Flip-Flop: Nike Now On The Receiving End Of Trademark Threat Over USPS Inspired Sneakers

from the die-by-the-sword dept

Nike finds itself on our pages again. We're fresh off of the settlement Nike reached with MSCHF over the Lil Nas X "Satan shoes". That settlement sees MSCHF agreeing to buy back at retail prices 666 modified Nike Air Max 97s after Nike sued over trademark. It could have been an interesting case, bringing in all kinds of questions about resale rights, the First Amendment, ownership of property, and more. Instead, it all ends with a posturing settlement that achieves nearly nothing, since these fought-over shoes have suddenly been moonshot into an even more rare and valuable item than they already were. But, Nike gets its ounce of litigation blood and gets to pretend this is all somehow a victory.

And perhaps that settlement will be referenced in another trademark dispute that seems to be brewing between the United States Postal Service and Nike, with Nike this time on the receiving end of the threats.

In an ironic twist, the sneaker giant is being taken to task by the United States Postal Service over an upcoming postal service-inspired sneaker reportedly being planned by Nike. The USPS’s challenge, the latest in a string of public relations headaches for the top athletic brand, all but guarantees the company will end up in court once again — but with the shoe on the other foot.

According to a USPS statement provided to Yahoo Finance, Nike’s experimental Air Force 1 sneaker “is neither licensed nor otherwise authorized by the U.S. Postal Service This is an unfortunate situation where a large brand such as Nike, which aggressively protects its intellectual property, has chosen to leverage another brand for its gain.”

Now, perhaps you're wondering just how much borrowing Nike is doing here. Well...

So, yes, the imagery of this entire sneaker is very clearly an homage to the USPS iconography and dress. Due to that, the USPS statement also noted ominously that it will do everything necessary to protect its "IP rights".

It's worth noting that I don't think this sort of thing represents trademark infringement necessarily. The chief questions in these cases are, first, will the public be confused into thinking there is some kind of official association at play here and, second, does the use in question dilute the brand. I would argue that nobody is going to think that the USPS is somehow now in the sneaker business and, because of that, nobody is going to think less or differently of the federal mail system by this use.

But, on the other hand, those are the same arguments made by those of us who pushed back on Nike's suit against MSCHF.

According to Christopher Buccafusco, a legal expert at the Cardozo Law School in New York City, Nike might find itself on far more shaky ground than when a judge ruled relatively swiftly in its favor.

“Nike’s claims to doing this without a license are much weaker than MSCHF,” he told Yahoo Finance. The latter “is engaged in a pretty obvious set of criticism and comments on Nike and Nike’s role in corporate culture. All of the sorts of things that we think fair use are there to protect,” he explained.

Yet Nike “is not doing any of that. [It’s just saying] that’s a cool logo that USPS uses, we want to use your cool logo. It’s not a commentary on USPS,” Buccafusco added. “Nike is not engaged in a first sale. It’s not like Nike bought USPS logos and stuck them on their shoes. They created a logo that was like the USPS logo because it kind of looks cool to them,” he said.

Note here as well that Buccafusco, despite the above, went on to state that he does not think Nike should lose this case if it does in fact go to court.

But, you know, live by the sword and die by the sword and all that. Given the recent lawsuit and settlement reached, it strains the mind to see how in the world Nike plans to articulate a coherent defense for itself in this case.

Filed Under: postal service sneakers, shoes, sneakers, trademark, usps
Companies: nike

Court Says Two Cops Who Deployed Deadly Force Can Use Florida's Victims' Rights Law To Hide Their Names From The Public

from the good-intentions,-awful-outcomes dept

Laws written with good intentions are being used in bad faith by public servants hoping to shield themselves from public scrutiny. Multiple states have passed versions of "Marsy's Law" -- legislation that grants more rights to victims of crime, including blocking the release of personal info under the theory this will protect victims' privacy and head off abuse and harassment.

Law enforcement officers have discovered this law and legislators' seeming unwillingness to exempt public employees from these protections. And, since officers are often able to claim every violent act they've engaged in was predicated by a criminal act by the suspect they've deployed force against, they're able to claim they were "victims" of crimes, even if the crime was nothing more than the grab bag of charges commonly known as "contempt of cop."

We saw this law put to work a few years ago in South Dakota. An officer, who shot an arrestee two times, was able to keep their name private despite being engaged in public service and presumably putting their name on official reports about the incident -- reports that would be considered public records.

It has happened again, this time in Florida. Two officers who deployed deadly force against arrestees -- represented by their police union -- have successfully sued to keep their names secret. The Florida Court of Appeal says the victims' rights enacted by the law are constitutional and the withholding of these officers' name is completely justified. (via Volokh Conspiracy)

The lower court's decision coming down on the side of transparency and accountability has been reversed. Here's how the lower court summed it up:

The Court finds that the explicit language of Marsy’s Law was not intended to apply to law enforcement officers when acting in their official capacity.

[...]

The officers do not seek protection from the wouldbe accuseds, instead they apparently seek protection from possible retribution for their on-duty actions from unknown persons in the community. This type of protection is outside the scope of Marsy’s Law and is inconsistent with the express purpose and language of the amendment. This Court cannot interpret Marsy’s Law to shield police officers from public scrutiny of their official actions.

Unfortunately, this court can interpret the law this way. It says the lower court misread the conflict between the state's victims' rights law and the public's right to "inspect or copy records of any state of local agency." The Appeals Court [PDF] says the newer law (the victims' right law) supersedes the older public records law (emphasis in the original).

Article I, section 16 can be construed in harmony with article I, section 24(a)—without excluding from the definition of crime victim any person entitled to protection under article I, section 16. Article I, section 24(a) describes the broad right to inspect or copy public records in Florida:

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted under this section or specifically made confidential by this Constitution.

The Appeals Court says older laws can be altered by newer laws, and residents' overwhelming support of the state's Marsy's Law (61% of voters) suggests the state as a whole desired the new law to protect every criminal victim, even public servants charged with arresting suspected criminals.

The court says the police can police themselves. It does not need the assistance of the public that has been locked out by this use of the victims' rights law.

This does not mean that the public cannot hold law enforcement officers accountable for any misconduct. Maintaining confidential information about a law enforcement officer who is a crime victim would not halt an internal affairs investigation nor impede any grand jury proceedings. Nor would it prevent a state attorney from reviewing the facts and considering whether the officer was a victim. If a prosecutor determines that the officer was not a victim and instead charges the officer for his conduct, then the officer would forfeit the protections…

But these are all state and local actions that -- while nominally performed to benefit the public -- rarely involve direct public participation or result in outcomes that approach any widely understood definition of "accountability."

This may be the correct ruling inasmuch as that's what the law says. But it's certainly not keeping with the spirit of the law, which was supposed to protect crime victims, not shield public employees from accountability. Legislators who've enacted these laws around the nation need to amend them to ensure this sort of abuse ceases.

Filed Under: florida, hiding names, police brutality, transparency, victims rights

States Are Rolling Out Massive ALPR Networks To Take Down Dangerous... Uninsured Drivers

from the traffic-enforcement-is-truly-the-new-homicide-division dept

There's a new player in the automated license plate reader arena. Rekor Systems is a bit different. While it does sell its own cameras, it also sells software that turns existing cameras into plate readers. It recently contributed a couple of sponsored posts to Police1 touting its ability to fight all sorts of dangerous crime.

Rekor’s system makes it easy for officers to detect and apprehend stolen/wanted vehicles. But ease of use is just the beginning: By apprehending stolen/wanted cars sooner, police departments can actually prevent crime.

About three-quarters of crimes involving the use of a motor vehicle before, during or after the offense are committed using a stolen vehicle.

According to Rekor, this will also contribute to officer safety because "too many times" officers are "assaulted or even killed" during "routine roadside checks." To be sure, the number of times this has happened is greater than zero. But it's not the epidemic Rekor implies it is as it pitches its products. Policing in America remains a pretty safe occupation, considering the job revolves around apprehending criminals.

What kind of crime is Rekor preventing? Its other sponsored post suggests it's not so much preventing crime as just relocating it. Somehow, the "prosperous bedroom community" of Mt. Juliet, Tennessee (pop. 35,000) has convinced itself it needs 39 Rekor cameras to police its streets. According to local cops, criminals were driving into Mt. Juliet to do crimes. And now this network of cameras is leading to dozens of arrests.

"We’ve surpassed 100 successful interceptions,” said [MJPD Captain Tyler] Chandler. “We’ve recovered over 60 stolen cars, 36 stolen plates, four stolen trailers, two missing juveniles and 40 wanted persons.”

Sounds great. But here's what Rekor is also enabling: widespread surveillance of drivers largely for the purpose of generating revenue.

The Oklahoma District Attorneys Council launched the Uninsured Vehicle Enforcement Program (UVED) in 2018 in an attempt to clamp down on uninsured drivers. Rekor and the council tout the program as a relative improvement for the uninsured. Instead of receiving a criminal court summons and a $250 fine, uninsured motorists captured by Rekor’s cameras, which are mounted on utility poles and mobile trailers, are sent a violation notice to their home, hit with a $174 citation, and must enroll in an insurance policy through Rekor’s insurance portal. “It’s keeping that person out of the court system,” Rekor Executive Vice President Charles Deglimini told OneZero. “The District Attorney’s Council set this program up in Oklahoma to declaw this tremendous amount of friction that’s caused by uninsured motor vehicle accidents.”

It's not so much keeping someone out of the court system as it is funneling more revenue directly to Rekor. Rather than obtain insurance using whatever method they'd prefer, drivers are forced to route their purchase through Rekor, which presumably harvests as much personal info as possible while providing this "service."

And it's not really a diversion from the court system. If the person can't afford the citation or is unable to acquire insurance through Rekor's portal, they're still going to end up facing criminal charges. The state claims prosecutorial discretion will be exercised when people are truly unable to pay, but that's something that tends to work a whole lot worse in practice than in theory.

For all the money that's gone into it, the uninsured driver (surveillance) program isn't really solving the problem it's supposed to be addressing. Perhaps more distressingly (at least for state officials and Rekor), there hasn't been much return on investment.

So far, the UVED program hasn’t achieved its ambitious goals. In 2015, the Insurance Information Institute estimated 10.5% of drivers were uninsured in Oklahoma. By 2019, that figure rose to 13.4%. In 2017, Sensys Gatso Group predicted that it would issue 20,000 notices per month. By the end of its two-year contract, according to Couch, about 90,300 notices had been sent in total. In 2020, Gatso announced that the program was not economically feasible because the overall enrollment rate from uninsured drivers was low. To date, Couch said, the program has enrolled “over 25,000 citizens.”

Then there's the insurance itself. Rates often have nothing to do with how clean your driving record is. Instead, it relies on other factors like zip code, credit score, and occupation. This means that drivers in Oklahoma (and elsewhere in the nation) with low credit scores and no serious moving violations can pay more than drivers with higher credit scores and multiple violations.

Drivers aren't driving without insurance because they're anarchists trying to stick it to the system. In almost every case, it's simply because they can't afford it. Stacking fines and fees on top of preexisting money problems isn't going to suddenly turn things around for uninsured drivers. That much can be observed in the low response rate to the citations sent out by the Rekor-powered surveillance network. And the whole things is at odds with Rekor's sales pitches that emphasize the system's ability to identify and take down dangerous criminals.

Filed Under: alpr, insurance, license plates, surveillance
Companies: rekor

Patent Loving Judge Keeps Pissing Off Patent Appeals Court, But Doesn't Seem To Care Very Much

from the how-is-this-allowed?!? dept

You may recall last fall we had an absolutely astounding story about Judge Alan Albright, a former patent litigator, who was appointed as the only judge in the federal district court in Waco. He very, very quickly made it clear that he wanted all patent cases to come to him, turning the Western District of Texas into the new favored home of patent trolls, taking the mantle from East Texas, which has famously been the trolls' preferred home for over a decade. Albright did things most people inherently recognize no judge should ever do. This includes things like literally going on a publicity tour to convince patent holders and trolls to file patent cases in his court. To this day, he seems to relish the fact that, despite being on the bench for just a little over two years, more than 20% of all patent cases end up on his personal docket.

With his desire to be the judge of choice for patent holders, he also built up a reputation for refusing to transfer cases to more appropriate jurisdictions -- even though the Supreme Court made clear in 2017 that patent cases should go to the appropriate docket, rather than whatever one the patent holder wants. A paper published last fall all about Albright's troubling role in patent cases called this out specifically.

Since taking the bench, Judge Albright has likewise staunchly refused to transfer cases out of the Western District. As of July 7, 2020, he has decided thirteen motions seeking transfer away from the Western District under § 1404(a); he has denied eleven. In fact, in a recent order, Judge Albright effectively told Apple—which has been sued at least ten times in cases assigned to Judge Albright and regularly seeks to have those cases moved to the Northern District of California—to stop filing transfer motions.

At the time we wrote that story last fall, the Court of Appeals for the Federal Circuit (CAFC), which handles all patent appeals, had just told Albright to transfer at least one of those cases. In February it got angry at Albright again in a case involving SK Hynix. Incredibly, even though SK Hynix sought to transfer the case all the way back in early May of last year, Judge Albright not only refused to rule on the motion to transfer, but ordered SK Hynix to go through the expensive discovery process -- which is what tends to destroy defendants in patent suits and push them to settle. After months of the judge refusing to even respond to the motion to transfer and having to go through expensive discovery, SK Hynix asked the CAFC to weigh in, and they slammed Albright, reminding him that they'd already scolded him about this last year:

We agree with SK hynix that the district court’s handling of the transfer motion up until this point in the case has amounted to egregious delay and blatant disregard for precedent. As we recently reiterated, “[a]lthough district courts have discretion as to how to handle their dockets, once a party files a transfer motion, disposing of that motion should unquestionably take top priority.” In re Apple Inc., 979 F.3d 1332, 1337 (Fed. Cir. 2020) (citations omitted); see also In re Horseshoe Entm’t, 337 F.3d 429, 433 (5th Cir. 2003) (“[I]n our view disposition of that [transfer] motion should have taken a top priority in the handling of this case by the . . . District Court.”). No such priority was given to the motion here, as it simply lingered unnecessarily on the docket while the district court required the parties to proceed ahead with the merits.

Unfortunately, rather than force Albright to transfer the case, they noted that he'd finally agreed to have a hearing on the motion to transfer, so they'd basically let it slide. The very next day, Albright ruled on the motion... and denied the transfer, saying the trial would move forward. A few days ago, SK Hynix agreed to a settlement to end the case.

Last month, CAFC had to step in again on an Albright case where he seemed to have done exactly the same thing. This case involved TracFone. In June, it had filed a motion asking Albright to either (1) dismiss the case for being in an improper venue, or (2) transfer it to a more appropriate venue. Albright did neither. Instead he pushed TracFone into discovery while simply not ruling on the motion. Notice a pattern? So did the CAFC:

We addressed strikingly similar circumstances from the same district court last month in SK hynix. There, as here, the petitioners sought mandamus relief from this court after waiting nearly eight months for a ruling on a motion to transfer that was fully briefed. We agreed with the petitioner that “the district court’s handling of the transfer motion up until this point in the case has amounted to egregious delay and blatant disregard for precedent.” 835 F. App’x at 600–01. We did not compel further action because the district court scheduled a hearing while the petition was pending before this court, but we directed the district court to stay proceedings, including the upcoming Markman hearing, until the district court ruled on the motion. We explained that mandamus was appropriate because “precedent compels entitlement to such relief and the district court’s continued refusal to give priority to deciding the transfer issues demonstrates that SK hynix has no alternative means by which to obtain it.”

It then points out what a travesty this is:

In Google, we explained that lengthy delays in resolving transfer motions can frustrate the intent of § 1404(a) by forcing defendants “to expend resources litigating substantive matters in an inconvenient venue while a motion to transfer lingers unnecessarily on the docket.” 2015 WL 5294800 at *1. We concluded that a trial court’s failure to act on a fully briefed transfer motion that had been pending for approximately eight months while pressing forward with discovery and claim construction issues amounted to an arbitrary refusal to consider the merits of the transfer motion. Id. at *1–2. We therefore directed the district court to promptly rule and to stay all proceedings pending completion of the motion. Id. at *2.

Our decisions in Google and SK hynix rest on a principle well-established in Fifth Circuit law: That district courts must give promptly filed transfer motions “top priority” before resolving the substantive issues in the case. In re Horseshoe Entm’t, 337 F.3d 429, 433 (5th Cir. 2003) (“[I]n our view disposition of that [transfer] motion should have taken a top priority in the handling of this case by the . . . District Court.”); see also In re Apple, Inc., 979 F.3d 1332, 1337 (Fed. Cir. 2020 (explaining that “once a party files a transfer motion, disposing of that motion should un-questionably take top priority.”); In re Nintendo Co., Ltd., 544 F. App’x 934, 941 (Fed. Cir. 2013) (“[A] trial court must first address whether it is a proper and convenient venue before addressing any substantive portion of the case.”).

We agree with TracFone that the circumstances here are comparable to those in Google. As in Google, the facts here establish that the district court has clearly abused its discretion. And, unlike in SK hynix, the court to date has taken no action to suggest it is proceeding towards quick resolution of the motion.

Ouch. Having been benchslapped yet again, Judge Albright announced that he was finally going to start doing what he should have been doing all along: issuing a standing order admitting that certain other issues, such as the important Markman hearing where the judge basically determines what the patent claims cover, would be held off until he was able to review venue transfer requests. Markman hearings don't need to be held right away, but Judge Albright seemed to push to get them going quickly even while ignoring transfer requests. But now he says he'll make sure to rule on transfer prior to any Markman hearing:

When there is a pending inter-district transfer, the Court will either promptly enter an order resolving the pending motion(s) prior to the Markman hearing or it will postpone the Markman hearing until it has had the opportunity to do so. The Court will not conduct a Markman hearing until it has resolved the pending motion to transfer.

It only took a bunch of CAFC benchslaps to get there. Of course, getting him to rule quickly doesn't mean that he'll actually transfer the cases. Three days after CAFC yelled at Albright about the TracFone situation, he denied the transfer request (as well as the dismissal request) even while admitting that TracFone's preferred venue in South Florida would be more convenient for the witnesses and parties.

Also, it looked like CAFC was on the verge of benchslapping him again, but he (WOW!) actually transferred one case to Houston. Of course, that was after he'd already denied the transfer last summer, and CAFC had already told him to reconsider, which he hadn't actually gotten around to many months later. The defendant in that case, Nitro Fluids, had gone back to CAFC to ask it to make Albright rule, and thus he finally did so -- leading the CAFC to drop the issue as moot.

And, most recently, Albright has denied a request by Microsoft to transfer a patent case out of his court. In this most recent ruling Albright declares that: "A party seeking transfer to an allegedly more convenient forum carries a significant burden." I mean, yeah, in your court.

I remain flummoxed as to how this is allowed. I cannot come up with any reasonable explanation for allowing a judge to act this way. It is beyond sketchy. He's advertising his court as friendly to patent filers, and when defendants seek to move cases to more appropriate venues, he stalls, forces them into expensive processes -- despite courts telling him to stop -- and when he finally makes a slight nod towards obeying the rules, he still regularly rejects the transfer requests. Even if he and his supporters argue that there's some reason that all of this makes sense, at the very least, it reeks of gaming the system, bias against patent defendants, and not wanting to play by the rules. It's shameful behavior by a judge.

Filed Under: alan albright, cafc, district court, markman hearings, patent trolls, patents, transfers, waco

Daily Deal: The Premium 2021 Project And Quality Management Bundle

from the good-deals-on-cool-stuff dept

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Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Wireless Provider Openly Shares Private Data Of 2 Million Subscribers

from the whoops-a-daisy dept

Another day, another notable privacy scandal we won't do much about.

Q Link Wireless is the latest company to be under fire for particularly lax security and privacy standards after it exposed the private data of its 2 million wireless customers. The company's My Mobile Account app (for iOS and Android) is supposed to let subscribers monitor their wireless accounts, while letting them track remaining data allotments and buy more data when needed. But for users, the app also displays the name, addresses, phone and text histories, last four digits of their credit card, and the account number needed to port your number out.

And all of this data was left openly exposed for anybody to access, provided you had the phone number of any of Q Link Wireless' 2 million subscribers.

The problem was first spotted by Reddit users and subsequently confirmed by Ars Technica:

"Since at least December and possibly much earlier, My Mobile Account has been displaying this information for every customer account whenever it is presented with a valid Q Link Wireless phone number. That’s right—no password or anything else required.
When I first saw a Reddit thread discussing the app, I thought for sure there was some kind of mistake. So I installed the app, got the permission from another thread reader, and entered his phone number. I was immediately viewing his personal information, as the redacted images above demonstrate."

It's not clear how long this screw up has been live, but complaints began popping up on Reddit sometime last year. When Ars reached out to the company it couldn't be bothered to respond:

"I began emailing the carrier about the insecurity on Wednesday and followed up with almost a dozen more messages. Q Link Wireless CEO and founder Issa Asad didn’t respond despite my noting that every hour he allowed the data exposure to continue compounded the risk to his customers."

It's worth noting that Q Link Wireless customers are generally lower-income users enrolled in the FCC's Lifeline program (which doles out a modest $9.25 monthly subsidy to be used for wireless, wired broadband, or phone service) and as such are potentially the least likely to be able to afford issues related to identity theft and fraud. Also worth reminding folks: in 2015 the FCC passed some relatively basic broadband privacy rules that were subsequently demolished by the GOP at the behest of the telecom lobby before they could take effect. So, good job all around, I guess.

Filed Under: data leak, exposed data, privacy, security
Companies: q link wireless

Iowa Senate Approves Bill That Would Add Qualified Immunity To The State Law Books

from the less-responsibility,-more-power dept

In 2018, the Iowa Supreme Court decided to align the state with one of the worst aspects of federal jurisprudence. Deciding it was too much to demand law enforcement officers perform their duties without violating rights, the state's top court decided to adopt a form of qualified immunity so plaintiffs could be just as screwed in state courts as in federal courts.

The case prompting this decision dealt with an arrest of someone who drove an ATV through a ditch. This violated state law but did not violate city laws. So, the court decided this bizarre case involving a conflict of state and local laws should be the standard bearer for civil rights lawsuits going forward.

A long dissent decried this decision, saying that lowering Iowa's standard to the federal standard was the wrong way to go. It would only make cops worse by providing them with a built-in excuse for every time they crossed constitutional lines.

We should not voluntarily drape our constitutional law with the heavy chains of indefensible doctrine. We should aim to eliminate fictions in our law and be honest and forthright on the important question of what happens when officers of the law commit constitutional wrongs that inflict serious reputational, emotional, and financial harms on our citizens.

That's been the standard in the state since this decision. For some reason -- with protests against police violence still ongoing around the nation -- the state legislature feels now is the time to codify the doctrine first conjured up by the US Supreme Court into Iowa law.

The Iowa Senate passed legislation Monday intended to strengthen 'qualified immunity” for law enforcement officers who take forceful action in situations where state law is 'not sufficiently clear” to understand their conduct might violate someone's constitutional protections.

Majority Republicans said the statutory language is needed to clarify court rulings and provide 'balance” in cases where the law was not 'clearly established” at the time of an incident giving rise to a claim against an officer.

The bill does more than give Iowa officers a new defense tactic. It codifies the US Supreme Court's watered-down legal standards that have made it extremely difficult for plaintiffs suing over rights violations to succeed.

Under provisions of the legislation, a law enforcement officer would not be found liable in any action for damages in an individual capacity if the state law was not sufficiently clear so that the officer would have understood the conduct was a violation of the Constitution or any other law, or the law was not clearly established at the time of the incident giving rise to the claim against the officer.

The burden would be on the plaintiff to show that the law enforcement officer violated a clearly established constitutional or statutory right and the officer's employing agency would not be liable if the officer was found not to be liable under the new provision.

There is no reason to do this since state precedent says this already exists. What's happening here appears to be political point scoring that caters to the base these legislators have chosen to serve.

'We're not here today to try to create something new,” said Sen. Dan Dawson, R-Council Bluffs, 'we're trying to preserve the current law of the land right now because there are a slew of political actors out there that have decided in making kicking law enforcement in their teeth a hobby every day.”

If you're not creating anything new, why are you bothering? Is this the counter-hobby -- one that placates cops and gives cop fans a reason to cheer, even as it makes holding officers accountable much more difficult? The legislation is, at best, redundant. At worst, it's a public statement to law enforcement that their supposed oversight is more interested in keeping officers happy than making sure they respect the rights of the people they serve.

Filed Under: iowa, police, qualified immunity

Activists Say Biden Camp Taking Too Long To Properly Staff The FCC

from the the-clock-is-ticking dept

If you'll recall, the Trump administration rushed the appointment of Nathan Simington to the FCC last year, despite Simington having absolutely no real experience or qualifications for the role. That's because Simington was appointed for two other reasons. One being the idiotic (and utterly hypocritical if you tracked the net neutrality fights) effort by the Trump administration to try and have the FCC target Section 230, which was derailed by Trump's election loss.

But the other purpose of Simington's rush announcement was to ensure the FCC would be gridlocked at 2-2 commissioners. Like the FTC, the FCC is comprised of a 3-2 partisan makeup depending on who controls the White House. And while Biden could have easily appointed a new FCC Commissioner to break that gridlock, we're now three months-plus into his Presidency and the Biden camp still hasn't appointed a third Democratic Commissioner (and potential new FCC boss).

Without that majority, the FCC can't reverse a lot of Trump era policies, like net neutrality. Or the telecom-lobbyist backed effort to effectively lobotomize the FCC's consumer protection authority. And not too surprisingly, activists are starting to get a little punchy about the delay

"The Federal Communications Commission is deadlocked, and will remain so until the Biden administration nominates, and the Senate confirms, a fifth commissioner. But we desperately need a functional FCC now: Millions of people are without reliable Internet access in the midst of a pandemic, kids are sitting outside Taco Bell to do homework, and people need to access information about how to get a vaccine."

On the one hand, some delay is understandable given the sheer volume of priorities on the administration's plate. At the same time, as telecom policy wonk Harold Feld notes, the delay is effectively crippling the FCC's ability to do its job during a pandemic that is clearly showcasing the essential nature of broadband. And the window broadband industry reform advocates are working with could be a very narrow one:

"That's basically a year lost on the ability to move forward on anything remotely controversial, or starting major new initiatives. That's huge, particularly if either the House or Senate (or both) flips in 2022. As I say, it's understandable given the multiple crises and the catastrophic damage done by the Trump Administration to the basic infrastructure of governance. But even if it's understandable, it's a trade-off with costs that need to be appreciated."

While vague, the Biden broadband plan is hitting most of the right notes with activists, given its heavy focus on community broadband efforts (and a strange concept known as "more competition"). But it's going to have one hell of a time getting passed a heavily telecom-lobbied Congress. Meanwhile, the FCC, the one agency perfectly tailored to holding telecom monopolies accountable, is effectively being forced to sit on its hands and wait before it's able to actually do its job and reverse Trump era policies focused largely on one thing: making AT&T, Verizon, and Comcast happy.

The lag in prioritizing the appointment of a new FCC head is just the latest indication of our myopic, imbalanced obsession with "big tech" as the only policy conversation worth having, while "big telecom" gets a free pass. While "big tech" gobbles up all the policy oxygen and sees endless calls for antitrust reform, "big telecom" continues to not only expand its massive broadband monopoly and vertically-integrated media empires, but increasingly mimic all the worst aspects of "big tech" as telecom giants increasingly push into online advertising.

"Big telecom" is every bit as problematic as "big tech" (in some ways worse given telecom's physical monopoly over access itself and close alliance with law enforcement and intelligence) yet the sector continues to get DC policy attention that floats somewhere between kid gloves and outright apathy.

Filed Under: biden administration, broadband, fcc, staffing