Free Speech Law: Are Big Changes Possible?

You might think our understanding of the First Amendment to the U.S. Constitution is unambiguous. It is not. “The outstanding fact about the First Amendment today is that the Supreme Court has never developed any comprehensive theory of what that constitutional guarantee means and how it should be applied in concrete cases,” argued Thomas Emerson. 

What the First Amendment means, in other words, is far from “settled law” (precedent). It tends to develop on an ad hoc basis, rather than flowing from a comprehensive framework, Emerson notes. 

Right now, a growing concern in some quarters is how freedom of expression is protected not from government action but by the actions of platforms. Indeed, some call for greater restriction of free speech on platforms, in the name of so-called hate speech. Others say the restrictions are not equally applied to all speech, and result in the suppression of some political ideas. 

If we assume that the purpose of the First Amendment is to protect freedom of expression in a democratic society, then new media formats and new platforms can raise new issues. And, as is common, the matter is complicated. 

The First Amendment has generally been interpreted to protect the rights of “speakers. But the owners of new platforms (social media, in particular) say their users are the “speakers,” not the platforms. 

That is the basis for Section 230 of the Telecommunications Act of 1996. The act protects platforms from liability for what is said by users of their platforms. “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” the Act states. 

In other words, users are the speakers, not the platform. That could have profound implications. 

The owners of platforms do not lose their corporate right of free speech as private entities, but the matter of free speech is complicated when the platforms themselves do not claim to be speakers.

The bigger issue might ultimately be that the First Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Traditionally, citizens are to be protected from government restriction of free speech. 

But the places where “speech” occurs also matter. Public forums--such as public parks and sidewalks--have always been viewed as places where citizens have the right of free speech. 

Nonpublic forums are places where the right of free speech can be limited. Examples are airport terminals, a public school’s internal mail system or polling places. 

In between are limited public forums, where similar restrictions on speech are lawful, especially when applied to classes of speakers. However, the government is still prohibited from engaging in viewpoint discrimination, assuming the class is allowed. 

The government may, for example, limit access to public school meeting rooms to school-related activities. The government may not, however, exclude speakers from a religious group simply because they intend to express religious views, so long as they are in a permitted class of users. 

Those protections have been limited to state action, It is government entities (local, state, or federal) that are enjoined from infringing the right of free speech. Protections have not been deemed applicable to private entities.

There has generally been in other words, no First Amendment right of free speech enforceable on private firms or persons, with some exceptions. 

Common carriers--such as telcos--must allow communications between any users who are willing to pay the tariffs. Telcos cannot censor what those users say. Such regulation--including public accommodation, water and electrical utilities or railroads--is not generally regarded as a direct “free speech” issue, but an issue of commerce.

A common carrier is a person or company that transports goods or people for a fee, the principle being non-discrimination. A common carrier must provide its service to anyone willing to pay its fee, unless it has legitimate grounds for refusal.

If state governments decide to create laws protecting free speech from social media or other private firms, that would at the very least raise an issue: Can the federal government, acting under the guise of the First Amendment, move to restrict state action extending the zone of free speech to include dominant private platforms? 

That might involve a novel regulation of social media platforms as common carriers of a sort. That would plow new ground, but First Amendment law has evolved over the years in an ad hoc way, all along.

Lumen Outlines Where it Will Invest, Where it Will Harvest

Lumen Technologies has a clear understanding of where its revenue growth is to be found. Lumen earns most of its revenue--up to 75 percent or so--from business customers, so it makes sense to look for revenue growth in international enterprise operations, IP data services including edge computing, transport and apps supporting transport. 

source: Lumen Technologies 

Consumer and small business revenue growth (mass markets) will come almost exclusively from broadband access services. 

The wholesale, voice and rural operations are not seen as growth vehicles and essentially will be harvested. Note that Lumen is not a supplier of mobility services, so that is not a growth option. 

Every connectivity provider with multiple customer segments and products has to make similar decisions about where growth is to be found and where investments are to be made. 

Conversely, every business has to know which lines of business are declining and have to be managed for decline.

Post-Pandemic Connectivity Revenue Assumptions Might Change

Many would note that the economic stress created by government shutdown of large portions of the economy, and other public health safety measures, have damaged small business and helped big business. To be sure, those trends were already in place, but were magnified by the government response to the pandemic. 

That impact should be seen in many areas of the communications business as well, where other pressures--especially the growth of competition--were in place even before the pandemic. 

Bharti Airtel, long one of India’s largest mobile service providers, says it has survived several near-death experiences. After three or four crises, Airtel now operates in a market with “2.5 providers.” Just several years ago, Airtel operated in a market with about 10 competitors. 

Big companies with scale are likely to emerge, post pandemic, with more market share than they had going into the crisis, while many smaller businesses will have ceased to exist. Consolidation, of course, is not new in the connectivity business. But the pandemic arguably has nudged the process a bit. 

None of that is going to stop researchers from predicting post-pandemic growth. But markets likely will have been reshaped. 

To look only at the hospitality segment, estimates of restaurant bankruptcies and closures ranging from 30 percent to 60 percent in some countries and areas, the base of potential customers for connectivity services is going to drop. 

Other small and independent retailers likely will face similar pressures, as more market share will shift to giant online retailers and chains. So we will have to be more nuanced in our reading of “growth” forecasts. A return to growth will happen, but on a base of establishments that might be permanently lower. 

source: Analysys Mason 

Unknown at this point is the effect on enterprise connectivity spending as hybrid work patterns are established. Most believe large enterprises will need less office space than in the past, as fewer people will be congregating at such sites. 

That might soften direct enterprise connectivity spending at sites. The impact on employees working from home is not clear, either. Most information workers pay for broadband and mobility service for other reasons than work, and those existing connections can be used for work-from-home purposes, generally with little increased cost, if any. 

So long-term impact on connectivity provider revenues is not clear. Direct demand might be lower in urban areas for a couple of reasons. Firms will downsize. Fewer people will work at offices full time, with ripple effects on other businesses in those areas. 

With fewer people commuting to urban areas, mobile-related behavior will change as well, generally in the direction of less usage while traveling. Less business travel is expected, slowing the growth of roaming revenue. 

Arguably, more international communications will use over-the-top apps and services that limit the growth of carrier revenues from international long distance or messaging. 

Though more people will be working from home, more of the time, the whole point of multi-purpose networks and internet-based services is that the additional work-related bandwidth or capacity might not be very relevant. 

Most consumer bandwidth supports entertainment video, so all work-related additional load will barely be noticed. 

Service providers will have to watch--and adjust--capacity investments. Less capital investment growth will be needed in urban cores, as demand will moderate. In suburban areas, there is likely to be more demand for upstream bandwidth, however. 

Perhaps oddly, in some markets suppliers are pushing “unlimited data usage” plans precisely at the point that work-from-home trends make the value less obvious. More WFH means less bandwidth consumption when out of the home. In the home mobility usage will shift to Wi-Fi instead. 

But bandwidth demand is largely driven by entertainment video, not WFH demands, which are relatively low bandwidth, in comparison. 

The point is that prior assumptions about revenue and growth might have to be revised in light of relatively important shifts in end user connectivity demand.

Survey Finds 58% Believe Covid-19 Pandemic Will be "Over" By 2nd Quarter 2022; Rest Think it Take Longer

About 58 percent of respondents to a survey conducted by Ipsos for the World Economic Forum believe the Covid-19 pandemic will be “over” within a year. Of course, that also means more than 40 percent believe the pandemic will not be over “within 12 months.”

With the caveat that the survey reflects consumer beliefs, and is not a direct measure of what governments will do, and when, that will likely affect any business operating trans-nationally, to say nothing of continued impact within any single country. 

source: Ipsos 

The survey finds that, on average, across 30 countries and markets surveyed, 59 percent expect being able to return to something like their normal pre-COVID life within the next 12 months. So possibly May 2022. That still leaves 41 percent believing the pandemic will not be “over,” with “normal” life reestablished, until sometime in the second quarter of 2022 or beyond. 

source: Ipsos 

More than 70 percent of respondents in Saudi Arabia, Russia, India, and mainland China are confident their life will return to pre-COVID normal within a year. In contrast, 80 percent in Japan and more than half in France, Italy, South Korea and Spain expect it will take longer.

Rogers Acquisition of Shaw is Not Mostly About 5G

The proposed acquisition of Shaw by Rogers Communications in Canada is touted by Shaw as benefiting 5G deployments. As with all acquisitions, participants say what they believe regulators want to hear. 

Some would argue the deal is about revenue growth in a tough market, not 5G. 

Growth in the fixed networks business is slower than that in the mobility business and most of the revenue is now earned in the mobility business, not the fixed business. Revenue growth in the global business now is around one percent per year, with capex tracking revenue, also growing at about one percent per year. 

Global connectivity supplier capital investment (mobile and fixed) is projected to grow at a one percent compound annual growth rate between 2019 and 2022, according to the Dell’Oro Group. Other forecasts call for a decline in capex after 2022, as 5G and fiber investments to support 5G and fixed network broadband projects are completed. 

source: Orange

source: Dell'Oro Group

Shaw is not a player in mobility, nor is its growth upside in the fixed networks segment so favorable, either. There comes a time to sell an asset, and Shaw executives clearly believe now is the time. 

So 5G deployment is pitched by Shaw as the rationale behind the deal. 

The Covid-19 pandemic has generally had a depressing effect on connectivity service provider revenue globally, with a few exceptions in a few markets. But the underlying trends were in place before Covid hit. 

Longer-term trends remain at work, namely slow growth rates. 

source: IDC 

And that is why Shaw executives have made the decision to sell.

AR and VR Will be Used to Support UCaaS

Augmented and virtual reality will be applied to unified communications as a service, says Business2Community, likely being used for data visualization, storytelling, and contact center visual customer service interactions.

source: Statista 

That should come as no surprise as unified communications, then UCaaS came to embrace video conferencing, for example.

Roll Away The Stone

My favorite Easter song, sung by the choir at St. John Neumann, in Reston, Virginia

Huge Revision of Satellite Service Revenues Based on Mobile Backhaul

Some rules of thumb related to connectivity service provider revenue exist simply because use cases are fairly stable over time. In other cases future use cases are not predictable, leading to sometimes wild fluctuations in revenue forecasts. 

The global connectivity service provider market, for example, is relatively stable, growing slowly to about $1.2 trillion euro in annual revenue (about $1.4 trillion) in the 2020s, adding about one percent a year. Satellite service revenues were about $123 billion in 2029, or roughly nine percent of fixed service provider revenues. 

That does not seem to change much, from decade to decade, so the latest forecast of as much as $25 billion for backhaul implicitly includes attrition of other revenues, such as video entertainment distribution revenues. 

Some estimate satellite backhaul revenues will grow to about $25 billion by about 2030, according to Northern Sky Research.  That is a dramatic upward revision since about 2018, when satellite backhaul was estimated to reach something closer to $3 billion in annual revenues by 2027. 

source: Northern Sky Research 

If that happens, it will be because of satellite backhaul for remote mobile network cell towers, it is safe to say. Earlier forecasts had suggested a maximum of cumulative revenues as high as $39 billion between 2019 and 2029. 

Will Common Carrier Precedent Might be Applied in New Ways?

Though the notion stands regulation on its head, we might be nearing a point in U.S. regulation of online media and communications--especially the regulation of platforms--that borrows concepts from common carrier regulation. 

It will not be easy, and might require some new developments in legal thinking. But that happens, from time to time, even in a profession that relies so heavily on precedent. 

Past actions that apply free speech obligations to private actors have used an analogy to a public square, though rarely with much success. The issue now is whether the digital public square argument gains currency.  

Simply, most people might agree that the essence of “free speech” on any major platform for social media, content or even search is that anyone may publish at will, as was among the founding principles of the internet itself. 

We might also agree that competition is a better framework than regulation, but also might agree that regulation is an option if all other frameworks prove problematic. 

For perhaps a century, “free speech” and “common carrier” regulation of industries have been defined largely in terms of the rights of “speakers.” For media, free speech has been viewed as a right possessed by owners of printing presses, TV or radio stations, content studios, other print media, cable TV systems and now internet platforms for search, social media and commerce. 

Customers of “utility” services, on the other hand, have generally been seen as the possessors of the “free speech” right, to the extent political speech is involved at all. “Common carrier regulation” has been the rule for railroad, electricity, gas, water and telecom firms, for example. 

A common carrier. must provide its service to anyone willing to pay its fee, but has not generally applied to the media. 

New communication or media formats tend to be regulated using older and existing models. That almost always poses big issues, as new media and communications formats often cannot--or should not--be regulated using older models. 

Live performance, movie theaters, broadcast television and radio, cable TV and streaming video might provide one set of examples. 

Pamphlets, newspapers and magazines, online media and social networks might provide additional examples. Regarding free speech protections, there are several important distinctions. Jurists must decide whether the “right of free speech” is for the speaker or the listener. 

It is complicated. First, the First Amendment protects “owners of publishing assets,” not citizens, from government prohibitions. What is new in the internet era is the power of private entities (platforms) to silence speech, when historically this problem was seen as a potential problem caused only by government entities. 

Among the new questions is which form of regulation best protects political free speech. Ironically, our older notions may be out of date. 

Historically, the right of free speech belongs to the owners of publishing or communication assets: printing presses, content creation entities such as magazines or movie studios, broadcast stations, cable companies and social media, search or other online media firms. 

Other entities--viewed as platforms--have not been held to have “free speech rights” and have been regulated as common carriers. Railroads, electrical utilities, water supply companies and telecommunications firms come to mind. In other words, “communication” or “public utility” networks have not been considered “speakers with First Amendment rights.” 

“Federal law dictates that companies cannot ‘be treated as the publisher or speaker’ of information that they merely distribute,” Thomas says. To be sure, legal precedent does not regard a digital platform as a “common carrier.” But it remains unclear whether this would remain the case if Congress were to pass laws applying some common carrier principles on digital platforms. 

Even when looking solely at the rights of “speakers,” there is a distinction between the rights of business owners “as business owners” and the rights of “speakers on platforms.” In other words, Facebook has the right to advocate in its own interests. 

That, however, is arguably a different matter from the rights of users of its social media platform to express ideas. 

“If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude,” says a ruling by Supreme Court Justice Clarence Thomas. 

 “Historically, at least two legal doctrines limited a company’s right to exclude,” he says. “First, our legal system and its British predecessor have long subjected certain businesses, known as common carriers, to special regulations, including a general requirement to serve all comers.” 

“Second, governments have limited a company’s right to exclude when that company is a public accommodation,” Thomas notes. “There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.”

Historically, that argument has been tough to apply; tougher to extend. But precedents sometimes aer overturned. We might be heading that direction.

Maybe Covid Will Not Have Lasting Significant Impact on Connectivity

One hears much casual talk about permanent changes caused by Covid-19 lockdowns or work from home policies. Where it comes to use of communications capabilities, however, there is some evidence that the impact was quite transitory. 

Data gathered by Ofcom shows that use of the internet climbed in February 2020, but by October 2020 was down to pre-pandemic levels. Most casual statements note the sudden surge in demand as the lockdowns began. Few seem to note that demand has returned to pre-pandemic patterns. 

source: Ofcom 

Some argue that mobility usage climbed during the pandemic. Ofcom data suggests quite the opposite. As you might expect, people confined largely to their homes spent less time connected to the mobile network. 

People were not traveling outside their home areas so much. That is why roaming revenues dropped for virtually all mobile operators. 

source: Ofcom 

In other ways, mobile phone behavior was, in fact, not changed by the pandemic. Many casually make the argument that the pandemic “proves” the value of connectivity. It was important; it is important. But it might not be significantly more important, post-Covid. 

Demand in urban office areas is likely to drop, as more people spend more time working from home, on a permanent basis. There will be some upgrading of connections in suburban or rural areas. But internet access was vital before the pandemic. It did not suddenly become more important because of the pandemic, though the places people used the internet did shift (from office to home; from school to home).

There was less use of mobile phones on the mobile network between March and October of 2020, as more people were confined largely to home, and used Wi-Fi connectivity. 

Nor did calling behavior change. “Our crowdsourced data showed that 75 percent of panellists made a call in the first 11 weeks of the year, and 78 percent of panellists made or received a call,” Ofcom says. “There was no significant change in these proportions between pre- and post-lockdown.”

The impressionistic sense that “communications must be more important” is not necessarily borne out by the facts. It is similar to the anecdotal comments all of us have heard about “communications proving its value,” along with a belief that “communications firms must be making more money because of that.” In fact, most service providers saw revenue dip during the March to December 2020 period, for obvious reasons.

Economic activity was suppressed by government orders. And less economic activity, as in any recession, stifles communications revenues. 

There are likely to be permanent changes because of the pandemic. But a dramatic and permanent leap in communications industry revenues or growth rates is unlikely. 

In fact, there will be some downward pressure on demand, as urban office space begins to go unused. Fewer people working “downtown” means less bandwidth demand. Fewer people at work also means less demand for all surrounding merchants. Those merchants are also likely to require less bandwidth or connectivity demand. 

Bandwidth demand overall will likely keep growing, at past rates. But the pressure is not all “up.” There will be some redistribution of “work” demand to residential areas. But the key driver of residential broadband demand is entertainment video, not use of work apps. 

That will ripple through network planning assumptions, at the very least, even if revenue impact is relatively neutral. What seems to be developing is a rather temporary Covid impact on capacity demand and user behavior. In other words, Covid might, in the end, not have very much impact on connectivity revenue or demand. 

Usage grows every year, irrespective of temporary events. More people watching more video streaming is going to affect usage more than did Covid.

Lumen Analyst Day 2021

It is long, but provides more color on Lumen's strategy than there is time to present at a quarterly earnings call. Useful is what one can glean from the mix of lines of business that are being harvested, versus the lines that are getting investment. 

Big Firms Benefitted from Covid-19, Small Firms Did Not

The Covid-19 pandemic has battered small firms much more than hyperscalers or “large, superstar firms,” McKinsey data suggests. Between the third quarters of 2019 and 2020, “large superstar firms lost no revenue” while competitors experienced a decline of 11 percent, McKinsey says.

Looking at a range of revenue-related metrics and information technology investment, McKinsey researchers found that “advances appeared concentrated among large superstar firms, particularly in the United States.”

“This was true across many sectors, but particularly pronounced in professional, scientific, and technical services, IT, electronic manufacturing and healthcare,” McKinsey notes. 

source: McKinsey

The McKinsey analysis included items such as spending on research and development, investment, mergers and acquisitions activity as short-term proxies for the range of potential drivers that could accelerate productivity. 

The issue is what happens longer term as applied technology either does, or does not, positively affect revenue growth. A productivity paradox has existed in the past, where increased information technology spending does not produce a measurable increase in productivity. 

“Before the pandemic, productivity growth had not always fully translated into broad-based growth in wages and consumption,” McKinsey notes. 

Beyond that, the impact of “technology for labor” shifts “could, over the longer term, dampen employment and incomes, and hasten labor-market polarization and propensity to spend,” McKinsey says. 

The point is that after a short-term economic rebound driven by economic reopening, longer term economic growth is not so clear. We should see growth, but how much is less clear. Many ICT investments operate on the cost side of the business model, not necessarily the revenues side of the model. 

But cost for one entity always is revenue for another. Substituting machines for labor often is good for firms, but bad for employees and therefore reduces aggregate demand. Higher productivity is seen as a good thing. 

Whether recent investments produce higher productivity remains to be seen. Whether such gains outweigh potential negative changes in demand is another question.

Implications of GDP Damage Worse than Great Depression, Far Worse than Internet Bubble or Great Recession

For those of you who lived through the internet bubble burst in 2001 and the Great Recession of 2008, the Covid-19 pandemic exceeds the economic damage by quite some scale, surpassing the carnage of the 1929 Great Depression. 

We all seem to sense that many changes in business and personal life will be permanent, post-Covid. Enterprise executives indicate big changes are coming. 

source: McKinsey 

Remote work environments seem to have encouraged “output oriented” work flows and may have enabled faster decision making, McKinsey reports. Hybrid work situations are expected to become permanent, while “site agnostic” employee sourcing will increase, along with possibly 35 percent to half of all existing office space to be shed over the next two years. 

source: McKinsey 

McKinsey argues that geographically “distributed work” produces more value than “remote work.” And those are not even the most important implications enterprises must consider. The “recovery” from the crisis will not follow patterns we have seen in prior economic downturns. 

So a new operating model will be necessary. The need for agility no longer will be a nice to have organizational capability, but might be a requirement. Business will run about four times faster than in the past, making “three months the new year.”

source: McKinsey 

New threats and opportunities might well be the new reality as well. That might well include a change of revenue sources and business models.

Lots of people talk about disruption. Not so many have actually had to face it. Many more might get their first chance to do so.

Why Millimeter Wave Matters

Propagation issues notwithstanding, millimeter wave frequencies will be vital for mobile operators. The pressure to achieve lower cost per delivered bit will not cease, forcing service providers to continually deploy new solutions for bandwidth with a lower cost per bit profile. 

Millimeter wave does that. Eventually, so will teraHertz frequencies. 

 

source: GSMA Intelligence 

To be sure, 4G capacity increases will continue for a while. Eventually, though, 4G runs out of gas. Fundamentally, that is why 5G is “necessary.” Beyond all the other new use cases enabled by vaster-lower latency, core network virtualization or 5G-enabled edge computing or internet of things, 5G will supply bandwidth at lower costs than 4G networks. 

Cost per bit matters because customer bandwidth demand grows as much as 40 percent a year, while consumer willingness to pay is limited, essentially remaining flat, year over year. 

If access providers must supply 40 percent more bandwidth per year, while revenue grows one percent per year, bandwidth efficiency must increase significantly. That is the value of millimeter wave spectrum. 

That need for efficiency would be true if access providers owned all the apps used by their customers. In the internet era, access providers own almost none of the apps used by their customers. 

So connectivity providers generate relatively small amounts of revenue from applications they own, and at the same time must supply bandwidth for third party apps at prices their customers consider fair. 

In that context, since most of the bandwidth consumed is video entertainment, and since video is the most bandwidth-intensive app, prices per bit must be low, and constantly get lower. Video economics are dominated by the fact that users will not pay very much for video entertainment, in relation to the bandwidth consumed to support its use. 

For owned apps, revenue per bit for messaging and voice can be as much as two or more orders of magnitude higher than for full-motion video or Internet apps. By some estimates, where voice might earn 35 cents per megabyte, revenue per Internet app might generate a few cents per megabyte. 

The cost of consuming a bit is infinitesimally small. Assume an internet access plan costing $50 a month, with a usage allowance of a terabyte. That, in turn, works out to a cost of about $0.000004 per byte. And even that cost will have to keep dropping. 

The reason is that consumer propensity to pay is only so high. Essentially, internet service providers must continually supply more bandwidth for about the same prices. 

source: GSMA Intelligence