Episode 002 of EFF’s How to Fix the Internet

Gigi Sohn joins EFF hosts Cindy Cohn and Danny O’Brien as they discuss broadband access in the United States – or the lack thereof. Gigi explains the choices American policymakers and tech companies made that have caused millions to lack access to reliable broadband, and what steps we need to take to fix the problem now. 

In this episode you’ll learn:

  • How the FCC defines who has broadband Internet and why that definition makes no sense in 2020;
  • How many other countries adopted policies that either incentivized competition among Internet providers or invested in government infrastructure for Internet services, while the United States did neither, leading to much of the country having only one or two Internet service providers, high costs, and poor quality Internet service;
  • Why companies like AT&T and Verizon aren’t investing in fiber;
  • How the FCC uses a law about telephone regulation to assert authority over regulating broadband access, and how the 1996 Telecommunication Act granted the FCC permission to forbear – or not apply – certain parts of that law;
  • How 19 states in the U.S. have bans or limitations on municipal broadband, and why repealing those bans is key to increasing broadband access
  • How Internet access is connected to issues of equity, upward mobility, and job accessibility, as well as related issues of racial justice, citizen journalism and police accountability;
  • Specific suggestions and reforms, including emergency subsidies and a major investment in infrastructure, that could help turn this situation around.

Gigi is a Distinguished Fellow at the Georgetown Law Institute for Technology Law & Policy and a Benton Senior Fellow and Public Advocate.  She is one of the nation’s leading public advocates for open, affordable and democratic communications networks. From 2013-2016, Gigi was Counselor to the former Chairman of the Federal Communications Commission, Tom Wheeler. She advised the Chairman on a wide range of Internet, telecommunications and media issues, representing him and the FCC in a variety of public forums around the country as well as serving as the primary liaison between the Chairman’s office and outside stakeholders. From 2001-2013, Gigi served as the Co-Founder and CEO of Public Knowledge, a leading telecommunications, media and technology policy advocacy organization. She was previously a Project Specialist in the Ford Foundation’s Media, Arts and Culture unit and Executive Director of the Media Access Project, a public interest law firm. You can find Gigi on her own podcast, Tech on the Rocks, or you can find her on Twitter at @GigiBSohn.

Below, you’ll find legal resources – including links to important cases, books, and briefs discussed in the podcast – as well a full transcript of the audio.

Please subscribe to How to Fix the Internet via RSSStitcherTuneInApple Podcasts, Google Podcasts, Spotify or your podcast player of choice. You can also find this episode as an MP3 on the Internet Archive. If you have any feedback on this episode, please email podcast@eff.org

Resources

Current State of Broadband

Fiber

ISP Anti-Competitive Practices & Broadband Policy

Net Neutrality

Other

Transcript of Episode 002: Why Does My Internet Suck?

Danny O'Brien:
Welcome to How to Fix the Internet with the Electronic Frontier Foundation, a podcast that explores some of the biggest problems we face online right now, problems whose source and solution is often buried in the obscure twists of technological development, societal change, and the subtle details of Internet law.

Cindy Cohn:
Hi, everyone. I'm Cindy Cohn, the Executive Director of the Electronic Frontier Foundation, and, for purposes of this podcast, I'm also a lawyer.

Danny O'Brien:
And I'm Danny O'Brien, and I work at the EFF, too, although they have yet to notice I'm not actually a lawyer. Welcome to How to Fix the Internet, a podcast that explores some of the more pressing problems facing the Internet today, and solves them, right then and there.

Cindy Cohn:
Well, or at least we're hoping to point the way to a better future with the help of some experts who can guide us and, sometimes, challenge our thinking.

Danny O'Brien:
This episode, we're tackling a problem that has been a blatant issue for years here in the United States, and yet no one seems able to fix. Namely, why does my broadband connectivity suck? Cindy, I live in San Francisco, supposedly the beating heart of the digital revolution, but I'm stuck with a slow and expensive connection. My video calls look like I'm filming them with a potato. What went wrong?

Cindy Cohn:
Well, maybe take the potato away, Danny. But, you know, it's a recurrent complaint that the home of the Internet, the United States, has some of the worst bandwidth, the highest costs in the developing world. And that's a problem that our guest today has been tackling for much of her career.

Cindy Cohn:
Gigi Sohn is one of the nation's leading advocates for open, affordable, and democratic communications networks. She is currently a distinguished fellow at the Georgetown Law Institute for Technology Law and Policy. Previously, she was counselor to the chairman of the Federal Communications Commission, and she co-founded and led the nonprofit Public Knowledge for 12 years. And I'm proud to say that she's currently a member of EFF's board of directors.

Danny O'Brien:
Welcome, Gigi. When we talk about broadband policy, what we're really talking about is fast Internet, home and business Internet that's speedy enough to do what we need to do these days online. Yet, I was looking and the FCC, the regulator in charge of such things in the U.S., Defines broadband as 25 megabits per second down and 3 megabits up. That seems a little low to me.

Gigi Sohn:
Yes, it is very slow. But before I start on my rant and rave, I just want to say how delighted I am to be with you guys today. Very socially distant, 3000 miles away, but also how proud I am to serve on EFF's board, so thank you, Cindy, for asking me to do that, and I love being part of this organization.

Gigi Sohn:
So, yes, 25 megabits per second down, three up. That is the definition that was set in 2014, when I worked at the FCC. And now we are in 2020 and we are in the middle of a pandemic, and it is quite clear that, if you, like me, have three people working from home, on Zoom calls, at least two of us on Zoom calls at the same time and another doing her homework, that 25 megabits per second down and, particularly, three up, which nobody ever focuses on the upload speed, is just wholly inadequate.

Gigi Sohn:
So, let me tell you a story. Up until about six weeks ago, I had 75 megabits per second symmetrical at the low, low price of $80 a month. I called my broadband ISP, Verizon, and I said, "There's three of us in the house and we're all working at the same time. I need 200 megabits per second symmetrical for an extra $30 a month." And the tech told me the truth and said, "Yeah, 75 symmetrical, that's not enough for three of you."

Gigi Sohn:
So, that'll tell you a bit about how outdated the FCC's definition of broadband is, when a company representative is telling you that 75 megabits per second symmetrical isn't enough for just three people.

Danny O'Brien:
And I mean, what's crazy to me, and we're going to be talking in this show primarily about the United States experience, but I use what bandwidth I have to talk to people in the rest of the world, and it seems most countries, or a lot of countries, I should say, have far better connectivity at a far lower price. So, it seems crazy that the United States, which is certainly one of the origins of the Internet, has struggled to provide that Internet to its own citizens.

Gigi Sohn:
Well, I think there's a very simple explanation for that. In the other countries, the countries have either made, like South Korea, a major investment in broadband. They consider it infrastructure. They consider it, if not a public utility, like a public utility. Or, in places like England, the policy permits great competition. And we have neither of that.

Gigi Sohn:
The investment that this government has made in our infrastructure, in our broadband infrastructure, has been nominal. Now, there's some proposals out there I'm happy to talk about to up that number considerably. But perhaps even more importantly, the policy that we had, which promoted competition in the narrow band world, in the dial up world in the late 90s and the early 00s, the average American had access to an average of 13 different ISPs. Today, you're lucky if you've got two.

Gigi Sohn:
It does amaze me how little competition there is in San Francisco. So, there's a recent study out from a group called the Institute for Local Self Reliance, and it showed that nearly 50 million Americans have a choice of only one broadband provider, and that's using the FCC's really lousy data, which grossly overstates who has access to broadband. And that Comcast and Charter, the two largest cable companies, have a monopoly over 47 million Americans and another 33 million on top of that have only digital subscriber line, or DSL, which is not even 25/3 most of the time, as their competitive choice.

Gigi Sohn:
So, because we got rid of policies that promoted competition, we now have a series of regional monopolies, and they can charge what they want. And they could serve who they want.

Cindy Cohn:
So, how did we get here, Gigi? How did we end up with this lack of choice in the United States?

Gigi Sohn:
I think it's two reasons. Again, we let the private sector take over what is essentially public infrastructure. The government said, this was Democrats and Republicans, this is not partisan, "We should let the free market, so to speak, flourish. We should let the market flourish."

Gigi Sohn:
And for a while there, again in the late 90s and early 00s, it did. But then the FCC deregulated broadband and eliminated the requirement that dominant telecom providers in a community had to open up their networks to competitors. And that was the beginning of the end. So, that's when we had a choice of 13 dial up ISPs per American. But as soon as the FCC said, "No, no, no, broadband Internet access is something different than dial up. It's different than phone service. We're going to deregulate it and we're not going to subject it to that requirement that the dominant provider open up their networks," that's when the entire competitive ISP industry shrunk to nothing.

Danny O'Brien:
So, I remember a time when, during the transition between dial up, it was dial up, which was slow, but we had competition, so you had all these mom and pop ISPs, and you could pick which one you wanted to use just by calling a different number. And then there was DSL, and DSL was provided by the phone companies. Correct me if I'm getting this wrong [crosstalk 00:08:18]

Gigi Sohn:
Correct.

Danny O'Brien:
But down the copper wire. And that was sort of competing with cable, which had already laid its wires and could provide something a little faster.

Gigi Sohn:
Not exactly. So, DSL came first, and the Federal Communications Commission, which regulated DSL, considered it just like telephone service. It did come over the same copper wire, and they regulated it like telephone service, and again, required the AT&Ts and the Verizons of the world to open up their networks to competitors. This was a result of the 1996 Telecommunications Act, which is a much derided, but I believe, actually, it was quite an excellent piece of legislation that really has almost no force and effect anymore.

Gigi Sohn:
Then cable modem service came along afterwards, and the cable industry went to the FCC and asked it to declare how it should be regulated. Should it be regulated like DSL, or should it be regulated like something else? Or unregulated, or deregulated? The FCC decided, this was in 2002, that cable modem service should be deregulated, not subject to the same requirements as DSL.

Gigi Sohn:
That case went all the way up to the Supreme Court, which said, "Well, we don't think the FCC's reading of the Communications Act of 1934, which is its organic statute, the statute that it is required to follow, is the best. But because it's the expert agency, they get deference." So, the FCC won, and then the FCC said, "Well, if we're not going to regulate cable modem service like a telephone service, we're certainly not going to regulate DSL that way, and we're certainly not going to regulate mobile broadband, or mobile wireless that way."

Gigi Sohn:
So, that's when, in 2002, well, 2005 really, after this Brand X decision came out of the Supreme Court, that's when everything came tumbling down, and this so-called free market in broadband was allowed to reign. And what you got, again, under both Democrats and Republicans, was intense consolidation, regional monopolies. And guess what happens with concentration and monopoly? High prices. We have some of the highest broadband prices in the world. We average about $79 a month for broadband, and again, that's the crummy broadband.

Danny O'Brien:
Yeah, I do remember that it was specifically around about this time, around 2005, when connectivity began to really suck here in the West Coast. I remember, really, before that, there were competitors in copper wire DSL, COVAD and Sonic were two of the challengers here on the West Coast. But after that decision by the FCC, they really seemed to struggle to compete with AT&T, the local phone incumbent whose wires they were using.

Danny O'Brien:
Still, all of those series of decisions you described did leave cable and the phone companies sort of dueling with each other. Why wasn't there enough to bring competition to the next stage of broadband?

Gigi Sohn:
They're not because the phone companies have been punished when they've invested in fiber. Right? So, Verizon Fios, when it came to market, everybody was really excited and Wall Street just pummeled its stock price. So, for all intents and purposes, Verizon Fios is not expanding. It's in really very limited areas. I don't know if you can get out there in San Francisco, but in a lot of places, you cannot.

Gigi Sohn:
Similarly, AT&T, I think, not wanting to follow Verizon's lead, hasn't invested in that either, and those two companies are far more interested in building out their mobile wireless capacity than they are in building their wire line fiber capacity. So, that's why you don't see Verizon Fios and AT&T's Uverse, that's the name of their fiber offering, which again, is very limited. And by the way, AT&T still offers DSL in a lot of places, particularly in inner cities.

Gigi Sohn:
That's why you don't see a lot of competition between the two of them. And really, that was the thinking behind the Telecommunications Act of 1996, was that you were going to have this kind of fervent competition between the cable companies and the telephone companies, and you would have fervent competition between cable companies themselves.

Gigi Sohn:
But what these companies did, good for their bottom line, was basically split up the country into different regions and become monopolies. But it said AT&T and Verizon, I think if they could sell off their fiber, they'd do it in a heartbeat and just focus on mobile.

Cindy Cohn:
So, Gigi, how do we break up this situation where we're stuck with a duopoly? And how does this conversation fit in with the ongoing, very public fights around network neutrality?

Gigi Sohn:
Yeah, so the first thing that the FCC needs to do, if we have a new FCC, is restore its authority to promote competition in the broadband market. And look, I'm glad about how many people know about net neutrality. My 15-year-old daughter and all her classmates know about net neutrality. My 86-year-old mother knows about net neutrality, and my relatives know about it.

Gigi Sohn:
But net neutrality, in my mind, is less about ISPs blocking and throttling and discriminating against traffic. Obviously that's something we really, really want to prevent. But it's more about is there somebody, is there a government agency that is overseeing an industry that is highly concentrated, that controls an incredibly essential resource, and that, without anybody to oversee them, is free to charge whatever they want and free to do whatever they want.

Cindy Cohn:
One thing that really shifted things for me was the 2014 DC Circuit decision that rejected the prior legal basis that the FCC was relying on to do network neutrality. As part of that, the DC Circuit told the agency that it couldn't even pass rules to target abuses by the ISPs. So, as a result of that decision, the FCC couldn't stop ISPs from blocking, it couldn't stop them from discriminating among applications, favoring its own or making a pay-to-play scheme, and it couldn't stop special access fees. This meant that we really weren't going to get a market correction here, and we had to do something. And ultimately, what we did was the Open Internet Order.

Gigi Sohn:
Yeah. Look, here's the problem. The part of the Communications Act, what is known colloquially as Title II, or Chapter II, in plain English, right now, is all the FCC has to assert its regulatory authority over broadband. Now, should Congress pass a new chapter, a new title, that really is just super focused on broadband? Yeah, I think that would be a great idea. But we don't have that right now.

Gigi Sohn:
And that's why, when I was at the FCC in 2015, we reversed that 2002 decision that I talked about some time ago, and said, "No, no. We're going to regulate broadband like a telephone service," although not entirely like a telephone service. And this is where it gets a little complicated. Because obviously, a law that was written in 1934, every jot and tittle shouldn't necessarily apply to broadband.

Gigi Sohn:
But the good news is, in that same 1996 Telecommunications Act, the FCC was given permission to forebear or not apply parts of Title II that it didn't believe to be in the public interest. So, what we did was said, "Look, the only game in town for us to protect consumers and promote competition," and this is really important, and I'll talk about that in a minute, "Is Title II." But I think we didn't apply 75% or 80% of the Title II provisions because they didn't make sense to apply to broadband.

Cindy Cohn:
I know. I remember when that fight was going on and our activism team was like, "Title II plus Forbearance." Doesn't really lend itself to a slogan or something we could put on T-shirts or anything. But it really was a way that I think, and you were inside the FCC at this time, a way to really ensure that we were able to think about regulating broadband in a way that was consistent with how broadband is, that we weren't straitjacketed into things. I mean, the whole thing would be better if Congress actually just did its job and thought about how to regulate broadband.

Danny O'Brien:
I feel like a lot of the theme of our conversations about fixing the Internet is that the most obvious solution is somehow blocked in some way, because, given that it's so obvious, why don't we do it? And looking at the fights that have gone on about broadband, regulation and encouraging competition, the obvious thing to do is not to have a law written in 1996 based on a law written in 1934, but to write a new one.

Danny O'Brien:
And it just so happens, in the United States, that Congress is so dysfunctional right now that we can't do that. So, what are the other, sneakier, skunkworksy kind of routes can we take to fix this?

Gigi Sohn:
Well, look, the fact of the matter is if we're going to close the digital divide in this country, it's not just about fast broadband, Danny. It's about over 140 million Americans that don't have broadband, either because they don't have any infrastructure or because they can't afford it. It's important to note that the affordability problem is far larger, like 2.5X larger, than the infrastructure problem.

Gigi Sohn:
So, at a time like today, like now, during this pandemic, where the only way you can work and your kids can learn, and you can communicate with others in a safe way is through the Internet, we've got to deal with the problem at hand, and that's the affordability problem. And that is not going to get solved by the private market.

Gigi Sohn:
What's interesting is, right now, you're seeing both the wire line and the wireless companies going to Congress and saying, "Can you provide a $50 a month credit for broadband for low income Americans?" And they're finally admitting two things. Number one, is that government must have a role, and they hate that, right? Because it's all about the "free market" for them. And number two is they cannot close the digital divide themselves. They've been boasting about how they're providing broadband free during the pandemic and they're not cutting people off, that they're not charging them late fees.

Gigi Sohn:
But the latest numbers I've seen is that, in the first two quarters of 2020, only 2.4 million people took up broadband that didn't have it before. And that doesn't necessarily mean they're low income. That still leaves... I testified in front of Congress that 141 million Americans don't have broadband either because of affordability, infrastructure. Microsoft estimates 162 million, almost 50% of Americans. Okay?

Gigi Sohn:
So, we're talking about a huge gap, and if all they've signed up at the beginning of the pandemic is 2.4 million, industry is not moving the needle. So, that takes us to who's going to fill that gap. It's got to be government and it would certainly help if the 19 states that have prohibited their communities from building their own broadband networks, those laws were repealed.

Danny O'Brien:
Wait, wait. Back up a bit because I want to get this down. Because when I said there must be someone else if the federal government is doing this, I was coughing under my breath and pointing out like the states could do it or maybe we've had rumblings in San Francisco for many years that maybe that San Francisco might build out its own broadband. But you're saying that the states actually prohibit cities from creating their own competition.

Gigi Sohn:
Yeah, so 19 states either totally ban local communities from building their own broadband networks or limit them in some way, put hurdles over them. So, for example, in Colorado, if you're a local community and you want to build a broadband network in that community, you have to have a ballot initiative. Now, as it turns out, something like 70 Colorado communities have had that, but think about if you're a low income community. It's expensive to have a ballot initiative, and who are you fighting? You're fighting the resources of a Comcast or a Charter or an AT&T and a Verizon, who are trying to block you.

Gigi Sohn:
So, there are either enormous hurdles or they're flat out bans. Now, when I was at the FCC, we tried to preempt those state laws and we were struck down. Our decision was struck down by the 6th Circuit. So, it's either going to take Congress to pass a law, and in fact, there is one law that actually was passed by the House of Representatives, the Accessible, Affordable Internet for All Act, that would preempt those state laws, or states themselves.

Gigi Sohn:
I've urged communities. I say to them, "Get every mayor that you know, get every chamber of commerce, get every university, and go to your state legislators and say, "You are killing us and you are killing the state economy. You need to repeal this law."

Cindy Cohn:
Yeah, it's a disaster. Now, we do have some good news. One of the things that happened with the last DC Circuit ruling around network neutrality is that the circuit freed up the states to be able to do some of this work.

Gigi Sohn:
The Communications Act of 1934 does explicitly note that it is both the duty of the states and the federal government to provide connectivity for all. Obviously, they weren't thinking about broadband. They were thinking about telephony, but again, this is the telephone of the 21st century. There's always been a dual role.

Gigi Sohn:
Now, what happened, again, this was around the late 90s and early 00s, was that the cable and telephone companies went to state legislators and they said, "You know, the feds got this Internet regulation thing. You don't need to do it. You can deregulate yourself." And that's what they did, and indeed, Governor Brown signed a largely deregulatory bill in California. So, the states got out of the business of protecting consumers, protecting competition in their own states. And when you have a state as large as California, the notion that the state government would have nothing to do with this vital resource is kind of a crazy idea.

Danny O'Brien:
I think one of the things that we got, I got to spend some time a few years ago doing that thing where you have a focus group and you get to hear people actually talking about your issues. We were behind one of those two-way glasses. And the funny thing was, of course, that our topic of interest is surveillance.

Danny O'Brien:
So, there are all these people talking about surveillance, and then occasionally looking over at the two-way mirror and wondering who exactly was listening to this. But the thing that came out of it, for me, was people were freaked out about surveillance. People were particularly mad, though, at the cable companies and the phone companies, out of all the people that were.

Danny O'Brien:
What was interesting to me is that this was sort of before the Facebooks and the Googles began to attract the venom that they have now. People really don't like their cable companies. And this turns out, politically, too. I think particularly after the pandemic. Every single person who has a child need broadband right now because otherwise they can't comply with the education requirements of this day.

Danny O'Brien:
So, I think there's a real political moment here, and I think, tell me if I'm wrong, but I've seen politicians actually pick this up as an easy issue that isn't being addressed by, really, either side of the political divide effectively. And I think that it can work at every level. It can work at the city level, it can work at the state level, and the federal level. What should we be telling those politicians who, maybe, realize that this is a vote winner?

Gigi Sohn:
So, again, let's start at the state level. If you have a law that severely limits or prohibits local communities from deciding whether or not to build their own broadband networks, repeal it. Repeal it today, repeal it tomorrow. That is, to me, the number one target, in my mind, that is limiting competition, is limiting the closing of the digital divide. It is terribly anti-competitive and anti-consumer. So, that's number one.

Gigi Sohn:
At the local level, I would say consider building your own broadband network. There are so many cities and towns where, if you live just outside the city limits, you have to buy satellite. You have to buy three different services. You get DSL, satellite, it costs like $300-400 a month. Those are places that the private sector don't want to serve because there's not an economic return that's big enough for them. That's where community will serve.

Gigi Sohn:
And at the federal level, look, the Feds have to do a couple things. Number one, they have to immediately, first on an emergency basis, and then permanently, pass what I call a monthly broadband benefit of at least $50 a month. Because these local community broadband builds are not going to happen overnight. So, you've got to make a dent in the affordability gap. And the way you do that is either you could call it a voucher or a credit. I don't care. Now we've got industry on board.

Gigi Sohn:
The only thing that's holding this up right now is that Republicans don't want to pass a COVID-19 relief bill that's anything but a skinny bill that deals with some of the employment problems. I think this is definitely a COVID-19 problem, but the Republican Party doesn't agree. So, they need to do that, number one. First on a temporary basis, second on a permanent basis.

Gigi Sohn:
They need to preempt the states to the extent that the states don't do it themselves, the federal government has to preempt those prohibitive state laws on municipal broadband. And third, they need to make a big bet on infrastructure, at least between $80-100 billion for infrastructure in those places where there is no broadband. And just to say, everybody likes to focus on rural America, rural America, rural America. There are lots of places in urban and suburban America that don't have infrastructure either.

Gigi Sohn:
But what's important is the government has to do a better job of making sure that they get a return on that investment. We have spent tens of billions of dollars over the last decade on building infrastructure. And what's happened? It's happened in California. You get a company like Frontier that goes to the government trough, and doesn't build what it promised. And now it's going into bankruptcy.

Gigi Sohn:
So, what's critical is for both federal and state governments working together as opposed to being adversaries, which they have been for the last three years, to make sure that, if my taxpayer dollars go into Frontier's pocket or CenturyLink's pockets, or anybody else's pockets, that we get the networks that we were promised.

Cindy Cohn:
Gigi, let's go to the question that we kind of started with. What does the world look like if we get this right? How does our world get better if we get this right?

Gigi Sohn:
If we get this right, every American who wants to be connected will be connected, and that's pretty much every American. One other thing that drives me absolutely nuts is people who say, "Well, there's lots of causes for the digital divide. Relevance is one of them." People don't think it's relevant.

Gigi Sohn:
Well, all you need to do is go see the lines to use the computers at the library to know that is false, and that relevance means a lot of different things to different people. It's another way of saying, "I can't afford it." It's another way of saying, "I don't have the digital literacy to be able to use a computer." So, every American is connected at robust speeds of minimum, in my opinion, of 100 symmetrical, and that the government money is going to build future-proof infrastructure, not stuff that we're going to have to upgrade again in another 10 years, and that means fiber.

Gigi Sohn:
Everything that allows for full participation in our society and our economy is now dependent on a robust broadband Internet access connection. So, that's what the world looks like, and I think we can get there, but we are so far from it right now, and it's shocking. The first national broadband plan was written in 2010, by my friend, Blair Levin, who was, at the time, coordinated this process at the FCC. And we have not even come close to fulfilling 90% of what he proposed in that report, and that is really sad.

Cindy Cohn:
There's so much that we're going to get if we fix this. It's kids, it's work, it's flexibility for everyone to be able to set their lives up in a way that matches them better. In this time of the pandemic, we're seeing how important it is to some people to be able to support their families. Robust broadband everywhere gives people so many more choices.

Cindy Cohn:
And I think there's an equity point under this, as well. Right now, it's pretty expensive to live in some of the places where people have to live to make a living. If we end up with robust broadband everywhere, we're going to free up people to do good work and do it from wherever they happen to be. I just don't know how many good works and excellent memes and good organizing and groundbreaking ideas we're missing because the only people who really get to participate are people who can live in places where there's really strong broadband. There's just so much we can gain from this.

Gigi Sohn:
Think about the moment we're in right now, where people are protesting in the streets every day for racial and social justice. The digital divide disproportionately impacts people of color, regardless of income. And that's because of systemic racism. That's because of unjust credit practices, unjust and discriminatory housing practices. You name it.

Gigi Sohn:
And years ago, in the 60s, Lyndon Johnson dictated something called the Kerner Commission. He basically had a guy named Otto Kerner, I don't remember what Kerner did, but he basically looked at the causes for social unrest and racial inequality in this country. One of the causes was the lack of access to what was the only medium at the time, broadcasting. The way that broadcasters covered the protests, the Civil Rights protests, and how they covered communities of color. And needless to say, it was not a positive.

Gigi Sohn:
So, access to the means of communication is a way of pulling one's self up and being equal in society, having an equal voice in society. So, it's much more than, can somebody in a garage invent something. It's, can all Americans have equal rights and equal access to the main means of communication in this country and, frankly, in this world.

Cindy Cohn:
I think that's such an important point, Gigi. We have to understand the role of technology in lifting people up and giving them access to information, and uniting people from different backgrounds. Lots of people have talked about that for years, but what we spend less time talking about, and what I think is equally important, is how technology is being used every day to document abuses of people in power, including police abuses against people of color.

Cindy Cohn:
And once those abuses are documented, how easily they can be widely and immediately shared, accessed and discussed. This ability to see what is actually going on in the streets in nearly real time has helped to shift the conversation about equity in our country. We have so far to go, but we're not going to get there without people across the country, and honestly across the globe, being able to participate by sharing what they see and accessing what other people see on their phones and computers, reading the articles, commenting on social media, organizing and reaching out to their representatives.

Cindy Cohn:
Internet access is just vital to all of these things. It is the infrastructure of democracy in our time, and also of social change. We have to understand that vital role and begin to think about broadband in that perspective.

Danny O'Brien:
I remember in the 90s, arguing with someone about broadband, and what was fast and what wasn't. I said, "Well, what about the upload speed? We've got to have a fast upload speed." And I remember this, he worked for British telecom, he sort of said, "What are they going to upload? Video? And are they going to create? We have the BBC."

Danny O'Brien:
Of course, that's what starts revolutions, is the ability to upload what you see around you and show that to the rest of the world, and you need fast Internet to do that.

Gigi Sohn:
Yeah, absolutely.

Cindy Cohn:
Well, thank you so much, Gigi. This has been a lot of fun, and I think we can build that better world, and I'm so glad you're a part of helping make it happen.

Danny O'Brien:
That was super interesting and I think one of the positive elements that I got out of it was this vision of people getting the chance to build or contribute to their own Internet connectivity. Though it seems to me that part of the reason why people get frustrated is because they don't feel they have any power, and the idea that you might have a municipality or a community or a local business providing you Internet connectivity is very inspiring because it'll mean that you literally have a connection to the people providing you the connection.

Danny O'Brien:
And also good for technologists, too, because I sometimes get frustrated, but it's not like I can go to Comcast headquarters. Whereas, if it was just down the road or my local city, I might be able to make a difference.

Cindy Cohn:
Yeah, I think that's right. The theme of a lot of this is how do we bring back user control, and what was exciting to me is Gigi's really talking about giving users control of the very means in which they get to the Internet, which is the very first step. And I think the other thing that was really important from this is that we had a reasonable market in the late 1990s. We had a lot of choices for ISPs, and maybe a lot of people who came online later than that may not realize that.

Cindy Cohn:
This was something that we had kind of gotten done pretty well, and then we broke it. This is something that got broken. It got broken, in part, because of FCC deciding that it didn't want to regulate anymore. That decision being confirmed by a Supreme Court case called Brand X in 2005. Then we had a regulator that wanted to regulate again, which is when Gigi worked there. And now, we have, under Ajit Pai, an FCC that doesn't want to regulate again.

Cindy Cohn:
But the good news in all of that is that we do know what a good answer looks like. It's not an all or nothing in terms of regulation, as if, once you're regulating, you're all the way to a public utility. That the Open Internet Order that we had in the last years of the Obama administration had a balance, basically, requiring some regulation in order to spur competition, but also something called forbearance, with the regulators saying, "We want to regulate in this way, but we don't need to do everything that we do for broadband in the same way we did for telephone."

Danny O'Brien:
Right. I feel like there's just no way you can not regulate the telecom industry because it's already tied up in so much red tape. And not just in the U.S., To be honest. This was a very American-specific conversation that we had here, but I end up working with a lot of people all around the world and I know that I said that lots of countries have better connectivity than the U.S. On average, but a lot of countries have much worse connectivity as well.

Danny O'Brien:
And when I sit and talk to them, folks working there, they have exactly that same frustration. It always seems to be the same combination. It's always how do we break through a lack of competition, or the fact that the telcos have come to this agreement with governments that isn't working.

Cindy Cohn:
Yeah, it's interesting because sometimes this gets framed as regulation or not regulation, and first, as I mentioned, you can have smart regulation that really helps, but also, a lot of what Gigi was talking about was actually the law getting in the way, regulation. And she was talking about the things that we need to do to fix it. The first thing on her list was we need to get the 19 states that have said that people can't have municipal broadband or can't build their own competitors to the giants. We need to get those laws repealed. That's regulation as well, but it's regulation that's disempowering users, rather than empowering them.

Danny O'Brien:
What did you think about the idea of giving everybody $50 to get decent Internet?

Cindy Cohn:
Well, I think it's worth thinking of in the short term. And she said that. This was a short term subsidy. She basically said we're not going to be able to build out the infrastructure we need, especially for, and I thought it was important that she pointed out that we need infrastructure built, not just in rural places, which is where we think of immediately, but lots of urban places. We need to build that infrastructure.

Cindy Cohn:
So, I think the thought that we needed to give people a subsidy so that they could get broadband now, because people need broadband now, especially during this pandemic time, that would be a bridge towards a time in which we had competition actually helping us have more options and the prices go low.

Cindy Cohn:
I'm open to that. I think we're in a time in which we need to think a little more broadly about how the government can support people. And certainly, the concerns that she raised about some of the ISPs, Frontier, for instance, taking a whole lot of government money, saying that they were going to build out infrastructure, and then not building it out and going bankrupt. That's just a horrible situation. And at least if you give money to the end users to buy connectivity for themselves, you avoid that kind of problem, which frankly is a lot more money lost.

Danny O'Brien:
Right. So, the idea is that, at least if you're giving the money to the users, they're going to expect and hopefully get something from those companies, rather than just giving the money directly to the companies. And yeah, I agree with you. It seems like the biggest fix here, it's the thing that stood out for me, was we need to get those 19 states that actually prohibit community and municipal broadband involvement. We need to get those laws off the book.

Cindy Cohn:
Yeah, and I guess the good news/bad news about that is it seems very clear that everybody hates their broadband providers. They hated them before the pandemic, and the pandemic has just made it worse. So, as an activist organization, that's our opportunity. There's a lot of public support for making sure everybody's kid can get an education while staying safe. And that sense, I think, from a lot of people, that they've been ripped off by their broadband providers for a very long time. We need to harness that energy towards a movement to basically fix this, to give us the broadband that we deserve.

Danny O'Brien:
Well, on that slightly mixed note of taking people's hatred of broadband providers and turning it into political action, we should wrap up. Thanks very much, Cindy, and thanks to our guest, Gigi Sohn.

Danny O'Brien:
Thanks again for joining us. If you'd like to support the Electronic Frontier Foundation, here are three things you can do today. One, you can hit subscribe in your podcast player of choice, and if you have time, please leave a review. It helps more people find us.

Danny O'Brien:
Two, please share on social media and with your friends and family. Three, please visit eff.org/podcasts, where you will find more episodes, learn about these issues, and donate to become a member and lots more. Members are the only reason we can do this work, plus you can get cool stuff like an EFF hat or an EFF hoodie, or even a camera cover for your laptop. Thanks once again for joining us, and if you have any feedback on this episode, please email podcast@eff.org. We do read every email.

Danny O'Brien:
This podcast was produced by the Electronic Frontier Foundation, with help from Stuga Studios. Music by Nat Keefe of BeatMower.

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