May 2013

[Commentary] Tom Wheeler, President Obama’s nominee to run the Federal Communications Commission, surely has much he hopes to get done. Perhaps it’s freeing up some more wireless spectrum or bringing cell-phone service to Mars—who knows. But chances are (assuming his confirmation goes smoothly) that he’ll end up spending time on different challenges, and a chief candidate is a resurgence of the network neutrality wars.

The outgoing chairman, Julius Genachowski, made many very good and important decisions, but he also made a rather terrible one that may darken Wheeler’s term. Chairman Genachowski spent years and much political capital negotiating network neutrality rules that everyone could live with, only to enact them in a way that is highly vulnerable to a court challenge. That challenge (brought, cynically, by Verizon after it negotiated the rules it wanted) may soon invalidate years of work and create industry chaos. Wheeler and the other members of the Federal Communications Commission will be very tempted to try and avoid and ignore network neutrality during President Obama’s second term. If, magically, the rules aren’t struck down, they will have that luxury. But if the rules are struck down, avoiding the problem may lead to a replication of the horrors of the cable-television market. There’s trouble brewing; facing it is both the Commission’s responsibility and its destiny.

Coca-Cola is making major promises to fight obesity – ceasing advertisements directed at kids, slapping calorie counts on all its packaging – as the soda giant stares down a rising tide of concern over sugar-stuffed beverages. But the part of Coca-Cola’s pledge likely to get the most attention is the promise not to market to audiences where children under age 12 make up more than 35%. The company has often said in the U.S. that it does not buy advertising directly targeting such demographics, but now appears to have expanded the policy globally. Commercials on television, radio, print, the Internet and mobile phones are all affected. It’s unclear what will become of the cuddly polar bear Coca-Cola likes to employ in its advertising.

Academic, author and network neutrality rule skeptic Christopher Yoo said that he is not a candidate for the FCC Republican seat being vacated by Robert McDowell, at least not now.

Sources had said that Sen. Mitch McConnell (R-KY), who is vetting candidates for the post, was looking at academics, and one source said Yoo's name had surfaced as one of those. Yoo confirmed there had been interest. Yoo indicated he was flattered but not interested, at least not for the moment. "Others have suggested my name," he wrote. "[W]hile I am flattered, I have asked McConnell's staff not to consider me for a position as FCC Commissioner at this time." Among the names still said to be in the hunt for the seat are Michael O'Reilly, a top staffer with Sen. John Cornyn (R-TX), and Ray Baum, a former Oregon Public Utility Commission chairman and current top adviser to House Communications Subcommittee Chairman Greg Walden (R-OR).

Apple, taking its patent fight to Google through its infringement litigation against Samsung, is asking a judge to force Google to turn over documents related to its Android operating system.

Apple told U.S. Magistrate Judge Paul S. Grewal in San Jose, California, that Google is improperly withholding information about what terms it’s using to find the documents Apple has requested in pretrial information sharing. Apple, as part of its second patent-infringement lawsuit against Samsung in the same court, argues that Android is used in all of Samsung’s allegedly infringing products and “provides much of the accused functionality” in Apple’s claims, according to a court filing. “It’s a question of transparency,” Mark Lyon, a lawyer for Apple, told Judge Grewal, referring to the documents. “We have concerns that they’re not doing a full search.” The dispute over evidence gathering comes in the case filed last year by Cupertino, California-based Apple covering technology in newer smartphones made by both companies, including its iPhone 5 and Samsung’s Galaxy S III. Matthew Warren, a lawyer for Google who also represents Samsung, told Judge Grewal that Apple made a “strategic decision” in filing its case “to keep Google off the complaint.” As a third-party to the case, Warren said, Google doesn’t have the same legal rights that Apple and Samsung have, in particular with respect to “reciprocal discovery.”