December 2012

The Senate Commerce Committee held a hearing to explore the nominations of appointees, including current Federal Communications Commission member Mignon L. Clyburn and proposed Federal Trade Commission member Joshua D. Wright.

Committee Chairman Jay Rockefeller (D-WV) said, “President Obama has re-nominated Federal Communications Commissioner Mignon Clyburn to another term. This Committee favorably reported her nomination back in 2009, and I am glad that she is willing to serve in this important position for another term. I have always urged Commissioner Clyburn and the other commissioners to approach their work at the FCC with a few simple values: they should protect consumers, promote competition, and make sure that all Americans – including Americans who live in rural places like West Virginia – have access to an up-to-date, affordable communications network. I know she shares these values and look forward to hearing from her about where she thinks the Commission will be going over the next few years.” Senate Democrats, led by Sen. Maria Cantwell (D-WA), threatened to pass a resolution of disapproval over the FCC’s media ownership rules, currently under circulation at the agency. Mentioning her newspaper experience, Commissioner Clyburn told the Senators that at her request, the FCC opened up a comment period on the FCC’s broadcast minority report, which showed minority ownership at radio and TV stations was low. “Diversity and media are what I lived and breathed,” Commissioner Clyburn said. The GOP also had a message to send to the FCC about its attempts to regulate the Internet. Sen. Kay Bailey Hutchison (R-TX) who is retiring from the Senate, told Commissioner Clyburn the FCC’s network neutrality rules “seemed like an overreach.” Sen Hutchison wanted to know if the FCC would seek to reclassify the Internet to impose “common carrier regulations.” Commissioner Clyburn dodged the question, responding she would keep an open mind. “I am not comfortable commenting on a pathway forward,” Commissioner Clyburn said.

On Wright’s nomination, Chairman Rockefeller said, “Our final nominee is Josh Wright, who is a law professor at George Mason University. He has been nominated to be a commissioner at the Federal Trade Commission (FTC), the federal government’s most important consumer protection agency. Mr. Wright is a very accomplished young scholar. He has written extensively on antitrust and other issues that would likely come before him as an FTC Commissioner. In his academic writing – some of which has been funded by groups with a clear anti-regulatory agenda – Mr. Wright makes it very clear that he believes that market forces can solve almost any consumer protection problem. While it is easy to espouse ideas like this from the academic ivory tower, serving as an FTC Commissioner is a very different job. As a commissioner, his job will be to enforce the law as it is written, not as he theorizes it should be. In the real world, some business practices hurt consumers and his job is to protect the consumers, not make excuses for the businesses. I look forward to hearing what he has to say on this subject.” Wright said he would recuse himself from any law enforcement action involving Google for 2 years. Wright, a George Mason University professor, was co-author of a paper in 2011, "Google and the Limits of Antitrust: The Case Against the Case Against Google," defending the company. Wright would not commit to recusing himself beyond that timetable, but Sen Cantwell said she wanted him to give her that answer at a follow-up to the hearing. Sen Barbara Boxer (D-CA) said she appreciated that, but wanted a list of the companies who might have business before the FTC that had supported his work so she could get a sense of what he could rule on. Wright was also asked to give follow-up answers on his view of FTC do-not-track and notice and choice proposals.
Chairman Rockefeller intends for the committee to vote on the nominations next week.

[Commentary] Verizon takes the prize for most outrageous claim of a First Amendment right. Its challenge to the 2010 Federal Communications Commission rule that requires an open Internet - effectively preventing the companies that provide online connections from censoring or favoring content - as an abridgement of Verizon's free speech. If Verizon's argument as presented to a federal appeals court holds, then the constitutional guarantee of "free speech" suddenly would include the right to suppress someone else's ability to transmit or receive information.

Verizon's argument, absurd on its face, veers to the bizarre when it tries to compare the role of broadband service provider to that of a newspaper. Verizon suggests in its federal court filing that broadband providers possess "editorial discretion" - and should be free to feature some content over others, or exclude content, just as a newspaper decides what is and is not fit for publication. Such an argument, of course, misses the essence of the Internet, which is to allow the user to act as his or her own editor in deciding what is of interest. Here's the twist: Verizon clearly knows better. Its joint statement with Google about the prospect of open-Internet rules in early 2010 stated: "The minute that anyone, whether from the government or the private sector, starts to control how people access and use the Internet would be the beginning of the end of the 'net as we know it."

Roger Ailes, the longtime Republican media guru, founder of Fox News and its current chairman, had some advice last year for then-Gen. David H. Petraeus. Ailes asked a Fox News analyst headed to Afghanistan to pass on his thoughts to Petraeus, who was then the commander of U.S. and coalition forces there. Petraeus, Ailes advised, should turn down an expected offer from President Obama to become CIA director and accept nothing less than the chairmanship of the Joint Chiefs of Staff, the top military post. If President Obama did not offer the Joint Chiefs post, Petraeus should resign from the military and run for president, Ailes suggested.

The Fox News chairman’s message was delivered to Petraeus by Kathleen T. McFarland, a Fox News national security analyst and former national security and Pentagon aide in three Republican administrations. McFarland said that Ailes — who had a decades-long career as a Republican political consultant, advising Richard M. Nixon, Ronald Reagan and George H.W. Bush — might resign as head of Fox to run a Petraeus presidential campaign. At one point, McFarland and Petraeus spoke about the possibility that Rupert Murdoch, the head of News Corp., which owns Fox News, would “bankroll” the campaign.

Twenty-four hours after Facebook opened the polls, more than 100,000 users have cast their votes 10 to 1 against Facebook's proposed changes to its policies. That includes a proposal that would do away with Facebook users' right to vote on future changes.

Hoping to get out the vote, the Electronic Privacy Information Center and the Center for Digital Democracy have joined forces with Facebook critic Julius Harper. They say they are campaigning to raise awareness about the vote. "We are making good progress," said Marc Rotenberg, executive director of the Electronic Privacy Information Center. Most Facebook users don’t seem to know that a vote is taking place.