FCC Commissioner Mignon Clyburn has a lot of issues on her regulatory plate, some given marquee billing (the repeal of the commission’s Broadband Privacy Rule) and others lurking in the wings for years (unfair practices in prison inmate calling systems). I recently had the opportunity to talk with her about a handful of them.
And I’ll soon have the chance to do it again: Commissioner Clyburn is coming to Disrupt NY.
Clyburn is from South Carolina, where she served on and chaired that state’s Public Service Commission, as well as publishing Charleston’s Coastal Times newspaper. These days she’s the sole Democrat on the commission (the administration has yet to nominate a fourth commissioner, who, rules dictate, would also have to be Democratic), a dubious honor, perhaps, but nevertheless a position of great importance.
As the commissioner was generous with her time and talkative, I’m publishing our chat more or less complete. It has, however, been lightly edited and condensed, and where my notes failed me, very lightly paraphrased.
TC: Something you’ve pursued for years, but that isn’t really something the tech community has focused on, is inmate calling reform. I understand the systems are pretty anachronistic and predatory.
MC: I’ve been aware of this for some time now. About five years ago, I met with a group of advocates in DC. They got me into this hot crowded room to talk about what has been one of the most egregious — predatory to use your words — systems they’d ever witnessed. They were led by a grandmother, Mrs. Martha Wright, who we lost a couple years back. She was an incredible spokesperson.
The system that is set up here is the clearest, most glaring type of market failure I’ve ever seen as a regulator. It’s not uncommon to see rates as high as $24 for a 15-minute call.
The clearest, most glaring type of market failure I’ve ever seen as a regulator.
These families are economically stressed, they can’t afford to keep in touch. And that means when these inmates are released, they go home as strangers. These things have cyclical negative impacts on communities. We’re paying more with this revolving door situation, with inmates going back in.
And the FCC for the last 10 years has done nothing about it until, I’m not bragging, but we’re finally on the cusp of real reform. I have continued to beg, and I mean that, my state colleagues to do something.
TC: This seems like one of those situations where technology has been applied but hasn’t really improved the situation.
MC: There are many local facilities that no longer allow for in-person visits — they’re using these video visitations to be a substitute for that, and they’re charging for it. This is the type of thing where you’re using tech advances to double down on the pain these families are experiencing.
The problem is that at the local level it is profitable for so many of these entities, and to the facility, which is getting a nice cut.
There are so many layers to all this that people don’t see. This is really costing us. They see an inmate and you think, they deserve it. But the family is the one suffering.
TC: The FCC and the FTC have sort of passed internet services around like a regulatory football for years, up until 2015. People act like the Open Internet Order and Broadband Privacy Rule came out of the blue, but it seemed pretty well supported by precedent.
MC: We didn’t tweet right away when the president signed the order [rescinding the Broadband Privacy Rule] because I was, honestly, in a state of paralysis. We’ve been in this collaborative relationship, and I think that was dealt a blow. Quite frankly I’m still shaking myself to see if I’m awake.
When we developed this framework, we looked at what the FTC has been doing over the years, we looked at the Consumer Protection Act, we looked at other agencies, and of course we had 275,000 people who weighed in. It was a very involved process.
I don’t know where it’ll be in the future, but as it stands today nobody is the cop on the beat.
We [i.e. the FCC and FTC] have laid out a very complementary jurisdictional relationship. We are in touch and have a collaborative relationship, that predates me for sure. We all recognize that the strength of what we have enjoyed comes from what some would call a bifurcated relationship with interesting shades of gray. As things evolve in the communications space, some things are less clear from a jurisdictional standpoint. That’s why we work together on enforcement.
No matter where you stand on the open internet, where you are or how rigid you are, it is clear today that the FTC does not have any authority over common carriers. I don’t know where it’ll be in the future, but as it stands today nobody is the cop on the beat. And for all the other standards that were set to go into motion with the Open Internet Order, complemented by what we’ve done recently, there’s just no cop on the beat.
I heard my colleagues say we’re going to keep collaborating. But do we even have the means going forward? That’s been severely compromised.
TC: There have been setbacks, but these issues can’t really be put back in the box, can they? Now that the public is aware of the issues, are they something that will be on the table forever?
MC: I can only speak for the committee of one and the people that surround me, but we will never not give voice — that might be a triple negative. But we won’t be quiet. We can be excited about the ability to be more connected and have tech that like peers into my refrigerator and tells me I’m out of soy milk. I mean, that sounds kinda cool. But I don’t think people realize how exposed and vulnerable they are in their everyday lives as we become more connected.
If it’s in their interest to assemble and sell that information, trust me, they will do so.
I’m a positive person by nature, but I really think that we’ve put ourselves in a very vulnerable position when it comes to the information. They know what devices we’re using, what sites we’re visiting, the apps we download. They can monitor that, they can harvest that and sell it to the highest bidder.
If [ISPs] were to sell that information, my patterns, to my insurance provider, now my provider knows I regularly go to McDonald’s. And what will they do with that? Will they sell it to my employer? I don’t think people realize how vulnerable they would be if they had no idea what was being done with their information.
Not everyone is going to conduct themselves, and treat your information, the way they should. It is just the nature of business. It’s just in their best economic interest. And if it’s in their interest to assemble and sell that information, trust me, they will do so.
This is not Mignon Clyburn being overly emotional. This is an everyday reality that will become more intricate and more consequential as we integrate more aspects and dimensions of our lives online. Everybody is vulnerable right now.
TC: I noticed you concurred on the Charter order the other day. It seems like the FCC is in agreement on some issues, like getting broadband out there, even if, as we both pointed out, it’s at the cost of a healthy market. How do we balance those priorities?
MC: This is my “north star,” getting communities on the wrong side of the broadband divide connected. Companies aren’t going to make a major investment in a hyper-rural area where there are more trees than people, more prairie dogs than houses. That’s not where the money is.
This is my north star, getting communities on the wrong side of the broadband divide connected.
When it works optimally, the Universal Service Fund seeks to be the placeholder for when markets don’t work optimally. We know it won’t be organic, the market won’t grow naturally. But we all benefit as a nation when we’re all connected, when that infrastructure is there.
But what we can’t ignore is that even when we build it, they don’t necessarily come, because they’re economically disadvantaged. You can bring fiber to my front door, but if it’s $100 a month, you haven’t done me much of a service. That’s why you have to put the other legs on this stool. It has to all come together, the Schools and Libraries Fund, Lifeline, the Connect America Fund.
I have never allowed nirvana, perfection, to stand in the way of a reasonable compromise. I want nirvana personally, but when it comes to regulation, I’m not so arrogant to think I’ve got all the answers.
TC: You may have seen this already, but just the other day there was an issue in Cleveland where AT&T was found to have been redlining with its broadband, not serving poorer areas. Is that level of issue something you guys are aware of, or does that need to be addressed locally?
MC: This is where I have to split my personal position and my professional position. This is particularly true in rural areas, but there are challenges in terms of what communities are being served and which aren’t.
Let me put on my Mignon Clyburn “personal” hat. I’m very happy these people pointed out these glaring disparities in infrastructure there in Cleveland.
For those individuals to point out that we can benefit from being connected and the company says OK — that is the kind of collaboration we need at the FCC, so we know where the market is working and not working. That’s one of the things we need to speak more about. How should we deal with the other side of the tracks in Cleveland? Is there something we should be doing more of? Are there other layers or programs we should be speaking about? I’m glad the communities spoke up, I applaud them.
A few streets and a few demographic differences mean the difference between them being connected or not. Where the map says is a served area does not mean that every block, every street or every community is served.