised call for more than public relations.

To Facebook’s credit, their Responsible Innovation Principles profess a commitment to “building inclusive, privacy-centric products.” The principles, however, push such responsibility off on the users. Principle 1 is “Never surprise people;” while being “transparent about how our products work and the data they collect” is a worthwhile goal, it does not prevent an unwanted surprise in the elevator. Principle 2 is “Provide controls that matter,” that “put people in charge of their experience,” which in this case appears to be the LED warning light. Principle 3 is “Consider everyone,” specifically, “we also need to consider people who aren’t using our products.” Principle 4 is “Put people first,” and is defined as being “responsible stewards of people’s data.”

Just what do the words in the last principle mean? “[W]e treat it [personal data] with the sensitivity it deserves…[and] take precautions with particularly personal types of data” is the explanation. Beyond the lofty words, however, what will be done with the data that can be secretly collected?

We have all experienced how Facebook and others harnessed the Web to siphon away our personal information – both virtual and physical – even when we are not using the product. Now comes the ability to have wandering collectors of data feed information into Facebook’s servers. To their credit, the company has said they will not use the data created by the glasses for its more traditional aggregation and targeting activities. The digital images and audio captured by the glasses are stored on the device rather than automatically uploaded to Facebook. The wearer makes the offload decision, but once made, the data still ends up in Facebook’s server when the user loads it on an app tied to that user’s Facebook account.

“We take your privacy and security seriously,” the glasses’ website promises. Well, at least they’re talking about it. But this, of course, is the same company that in 2014 promised regulators it would run WhatsApp as a separate company, segregating and protecting consumer data, then—acting unilaterally in 2021—did just the opposite. This is a company whose business model is built on the use of personal information.

Beyond Brandeis

This does not mean some kind of heavy-handed regulation; but it does mean more than allowing the technologists to unilaterally make the rules.

In the 20th century we moved beyond Brandeis’ fears about cameras. The 21st century, however, opens a whole new set of issues around the use of personal data. Facebook makes clear that the glasses are the entry gateway to augmented reality, describing them as “first-generation smart glasses.” We know what is coming: augmented reality and virtual reality.

Rather than repeating what was experienced with the Web—awakening after the horse has left the barn—we should today be establishing policies for the use of the data that is created by the even newer technologies. This does not mean some kind of heavy-handed regulation; but it does mean more than allowing the technologists to unilaterally make the rules.

The internet’s ability to spy on users caught everyone off guard in its early iteration. Facebook’s Ray-Ban Stories glasses now provide the opportunity to get in front of the issue of next-generation wearable technology. It is commendable that companies such as Facebook say they will be sensitive to personal privacy issues—but it is not sufficient. We have seen how companies’ “privacy policies” are less about privacy protection and more about invading a user’s privacy.

Let’s take Facebook (and others) at their word about protecting individual privacy and develop federally enforceable behavioral standards for the use of the data that is created as we use these amazing new products.

Facebook and Google are general, unrestricted donors to the Brookings Institution. The findings, interpretations, and conclusions posted in this piece are solely those of the author and not influenced by any donation.

      

At a time when the United States and its Western allies are struggling to determine the proper oversight of digital platform companies, the Chinese government is moving decisively ahead with its own plan. That China has designed regulations for these digital platform companies to stimulate competition and innovation should send a message to Western policymakers.

The new policies—ranging from competition enforcement to opening corporate data hoards—are an exercise of raw autocratic power. Apparently, one reason for the action is preservation of that power against the growing strength of the platform companies and their charismatic leaders. Another rationale for the move, however, is that the new enforcement will make Chinese digital platform companies more competitive and stimulate innovation.

Deflating Anti-Regulation Rhetoric

American digital platform companies, such as Facebook and Google, have long argued that regulation would not only put the U.S. at a competitive marketplace disadvantage to China, but a national security disadvantage as well. Sheryl Sandberg, Facebook’s chief operating officer, played the “competition with China” card when she told CNBC, “[w]hile people are concerned with the size and power of tech companies, there’s also concern in the United States with the size and power of Chinese companies, and the realization that these companies are not going to be broken up.”

Given this supposed “realization,” it is significant that the Chinese government itself has punctured that myth by reining in digital platform giants. “There have been over 50 regulatory actions against scores of [Chinese] firms for a dizzying array of alleged offenses, from antitrust abuses to data violations,” The Economist reported.

Google CEO Sundar Pichai has promoted the supposed national security argument against regulation. He told CNN, “I worry that if you regulate for the sake of regulating, it has lots of unintended consequences…[including] implications for our national security.” Of course, no one advocating for oversight of digital platform companies has suggested regulation simply “for the sake of regulation,” but for the protection of consumers and marketplace competition. And the fact-of-the-matter is that a competitive marketplace drives innovation (and national security) better than a monopoly.

“Big Tech” Moniker is Misleading

The moniker “Big Tech,” which is frequently applied to digital platform companies, has helped perpetuate an American policy misconception that the consumer-market dominance of digital platform companies is essential to their ability to innovate in ways beneficial to national security.

China’s actions seem to be built on a contrary recognition: that there is a difference between “consumer tech” innovation that produces new consumer-facing services and the “deep tech” cutting edge innovation needed for national security. These “Big Tech” businesses are first and foremost consumer-facing companies whose principal activity is to pair information gathered from users with targeting sought by advertisers.

They may be technology companies insofar as they use technology such as the internet, the Internet Protocol suite standards, microchips, and other relevant technologies—most of which were developed by others (and often at taxpayer expense). While these companies have undoubtedly innovated to aid their activities, that doesn’t mean their development has either been done for—or is integral to—national security. Self-driving cars and new algorithms may have a tangential impact on national security, but the companies are developing them for their own purposes. In fact, their fiduciary responsibility to shareholders focuses such development on capabilities that further the interests of the company, not the country.[1] Social media, search, and commerce platforms are simply not a substitute for focused national security research and development.

Until the Chinese government’s recent action, these American companies loved to point to China as a bogeyman to justify their actions. “Mark Zuckerberg says breaking up Facebook would pave the way for China’s tech companies to dominate,” was the headline from his interview in Recode. Now, not only is China “breaking up” companies, but it is also “breaking open” the data hoards that made those companies dominant in the first place. Chinese companies will be required to share the data they have gathered. The Chinese state will have access to that data, but apparently so will companies that can use it for competitive purposes or for innovative development beyond the platforms’ purposes.

China’s State Administration for Market Regulation (SAMR) has also proposed additional regulations, including prohibiting the use of “data, algorithms and other technical means” to influence user behavior or “hijack traffic, interfere or impose barriers” to the operation of other internet services. Just how such broad, ill-defined, and seemingly open-ended language is enforced remains to be seen, but it certainly would seem to open the door to aggressive intervention, should the government decide.

China’s actions could be described as “progressively autocratic” in that they adopt many of the market oversight policy suggestions made by progressives in Western democracies in proposals such as the EU’s Digital Markets Act and Digital Services Act. Make no mistake, the actions of the Chinese government are far removed from the processes of liberal democracies. Yet, China’s recognition that the anti-competitive and anti-consumer actions of their dominant digital platform companies do not have to be condoned because they are driving cutting-edge technological developments should be an eye-opener for Western democracies.

A Western Democratic Alternative

Consumer-facing platform companies on both sides of the Pacific have amassed huge amounts of personal data about individual citizens. “Right now, we have two versions of the internet,” Harvard’s Shoshana Zuboff explains, “a market-led capitalist version based on surveillance, which is exploitative; and an authoritarian version also based on surveillance.”

As the Chinese government utilizes the internet for non-democratic purposes, the question Zuboff asks is, “will Europe and North America pull together to construct the legal and technological frameworks for a democratic alternative?”

Such a democratic alternative begins with asserting the legitimate role of the government to protect the public interest. Because the U.S. government has failed to establish independent oversight of the platforms, digital platform companies have been able to act like pseudo-governments to create and impose policies which naturally benefit themselves. The introduction of a countervailing power to balance the control of these companies is essential – and can only be done through government oversight.

The decision-making process of liberal democracies is certainly more open, deliberative, and time-consuming than in China. As the United States and other Western governments move through that process, however, China’s recognition that reining in unsupervised consumer-facing monopolies not only promotes consumer welfare, but also technological advancement in support of national security is an important data point.

Facebook and Google are general, unrestricted donors to the Brookings Institution. The findings, interpretations, and conclusions posted in this piece are solely those of the author and not influenced by any donation.

1. See page 10 of Alphabet’s recent earnings report Q&A for an illustration.

      

In her new book, “Saving the News: Why the Constitution Calls for Government Action to Preserve Freedom of Speech,” Martha Minow highlights how the government has helped shape the media from the printing press to the internet, and why the state of our current political discourse warrants further government action.

On July 29, Minow was joined by Brookings Senior Fellow E.J. Dionne Jr. and Visiting Fellow Tom Wheeler for a discussion on the book and the future of the news in the United States. Speakers explored the role of government in media, the nuances of the First Amendment, and potential reforms.

Viewers submitted questions for speakers by emailing events@brookings.edu or via Twitter at @BrookingsGov by using #SavingTheNews.

Click here to purchase a copy of “Saving the News.”

      

A federal district court judge’s dismissal of the Federal Trade Commission’s antitrust lawsuit brought against Facebook is graphic evidence that antitrust laws are not sufficient to protect consumers and competition in the digital age. We need a regulatory plan that is more agile and timely than relying on antitrust enforcement as the principal solution.

Yes, antitrust enforcement is important, but it is not the panacea for all the abuses in the digital marketplace. There are three reasons why solely relying on antitrust solutions is a mistake. First, it is backward-looking and after-the-fact. Second, enforcement focuses on a specific occurrence rather than creating a general set of behavioral expectations for dominant digital companies. Third, it is slow, uncertain, and has been systematically diminished by 40 years of conservative court decisions. Taken together, these factors explain why current efforts are completely inadequate.

Antitrust law is written to stop ongoing abuses. This means that it must wait for the harm to occur. The Facebook acquisitions of Instagram in 2012 and WhatsApp in 2014 had been taking their toll on the competitive market for years before the government finally felt they had enough examples of abuses to bring a case.

No wonder that, on the day of the court’s decision, Facebook’s market capitalization soared to over one trillion dollars—a record for the firm. The message was clear: because antitrust enforcement is problematic, it is possible to profit from abusive behavior for a long time before there is a basis for action—and even then, the ability to stop the activity is illusive.

Antitrust law focuses more on harm to competition than harm to consumers. As such, it is insufficient to address all the abuses emanating from Facebook and its fellow digital platform companies. Antitrust cannot reach how the companies have stolen and then sold access to our personal data. The flood of misinformation and hate flowing through the digital platforms is a behavioral problem beyond the scope of antitrust laws.

The digital companies have made their own rules because the government has failed to define acceptable digital behavior. Antitrust actions are specific law enforcement decisions affecting one company regarding one set of activities. What we need from government is regulatory oversight to establish broad behavioral expectations for the digital giants. Absent such behavioral rules, the digital platform companies will continue to prioritize their own private interests over the broader public interest.

Antitrust enforcement is reliably slow, uncertain, and reactive. The antitrust cases brought by the Department of Justice and state attorneys general against Google, for instance, have been scheduled for trial in September 2023—three years after being filed. Because there may be no final antitrust decision until the Supreme Court rules, a final resolution could be delayed until 2026. During this half-decade period of litigation, the company will be free to continue the abusive practices being challenged.

Make no mistake, antitrust enforcement is important, but we need something more. This is especially important when considering how since the Reagan era courts have consistently constrained the original force of the antitrust laws. There is a need for regulatory oversight to establish behavioral rules applicable to all dominant providers of digital services. The best way to accomplish this is with a new federal agency unencumbered by the dogmas and dicta of the past, unburdened from the muscle memory created during oversight of the industrial economy, and focused solely on behavioral rules for the digital economy.

A handful of digital platform companies have become dominant because they recognized before the rest of us that the digital economy is different from the industrial economy. Government needs to embrace the same kind of digital realization. Yes, antitrust enforcement is important, but it is backward-looking, limited in impact and slow. Yes, the antitrust law updates being considered in Congress are important, but they too suffer from these limitations. Yes, effective regulators such as those recently appointed by President Biden are important, but even the most dedicated enforcer is still hindered by old statutes.

This cannot be a matter of bolting-on authority to an existing agency. American consumers and the American competitive marketplace need a new American digital regulatory policy implemented by a new digital agency. The European Union and United Kingdom are way ahead of American policymakers in their recognition of the new digital realities. America’s failure to act is squandering our nation’s traditional international policy leadership.

If the Congress is serious about the power of the digital giants, calling for antitrust enforcement is not sufficient. It is time for looking beyond the increasingly anti-enforcement courts to solve our problems. Regulatory agencies helped to deliver the stability and growth of the industrial era; the time has come for regulatory oversight of the digital era.

Facebook and Google are general, unrestricted donors to the Brookings Institution. The findings, interpretations and conclusions in this piece are solely those of the author and not influenced by any donation.

      

One of the lessons of COVID-19 was the need for speed in digital broadband connections. As more and more members of a household were online simultaneously doing schoolwork or working from home, the need for bandwidth increased. An August 2020 survey found that almost a quarter of broadband households planned to upgrade to higher speeds. It is for these, and many other reasons, that the broadband infrastructure program being considered by Congress must prioritize spending public funds for high-speed service, not simply good-enough service.

At a time when commercial broadband companies are investing private money in upgrading their networks to mega-high-speed broadband deployment, it is foolhardy for the government to spend public money for second class service. At a time when the nation is finally moving beyond talking about the digital divide to actually doing something about the problem, it is illogical to spend the taxpayers’ dollars for something that will only open the possibility of a “not good enough divide” as demand continues to rise.

Currently, an intense lobbying campaign is being conducted, especially by wireless and satellite network providers, to define digital down so that they may be able to sup at the federal funding trough. These companies want federal funds for their for-profit services, even if the services are slower in speed than what the market has demonstrated is necessary for broadband. A recent private report by J.P. Morgan found that 74 percent of Americans with access to broadband pay for speeds of at least 100 Mbps. By 2025, the report forecasts, that number will grow to 90 percent. If at least 100 Mbps is what the market is demanding, why would the federal government spend billions to build less than that in unserved areas? If almost a quarter of consumers are asking their providers for faster service, why should the government support something slow?

Newly introduced legislation by a bipartisan group of senators has recognized this reality. Their proposal should be an outline for the broadband initiative. Senators Michael Bennett (D-CO), Angus King (I-ME), and Rob Portman (R-OH) introduced the BRIDGE Act which defines broadband as a symmetrical service of 100 Mbps both into and out of the home. This compares to the current no longer adequate broadband definition established by the FCC in 2015 of 25 Mbps down to the home and 3 Mbps up out of the home.

A key component of the legislation is that the service to be supported must be symmetrical; that is, the upload from the home must be equally as fast as the download. The wisdom of that was explained by Pascal Desroches, AT&T Senior Vice President and CFO: “Over time, we think the demands will only grow, in particular, demand for symmetrical speed.” By stipulating the deliverable must be 100 Mbps symmetrical, the legislation leaves the door open should other technology come along. But the reality today is that only fiber can provide high-speed 100 Mbps in both directions.

If there is anything we have learned from the history of broadband, it is that what may be adequate for today is not adequate for tomorrow. The buzzword for this is “future-proof” broadband. The lesson of the internet has always been increasing demand. That the network companies are building future-proof fiber and hybrid fiber-coax networks with the capacity to expand speeds as necessary should be the model for the federal program.

What broadband speeds the marketplace is working toward

“AT&T Favoring Fiber Versus Fixed Wireless Access,” a recent trade publication headlined. The company has embarked on a plan to upgrade to fiber and expand the footprint of its old networks so that they will be “multi-gig enabled.” If AT&T is spending billions of private monies for multi-gigabit service, why should the federal government consider spending one penny of taxpayer monies for anything less?

As AT&T’s Desroches explained, “In a world where you’re going to have increased demand from gaming, increased demand from online education, increased demand from telehealth services and remote work, I’m just not sure that the fixed wireless is going to satisfy consumers that are using more and more connectivity in their day-to-day lives.”

Cable operators, the largest providers of high-speed broadband, report that 80 percent of American homes already have gigabit speed available into the home with tens of megabit speed out [a gigabit (Gbps) is 10-times faster than 100 megabits (Mbps)]. Cable companies have announced their networks can be upgraded to provide symmetrical gigabit service. The next generation of cable technology (DOCSIS 4.0) supports 10 Gbps down and 6 Gbps up.

So, one must ask, if the companies are spending their money for mega-fast broadband, why would the government even consider anything less?

Now is not the time to define digital down.

AT&T is a general, unrestricted donor to the Brookings Institution. The findings, interpretations, and conclusions posted in this piece are solely those of the author and not influenced by any donation.

      

Jackson County, Kentucky, has one stop light in its 347 square miles—but also high-speed fiber optic internet service to rival any big city. In the coal country of eastern Kentucky, the 800-person town of McKee is the hub of a one-thousand-mile fiber-to-the-home network covering two of the nation’s poorest and most remote counties. The fiber link was built almost entirely with dollars from the federal government. It is a powerful example of the infrastructure of the 21^st century and the importance of extending those connections to all Americans.

President Biden’s infrastructure plan includes $80 billion to connect unserved areas to high-speed broadband networks. The plan has been christened the American Jobs Plan because of the jobs that will be created to build the new infrastructure. The Kentucky experience illustrates the power of fiber connections to create jobs after the construction crews have gone home. When the fiber came to the areas around McKee, employment increased despite the collapse of the area’s main employer, the coal industry.

Next door to Jackson County and also on the fiber network, Owsley County is one of the nation’s poorest counties. Yet, between 2014, when the fiber network was completed, and 2019, unemployment in the county fell five percentage points, more than any other county in the state. Today, in a classic “if you build it, they will come,” residents of Owsley and Jackson counties work online, mostly from home, for companies as diverse as Amazon, Hilton, and Apple. They have professional, high paying jobs as customer service agents, tech support and health insurance support. The network, with only 7,000 customers, has created 1,100 jobs generating $24 million in new annual payrolls through the end of 2020, according to Keith Gabbard, its general manager.

The mountain hollows around McKee (pronounced “hollers” by the locals) were once home to Daniel Boone. Today, homes can use urban-grade high-speed fiber connections to stream Daniel Boone movies and television shows. But the importance of those high-speed connections is far beyond television shows. The ability to work from home was standard practice long before the rest of us discovered it during the pandemic. The ability to find employment without leaving home has been important to everyone, but particularly important to individuals with disabilities. Thanks to the fiber-to-the-home connection, when COVID hit, students were prepared for remote learning.

It was the network of the 19^th century—the railroad—that created the King Coal economy throughout the Appalachian region. But then King Coal died and the areas suffered. The network of the 21^st century—the broadband internet—is helping recovery in those areas. There is a profound difference between the two networks, however. The railroad was extractive, taking assets from the community to be consumed elsewhere. Broadband fiber is additive, bringing economic activity from afar to the area. Residents do tech support for Apple, for instance, just as if they were in Silicon Valley instead of an Appalachian valley.

But it is neither inexpensive nor easy to make the new broadband connections. Together, Owsley and Jackson Counties have slightly over 18,000 residents and the fiber network passes 7,800 homes. At a cost of about $50,000 per mile ($50 million for the whole project), building a fiber network to serve an average of fewer than eight homes per route mile is not a get-rich-quick effort. The mountainous terrain required the use of a mule named Old Bub to haul the cable. Yet, the local telephone cooperative—Peoples Rural Telephone Cooperative (PRTC)—stepped up to the challenge with the help of funding from the federal government. The price for 100 Megabit symmetrical internet service is only $39.95 per month, far below the national average.

As Chairman of the Federal Communications Commission (FCC) during the second Obama term, I visited McKee to see first-hand what was possible in the most unlikely of circumstances. The FCC ran the government’s major support program for broadband construction in high-cost rural areas, but the effort was failing to deliver for tens of millions of Americans. It was frustrating how often we heard the bigger telephone companies complain they could not expand their broadband footprint, even with subsidies, because it was “not profitable.” The experience in Jackson and Owsley Counties shows the value of non-for-profits to deliver where the profit motive is insufficient impetus.

In the closing days of the Obama administration, frustrated by how subsidies to local telephone companies were still not making broadband ubiquitous in rural America, the FCC looked at a new approach. Why not build high-speed broadband to rural areas the same way roads are built to those areas? Instead of subsidies to incumbent telephone companies, pay for the buildout once. The study estimated that it would cost about $80 billion to accomplish that goal and get all Americans online. The Biden infrastructure plan calls for exactly that expenditure.

If the infrastructure plan is adopted, the story of McKee, Kentucky could be the story of every remote, rural, high-cost area in the United States. Fiber networks are not just a technology—they can change peoples’ lives. When I caught up with Keith Gabbard, the general manager, he read me a text he had just received from a subscriber who had finally been able to move with his wife and two daughters out of his mother’s home: “Thought you might like to know that your internet has made it possible for us to buy a new home!” Gabbard told the story of another person who moved from New York because his cybersecurity work could be done on the fiber network.

The story of McKee, Kentucky—where a fiber optic connection has changed lives, created jobs, and recruited residents—is a story that should be available everywhere.

Amazon and Apple are general, unrestricted donors to the Brookings Institution. The findings, interpretations, and conclusions posted in this piece are solely those of the author and not influenced by any donation.

      

President Biden told the joint session of Congress he was asking Vice President Harris to take the lead on the broadband component of his infrastructure plan, “because I know it will get done.” The headlines emphasized the statement, “I am asking the vice president to lead this effort.” They called attention to how placing a high-profile figure such as the vice president in charge of closing the digital divide signals the issue’s high priority.

To the readers of political tea leaves, however, there are other signals in this announcement. Why, for instance, does the $100 billion broadband proposal require special effort when other large expenditures such as $174 billion for electric vehicles, or the $213 billion for affordable housing, or the $100 billion for clean energy do not need such a Sherpa? The answer is in the statement’s rationale: “I know it will get done.” Thus deputized, the vice president has an open door to make whatever changes might be necessary to the original proposal to produce results instead of rhetoric.

President Biden has made it explicit that he is “prepared to compromise” when it comes to the specifics of his infrastructure proposal, aka the American Jobs Plan. A group of Republican senators have proposed an alternative $65 billion plan to connect unserved areas rather than the Biden $80 billion proposal for rural deployment and $20 billion for other support programs, including the Emergency Broadband Benefit for low-income Americans. A deal is within reach. The vice president—who as a senator proposed her own broadband program—can bring it about.

“Finding a consensus will require going beyond the big headline numbers and diving into the details.”

Finding such a consensus will require going beyond the big headline numbers and diving into the details. There are two core issues that must be resolved if broadband bill is to be brokered: prioritizing expenditures for unserved areas and moving beyond temporary solutions to address the adoption problem for low-income families. Each of these issues, seemingly so straightforward and simple, is fraught with nuanced clashes between the public interest and corporate interests that will require a deft hand from the vice president.

Prioritizing Unserved Area Deployment

The president has repeatedly cited the statistic that 35% of rural Americans lack high-speed broadband access. Since the dawn of the internet, the federal government has spent tens of billions of dollars, principally to subsidize rural telephone companies, in an effort to expand broadband reach. Yet there are still around 30 million rural Americans, according to the White House, without access to the most important network of the 21^st century.

As Chairman of the Federal Communications Commission (FCC) during the second Obama term, I was responsible for the principal federal subsidy program for rural connectivity. The failure of that program to do the job prompted us to propose a plan that would build rural internet connections the same way we build rural highways. Instead of piecemeal subsidies, the federal government should pay once and get the job done. In 2017, Paul de Sa, the FCC’s chief of planning and analysis, produced an excellent report on the costs of such an approach. His analysis forecast a cost of $80 billion to connect fiber optic-based service to all the unserved locations in America. That study became the basis of the Biden proposal.

When it comes to implementing the rural deployment proposal, at least three sub-issues arise: the definition of what constitutes, in the President’s words, “future proof” broadband, the definition and prioritization of unserved areas, and the role to be played by not-for-profit entities.

Fiber is future proof

Connection via optical fiber cables (including the hybrid fiber-coax technology used by cable companies) should be the preferred use of public funds. Future proofing such expenditures means ensuring the ability to respond to continued growth in demand through a network with the ability to grow its capacity at the lowest incremental cost as demand warrants.

Over 100 million connected devices were added to American homes in 2020, bringing the total to over one billion. AT&T reports the average home today has 13 connected devices—from TVs to smartphones, tablets, computers, game devices and personal assistants, such as Alexa—a number, AT&T forecasts, that will almost triple by 2025 to 35 connected devices per home.

A new study by market researcher OpenVault has found a 40% jump—the largest in almost a decade—in broadband usage over the past year. The average household’s broadband consumption is now projected to be between 600 and 650 gigabytes by December 2021.

As demand surges, the great benefit of a fiber-based investment is that once the fiber is laid, the ability of that connection to improve its capacity is largely a matter of changing the electronics rather than rebuilding new connections. The expanding capacity of fiber has been driven by the combination of increased processing power at the ends of the network (as expressed in Moore’s Law) and the ability to handle that increased capacity (Keck’s Law). As computing capacity has increased and its costs have declined, the capability of fiber has followed a similar path. Because the signal is constrained within the wire, a fiber-based infrastructure is also much more scalable than wireless and satellite services that are limited by the amount of allocated spectrum and the way electromagnetic signals propagate through space.

Future-proofing the infrastructure investment means installing fiber. Spending federal dollars to build infrastructure that may be adequate for today’s level of demand but is less scalable to meet the demands of tomorrow is poor stewardship of the public’s monies, as it would postpone the problem, not solve it once and for all.

Defining ‘unserved’

To avoid prescribing a specific technological solution, the infrastructure legislation defined the “what” to be delivered rather than the “how” of its delivery method. As the legislation moves through the process, the difference between what new infrastructure is funded (i.e., the minimum service standard requirement to obtain a subsidy) needs to be distinguished from where such funding will be available (i.e., the definition of unserved areas).

Any identification of “where” begins with the FCC’s 2015 definition of “broadband” as 25 megabits per second (Mbps) into the home and 3 Mbps out. The FCC’s 2017 cost study attached an $80 billion price tag to connecting with greenfield fiber all the homes that did not meet that definition or met the standard but did not have a fiber and/or cable connection capable of efficient future scaling.

The legislation implementing the broadband plan moves beyond the 2015 benchmark to define an “unserved” area as one where at least 90% of the population does not have access to at least 25 Mbps both into and out of the home. While arguably the expectation of symmetrical service is an increase from the FCC’s asymmetrical 2015 definition, it is a distinction without a practical difference for the 2017 $80 billion cost estimate, because a fiber network or cable network is per se capable of the required symmetry. Yet, even with this new definition, the legislation calls for first priority to be given to areas where everyone agrees are most deserving: those without 25 Mbps down and 3 Mbps up from any provider.

Having identified “unserved” areas, the focus turns to the definition of what constitutes acceptable service to be paid for with federal funds.

The legislation prioritizes the construction of broadband networks capable of symmetrical 1 gigabit per second (Gbps) service. Quite logically, when building new connections in unserved rural areas, those networks should be equivalent to what technology can offer in other areas. The cable industry, for instance, reports that 80% of American homes have access to service delivering a downstream 1 Gbps service (approximately 40 times faster than the FCC definition). Spending government funds to build a service in rural areas that is inferior to what technology can offer in urban and suburban America is far from a responsible use of taxpayer dollars.

The legislation’s frequent use of symmetrical standards, however, has raised concerns in some quarters. For those companies currently meeting the FCC’s 2015 asymmetrical standard, the fear is that while their area will not be prioritized, it will still be considered “unserved” because the service isn’t 25 Mbps both up and down. For the cable industry, the concern is even more daunting because their hybrid fiber-coax technology’s blazing 1 Gbps download service could be deemed inadequate because upload speeds are an asymmetrical 35 Mbps.¹ Fueling these concerns is a constituency of companies that would love to receive federal funds to overbuild and compete with the existing providers.

There is no doubt that telecommunications policy should encourage competitive alternatives for consumers, but it is important to keep our eye on the prize of universal connectivity. First, there must be at least one high-quality provider; for 35% of rural Americans, that threshold has not yet been achieved. The FCC study estimated a cost of $80 billion to connect consumers to their first provider, ensuring that provider would use future-proofed fiber. The broadband plan gives clear priority to those unserved areas with precisely that amount of funding.

When public interest meets corporate interest

When federal dollars are being disbursed, the return on investment in lobbying expenditures can be astronomical. It is no surprise, therefore, that those who have alternative, non-fiber delivery systems—principally wireless and satellite services—are pushing for a place at the disbursement window.

The argument will be that wireless or satellite is “good enough” in comparison to the cost and time to deployment. Commerce Secretary Gina Raimondo has already indicated the Administration will “consider alternatives to fiber in the cases where that [alternative] is the best, most effective way to deliver broadband.”

The FCC analysis suggested the rural connectivity challenge broke into two levels. For approximately 85% of unserved locations, a one-time fiber investment would cost about $40 billion and require no ongoing subsidization. The last 15% would require another $40 billion and would require ongoing subsidization to address shortfalls in operating expenses.

If the push by wireless and satellite providers to receive funds forces a compromise, policymakers can certainly make that cost-benefit tradeoff decision. It should, however, be focused on the final 15% of unserved locations discussed in the FCC study. Such a tradeoff should be for the hardest to serve and most expensive areas—the last 15% identified by the FCC study—not as a substitute for delivering best available urban-quality fiber service to the other 85% of unserved rural Americans.

Not-for-profit providers

One reason the FCC’s high-cost subsidy program failed to deliver universal service is because even with the subsidy the rural telephone companies complained they could not make a profit. The Biden broadband proposal, thus, encourages not-for-profit entities such as co-ops and local governments to apply for support.

In response to this idea—that government would look beyond the traditional industry—the existing network providers went ballistic. The head of the cable association described such a suggestion as “slightly Soviet.”

Hyperbole, however, is not policy. Are the for-profit companies really going to fight for the ability to deliver service in unprofitable areas that have, to date, been neglected? Or is their real concern whether the bill will subsidize non-profits to “overbuild” the existing cable and telephone company plant? The focus of the infrastructure bill should be buildout as opposed to build-over. As worthwhile as a competitive choice might be for rural consumers, policy makers should prioritize the “where there is none, make sure there is one” approach while at the same time ensuring that the “one” is not just “good enough” for today but for well into the future.

If the not-for-profit provisions are targeted to unserved areas and if non-profit entities can best operate in those hard-to-serve areas—which, of course, have long been available to for-profit providers—they should not be precluded from doing so.

Adoption

There are more Americans who could connect to high-speed broadband but do not than there are individuals who cannot connect. While these non-users tend to be congregated in urban America, there are also millions in rural areas. The non-use by these individuals is the result of many factors, but principal among them is cost.

The infrastructure legislation contains $6 billion for the FCC-administered Emergency Broadband Benefit (EBB) program originally created by the COVID-relief CARES Act. This is an important initiative that provides low-income Americans with up to $50 per month to pay for a broadband connection. The program’s major flaw is exemplified in its name—it is a temporary “Emergency” program rather than something permanent. A revised broadband plan should include a permanent broadband connection subsidy program for low-income Americans participating in SNAP and other support programs.

This is not new turf to Vice President Harris. As a senator she sponsored S. 4131 which addressed both broadband deployment and adoption. As a solution to the adoption problem, the Harris bill required internet service providers (ISPs) to “provide an eligible household with an internet service offering…[and] discount the price” to a level equal to the amount of a “broadband benefit” also established in the bill. This approach was similar to what the Reagan administration created in 1985 to support telephone service for low-income Americans. At that time, the Republican-led FCC created the Lifeline program, to “make communications services more affordable for low-income consumers” through a $9.25 monthly subsidy to cover a low tier telephone service.

The original Lifeline concept was to make sure that everyone could make an emergency call. In 2016, the Obama FCC expanded the program’s scope to allow the subsidy to be applied to internet service provided as part of phone service, including mobile phone service. Unfortunately, that was as far as the law would allow the FCC to go. Yet, we all know that doing homework or applying for a job on the small screen of a smartphone is hardly adequate access to the internet.

“It is long past the time when we should have a Lifeline-like program for home broadband. Vice President Harris’ leadership can make this a reality.”

It is long past the time when we should have a Lifeline-like program for home broadband. Vice President Harris’ leadership can make this a reality. Broadband companies have responsibly shown the way forward for such a program. Comcast’s Internet Essentials, for instance, provides broadband connections to eligible low-income Americans for $9.95 per month. A coalition of internet service providers has proposed that the White House make broadband support permanent. It is good business for the companies that will benefit from new subscriber revenue and good policy that will expand broadband usage in the largest cohort of non-users. But it should also go farther.

Of course, any company that receives a federal broadband deployment payment should be required to provide a low-cost, high-speed broadband tier for low-income Americans. But all the ISPs, whether receiving support or not, should welcome the opportunity to follow the lead of the Harris bill to guarantee a low-cost tier with meaningful speeds.² They should do this regardless of whether there is a federal subsidy for that tier.

The President has expressed concern that “continually providing subsidies to cover the cost of overpriced internet service is not the right long-term solution for consumers or taxpayers.” The industry can attack the broad “overpriced” concern in two ways. It should welcome including a low-cost tier for low-income Americans in the broadband legislation (including appropriate increases in service speeds as circumstances warrant and capping price increases at the rate of inflation). It can also embrace the standby rate review authority in the FCC’s 2015 Open Internet Order (i.e., net neutrality) and the broadband legislation’s mandatory collection and assessment of pricing data by the FCC.

The ISPs should want a single federal approach rather than multiple (and perhaps inconsistent) state efforts. New York state has already enacted its own solution to the adoption and low-income rates issues. It has required ISPs to offer a 25 Mbps download service for $15.00 a month and a 200 Mbps service for $20.00. The ISPs have sued to overturn the law fearing it is the opening salvo of state-level rate regulation.³

The Fact Sheet distributed by the White House states, “Americans pay too much for the internet—much more than people in other countries—and the President is committed to working with Congress to find a solution to reduce internet prices for all Americans.” Talk of such rate regulation is waving a red cape in front of the internet companies.

The President’s observation that rate regulation is dependent on “working with Congress” suggests a long climb on the issue. How the companies behave will determine that long-term outcome. The leaders of the major cable broadband companies were around after the deregulation of cable television in 1984 when prices increased so much that Congress passed legislation to regulate cable rates. By their actions on broadband, they will once again be known. Collecting pricing data is a responsible and necessary action by the federal government. Resurrecting the 2015 Open Internet Rule, whether at the FCC or in legislation, would protect the public by creating the necessary standby rate regulation authority should circumstances warrant.

After 4 Years, Finally…

For the four years of the Trump administration, the Chairman of the FCC would make pronouncements about how closing the digital divide was his “number one priority.” The actions of the FCC and the Trump administration never came close to living up to that claim.

The Biden administration has taken action. During the Trump era, the promise of a soon-to-come “infrastructure week” was a running gag. In his first 100 days, President Biden laid down a bold new plan for American infrastructure—including the infrastructure of the broadband internet. Vice President Harris is in charge to assure “it will get done.”

That there should be universal broadband deployment should be a question beyond debate. That low-income Americans in both rural and areas should have support for broadband access, like they have for telephone access, should similarly be beyond debate.

“That there should be universal broadband deployment should be a question beyond debate.”

Senate Majority Leader Chuck Schumer (D-NY) has identified the politics of a rural-urban “great coalition” to strengthen broadband access for all. In Republican rural areas such a coalition would support deployment as well as access for the rural poor. In Democratic urban areas the coalition would attack the primary cause of low-income families remaining unconnected to the internet.

This important issue should not devolve into a struggle between the public interest of connecting all Americans and the corporate interests. Vice President Harris now has the baton; her previous legislative initiative indicates her appreciation of the interests and issues involved. Finally, the time has come to move beyond talking about the digital divide to actually doing something creative and dynamic about the problem.

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