Agenda for the 116th Congress: Bring Back Consumer Protection and a Fair Marketplace

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As Americans woke this morning from their long night of watching election results, there was a new political reality in Washington. A Democratic Party takeover the House of Representatives has created divided government again. Just under two years ago, Public Knowledge President & CEO Gene Kimmelman described a fight for fairness under the newly elected President and Congress. Although fairness is often referenced by President Trump, Americans have not experienced a great deal of it over the past two years in tech policy. This newly elected Congress now has a new opportunity to return to protecting an American public who has seen their interests ignored over the past two years of tech policy. Here are a few areas of focus for legislators looking to bring greater fairness to a technology marketplace that leaves consumers powerless to dominant companies.

It is impossible to deny that broadband is now the essential communications service of this century. But for too many Americans, communications tools are either not accessible, not affordable, or both. After years of emphasis and bipartisan rhetoric around the need to serve all Americans with high-speed broadband, 31 percent of rural Americans continue to lack access and studies have shown that many in urban areas are also underserved by their local broadband providers. Years of grant and investment programs have not adequately solved this problem that touches both red and blue America. A lack of access to high-speed broadband means lost economic, employment, health, and educational opportunities for Americans in these unserved and underserved communities, and an increasing divide between those who are thriving in the current economy and those who are not. Congress must act and listen to new ideas and voices beyond industry lobbyists to make the benefits of broadband access a reality for all. Without this openness, state and federal governments could fall into the trap of investing billions of dollars into broadband providers that have failed to serve all Americans, yet whose profits increase as their cost to deploy broadband goes down and consumer prices go up.

Access to broadband alone fails to create the same opportunities for all Americans if industry follows the current trend of the rising cost of communications generally. It is well documented that Americans who have access to communications networks typically have only one or few choices. This anticompetitive environment allows cable, telecom, and broadband providers to raise prices on both services and devices without the discipline of market competition, leaving consumers paying about 20 percent too much per month, more than $100 a year for no good reason. While providers have often chosen not to compete with each other geographically, the few times we have seen competition introduced to local markets, the price of services drops due to competition. Lack of competition has also led to regular, unchecked increases in below-the-line fees. Over the last two years we’ve seen a continued push towards mergers and consolidation in the communications and media markets and a rollback of protections against gatekeeper actions like net neutrality. The Administration has made efforts to block some mergers but so far the courts and the market continue to allow consolidation to continue. It's no wonder that many Americans feel like they are falling behind in a 40-year period of wage stagnation. The costs of essential communications often feels to everyday Americans like it is far outpacing their budgets. Now is the time for the new Congress to investigate these ever increasing costs and discuss possible remedies.

The litany of protections that have been attempted or successfully weakened in tech policy over the past two years is long. The Federal Communications Commission has led the way with the repeal of net neutrality rules, weakening of community notice and quality standards for broadband networks including in natural disasters, and limitations on the Lifeline program to make broadband more affordable for low-income Americans.These are just three prominent examples. Congress joined in by repealing strong privacy protections for broadband providers as we entered a new era of data breaches and privacy violations by companies that touch virtually every American’s life.

Americans love the new innovative services and tools of the big data internet age, but increasingly feel disempowered to protect ourselves and our society from the harmful and destructive practices that literally happen at the speed of light over the internet. An era of big data, the internet of things, and big tech lobbying requires a Congress strong enough to form an environment of trust on behalf of its people around the use of interconnected technology. For the past two years, we’ve had a Congress that shares in the outrage over deception from bots, confusion over online advertising, and other content moderation issues, but we have yet to see action. Americans watched as Europe led the charge in creating comprehensive online privacy regulations and now Congress is figuring out how to catch up. Add these concerns to the weakening of consumer protections over broadband and the new Congress faces a real challenge to show that it can answer the call of policymaking in this tech-saturated era.

We can only hope that the new divided government can create the space for clear action to meet these challenges. Both parties are now truly responsible for governing, and although many of the moderates have retired or been defeated, the needs for protection-creating policymaking is felt equally in the most conservative and liberal districts. There’s also hope that the influx of new members brings a class of younger, tech-savvy legislators. Members of Congress are elected based on a broad range of issues and so while Congress must act, it cannot always act both quickly and in great detail. Delegation to expert agencies has traditionally assisted with this challenge and is essential to keep up with the pace of innovation. Perhaps the greatest challenge to seeing movement on these issues is the short legislative calendar and the pull of other priorities, from renewed fights around healthcare to investigations of the Trump Administration. To overcome this, everyday Americans will need to become more engaged in the details and the advocacy around tech and communications policy. Another two years of weakening protections and inactive legislators will only enable consumer ripoffs to flourish. Now is the time for Congress to revive consumer protection and marketplace fairness through legislation and FCC oversight.

 
 

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