Sovereignty: The Race to Regulate, Putting Consumers First as Communications Technology Emerges.

• Author: Clark, Justin
• Position: Annual Symposium Issue

TABLE OF CONTENTS JUSTIN CLARK--IS THERE FREEDOM OF CONTRACT IN THE AGE OF NATIONWIDE COMMUNICATIONS NETWORKS? 304 SEAN DAVIS JR.--THE HOW AND WHERE OF REGULATING COMMUNICATION TECHNOLOGY? 306 MORGAN RUCKER KENNEDY--THE FEDERAL TRADE COMMISSION PROTECTS CONSUMERS AS COMMUNICATIONS TECHNOLOGY EVOLVES 308 GRANT NELSON--FEDERAL. STATE, AND SELF-REGULATION STRATEGIES FOR DATA COLLECTION & USE 311 TRAVIS LEBLANC--SOVEREIGNTY DISRUPTED 314 Is There Freedom of Contract in the Age of Nationwide Communications Networks?

When the First Responder Network Authority Board of Directors ("FirstNet") was established in 2012, Congress touted it as a way to encourage greater interconnectivity between multiple first responder agencies and facilitate communications in a time of crisis. (1) FirstNet is an independent authority within the Department of Commerce National Telecommunications and Information Administration responsible for constructing a nationwide public-safety broadband network. (2) In March 2017, FirstNet created a public-private partnership with AT&T to build out, operate, and maintain the Nationwide Public Safety Broadband Network. (3) Apart from issues of resource priority and insufficient network coverage in rural areas, (4) the very process of FirstNet's selection of a nationwide service provider has been criticized by some practitioners. (5) The chief concern with the partnership between FirstNet and AT&T is that the details of the service agreement were largely a mystery, specifically, how gaps in network coverage would be addressed by states and which types of dispute resolution mechanisms would be used between FirstNet and AT&T. (6) Although the governors of all 50 states have now accepted FirstNet's proposed partnership with AT&T, (7) the concerns around the contract negotiation process and the absence of state involvement in vetting, selection, and negotiation of service provider terms loom large promising to plague future public-private partnerships in the area of spectrum development. These concerns are a further bi-product of the Federal Acquisition Regulation ("FAR"), and whether such a program should be used for other wide-scale communication projects moving forward. (8)

There are compelling arguments for why the decision on constructing a national first responder communications infrastructure should be handled through a framework like FirstNet. (9) However, the unique challenges of bringing together a myriad of law enforcement agencies at the local level, some of which have already developed their own localized system and do not have the opportunity to review the terms of the agreement, appears to create a need for a new procurement and development process. (10) The real culprit in all of this appears to be the strictures of FAR itself, a series of taxing rules governing the negotiation and administration of contracts between executive agencies and private third parties. (11) To open up negotiations and give state and local law enforcement authorities the opportunity to review the terms of a public-private partnership to develop a broad-reaching system, the FirstNet founding board might have considered using alternative means for soliciting bids and negotiating a contract. One such framework used by the Departments of Defense and Homeland Security in some of their fulfillment contracts is the "Other Transaction", an alternative instrument available for research and development efforts with certain agencies where traditional procurement laws and regulations are too burdensome. (12) Using such a regime may provide benefits in transactions involving multiple parties where cost-sharing and advancing dual-use technologies are key concerns. (13)

The creation, development, and administration of FirstNet could serve as a key lesson for other projects involving use and development of the spectrum, particularly as to how service providers are selected and how those providers negotiate contract terms with the numerous parties involved. Most importantly, Congress should consider the concerns of state and local governments and how these governments can be part of the contract negotiation and roll-out process.

The How and Where of Regulating Communication Technology?

In today's era, communication technology is emerging as a pillar in American society and economy. From artificial intelligence to social media platforms, tech focused companies are growing in social relevance and market space. For example, Facebook and Google, two of Silicon Valley's titans are expected to take half of the internet advertising revenue worldwide and over sixty percent in the U.S. (1) Further, with the recent rollback of open internet protections, many in congress have made net neutrality a campaign issue, (2) subsequently placing telecomm issues at the forefront of the American conscious. Other issues, such as the repeal of broadband privacy (3) begs a pertinent question: who is best suited to regulate communication technology and relevant innovations? Touching on a myriad of anti-trust and civil rights issues, technology such as social media algorithms or driverless cars creates complex legal issues that are heavily debated.

The answer to these questions although complex, are not far off. First, it is critical that regulatory bodies such as the Federal Communications Commission, the Federal Trade Commission, and the House Subcommittee on Communications and Technology acknowledge that there is a spectrum of communications technology that requires varying degrees of regulation. For example, Silicon Valley Titans such as Facebook and Google have monopolized the online advertising market (4), while subsequently being questioned for their mishandling of extremist content on their platforms (5). Given their relevance in both American society and economy, placing sensible regulations on Facebook and Google's online advertising power and screening of user content is pertinent. On the other end, communications technology associated with artificial intelligence is in a developing stage, which would easily be stifled by too much regulation. However, there are steps that can be taken to address such tech without stifling innovation. One such example is the Future of Artificial Intelligence Act of 2017. Sponsored by Senator Maria Cantwell, the Act would name the Department of Commerce responsible for creating a committee to provide recommendations on how businesses and government can come together to: (1) create reasonable legislation on artificial intelligence (AI); (2) support developmental AI ventures and protect the rights of consumers as AI continues to grow. (6) Legislation such as this shows forward thinking and recognition that communications technology is a multifaceted market that has the ability to usher the U.S. into a new economic revolution.

The Federal Trade Commission Protects Consumers as Communications Technology Evolves

Communications technology has greatly expanded the scope of connectivity in everyday life. Consumers are no longer just connecting to the Internet through a desktop computer or home modem. (2) Instead, consumers are connecting through, among other things, mobile phones, wearables, refrigerators, thermostats, televisions, and vehicles. (3) While these technological innovations have provided revolutionary benefits to the...