December 2016

Proposed telecom arbitration ban is bad law and bad policy

[Commentary] During the internet service provider privacy proceeding, Federal Communications Commission (FCC) Commissioner Mignon Clyburn teamed up with Sen Al Franken (D-MN) to call for a ban on arbitration clauses in consumer telecommunications contracts. They argued that such clauses “effectively lock[] the courthouse door” on customers and allow companies to evade responsibility for misbehavior. The proposed ban did not make it into the final privacy order, though FCC Chairman Tom Wheeler promised to open a new rulemaking proceeding on the issue in February.

Thankfully, the November election likely makes this threat moot. But because the issue is unlikely to go away, it is worth exploring why this proposed ban is both bad law and bad policy. That’s the subject of my most recent Perspectives article, published earlier in Dec by the Free State Foundation.

December 21, 2016 (Lifeline Problems; UK surveillance powers ruled illegal)

BENTON'S COMMUNICATIONS-RELATED HEADLINES for WEDNESDAY, DECEMBER 21, 2016

INTERNET/BROADBAND
   Lifeline Broadband Problems: Big Carriers Opt Out, Rural Carriers Struggle with Pricing
   Verizon should expand Lifeline broadband beyond FiOS territory, says National Hispanic Media Coalition
   FCC Offers Revised Alternative Connect America Cost Model Support - public notice
   New York Law School’s Advanced Communications Law Project Institute Releases Papers Updating Muni Broadband Projects [links to Benton summary]

SECURITY/PRIVACY
   Police Use of Phony Cellphone Towers Needs to be Reined In, Lawmakers warn
   House Encryption Working Group Year-End Report - press release
   Digital Advertising Company Settles FTC Charges It Deceptively Tracked Consumers Both Online and Through Their Mobile Devices - FTC press release [links to Benton summary]

TRANSITION
   Commissioners Pai, O'Rielly vow to gut network neutrality rules “as soon as possible”
   Trump confirms he met with Mexican tech billionaire Carlos Slim [links to Benton summary]
   When will Trump hold a press conference? [links to Hill, The]
   President-elect Trump doesn’t miss a beat as Twitter’s Media Critic in Chief - CJR analysis [links to Benton summary]

ELECTIONS
   The US has a long history of hacking other democracies - WaPo op-ed [links to Benton summary]
   E-mails between Clinton and top aide, but little else, spurred FBI to resume controversial probe [links to Benton summary]

WIRELESS/SPECTRUM
   FCC Releases Order on the voluntary Wireless Network Resiliency Cooperative Framework - public notice
   Expecting Money From The FCC Post-Incentive Auction? - CommLawBlog [links to Benton summary]
   AT&T Unveils AT&T Call Protect to Help Customers Manage Unwanted Calls - press release [links to Benton summary]
   Small Cell Forum and 5G Americas Focus on Technical, Regulatory Approach to Wireless [links to Broadband Breakfast]

CONTENT
   Tech companies ‘profit from ISIS,’ allege families of Orlando shooting victims in federal lawsuit [links to Benton summary]
   Facebook introduces live audio streams in partnership with the BBC [links to Benton summary]
   Mark Zuckerberg builds an artificial intelligence assistant to run his house — and entertain his toddler [links to Washington Post]
   The year in online harassment: 2016 sunk lower than rock bottom [links to CNN]
   Facebook’s confusing hate speech policy detailed in leaked documents [links to Verge, The]

JOURNALISM
   Poll: 49 percent of Trump voters believe it should be easier to sue the media [links to Benton summary]
   Victory! Coalition Stalls Gov Christie's 'Revenge Bill' Designed to Decimate NJ Newspapers [links to Free Press]
   Lessons from local reporter on Trump’s Carrier deal: Access isn’t everything [links to Columbia Journalism Review]
   Twitter will hand over data on the user who sent a seizure-inducing tweet to a journalist [links to Verge, The]
   I was a victim of a Russian smear campaign. I understand the power of fake news. [links to Washington Post]

OWNERSHIP
   AMC Required to Divest Movie Theatres, Reduce NCM Ownership and Complete Screen Transfers in Order to Complete Acquisition of Carmike Cinemas - press release
   Tribune Sells Gracenote to Nielsen for $560 Million [links to Benton summary]
   Still No FCC Decision on Nexstar-Media General [links to Benton summary]

HEALTH
   Tech giants pledge to keep children out of cobalt mines that supply smartphone and electric car batteries [links to Washington Post]

ADVERTISING
   Russian Cyberforgers Use Fake Web Users to Steal Real Ad Revenue [links to Benton summary]

SENIORS
   2016 Technology Trends among Mid-Life and Older Americans - AARP research

LABOR
   Artificial Intelligence, Automation, and the Economy - WH press release [links to Benton summary]
   Investing in the Cybersecurity Workforce of Tomorrow - Department of Commerce blog [links to Benton summary]

DIVERSITY
   Preaching the Gospel of Diversity, but Not Following It NYT editorial [links to Benton summary]
   Op-Ed: Diversity in tech too often means ‘hiring white women.’ We need to move beyond that. [links to Vox]

GOVERNMENT & COMMUNICATIONS
   Alameda County (CA) Court officials blame software for wrongful arrests, other legal mishaps [links to Washington Post]

STORIES FROM ABROAD
   EU’s highest court declares UK surveillance powers illegal
   EU charges Facebook with giving 'misleading' information over WhatsApp
   Russian Cyberforgers Use Fake Web Users to Steal Real Ad Revenue [links to Benton summary]
   China's telecommunications evolution, institutions, and policy issues on the eve of 5G: A two-decade retrospect and prospect [links to Telecommunications Policy]
   Social media platforms throttled in Turkey after assassination: watchdog [links to Hill, The]

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LIFELINE BROADBAND PROBLEMS
[SOURCE: telecompetitor, AUTHOR: Joan Engebretson]
The Federal Communications Commission’s decision to allow qualified low-income households to use funding from the Universal Service Lifeline program toward broadband service was welcomed back in March when it was made, but problems with the program are mounting. Key Lifeline broadband problems: big carrier participation and rural carrier stand-alone broadband pricing. According to a press release from The National Hispanic Media Coalition (NHMC), more than 80 service providers have opted out of participation in the Lifeline broadband program for at least part of their territories. Verizon, for example, only wants to offer Lifeline broadband service in areas where it has deployed its FiOS fiber-to-the-home service. Other major service providers opting not to participate in Lifeline broadband include AT&T, Cox, Windstream, Charter, CenturyLink, FairPoint and Frontier. Reforms adopted in March called for the government to create a national eligibility verifier – essentially a database of eligible households — thereby eliminating the need for service providers to determine whether recipients are qualified to receive Lifeline payments. But according to a November 23 blog post from AT&T executive Joan Marsh, the eligibility verifier will not be fully implemented until 2019. Until then service providers are still responsible for verification – a responsibility that also entails compliance risks. Rather than take on that responsibility, AT&T would prefer to hold off on offering Lifeline broadband until the verifier is operational. Other carriers opting not to participate in the program may have similar motivation. There are a few areas where AT&T will offer a Lifeline discount on broadband – namely, anywhere the company receives high-cost Universal Service funding. The reason is that carriers accepting high-cost program funding are required to participate in the Lifeline broadband program. But there, too, the Lifeline broadband program is encountering problems. Rural rate of return carriers, many of whom rely on high-cost funding, do not expect to be able to offer stand-alone broadband service at rates that are comparable with those available in urban areas. With rates projected to exceed $100 monthly, a $9.25 discount wouldn’t go far toward making service more affordable for low-income consumers. Rural carrier associations argue that this situation is the result of insufficient funding for the high-cost program.
benton.org/headlines/lifeline-broadband-problems-big-carriers-opt-out-rural-carriers-struggle-pricing | telecompetitor | NHMC
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VERIZON SHOULD EXPAND LIFELINE BROADBAND BEYOND FIOS TERRITORY, SAYS NHMC
[SOURCE: Fierce, AUTHOR: Sean Buckley]
Verizon plans to offer Lifeline-supported broadband services where it offers FiOS service today, but the National Hispanic Media Coalition (NHMC) says the telecommunication company's efforts don’t go far enough. The NHMC says Verizon should offer Lifeline-enabled broadband throughout its entire footprint. “While this is a good first step, NHMC believes Verizon must better serve its low-income customers by expanding its Lifeline broadband service to its entire broadband footprint and not only where it offers FiOS,” said the NHMC. In a filing Verizon issued earlier in Dec, the company said it plans to offer Lifeline-based broadband in FiOS areas starting in the middle of 2017 to address the broadband “affordability challenge.” “We hope that providing qualifying low-income Americans with the choice to use their Lifeline benefit for our eligible broadband Internet access services will help address this affordability challenge and will be another useful step towards closing the remaining digital divide,” Verizon said. However, the issue is that Verizon, along with other large telecommunication and cable companies AT&T and Charter, sought forbearance of Lifeline broadband Internet access service (BIAS) requirements.
benton.org/headlines/verizon-should-expand-lifeline-broadband-beyond-fios-territory-says-national-hispanic | Fierce | NHMC
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REVISED ALTERNATIVE CONNECT AMERICA COST MODEL SUPPORT
[SOURCE: Federal Communications Commission, AUTHOR: Public Notice]
The Federal Communications Commission authorized 35 rate-of-return companies that elected 45 offers of Alternative Connect America Cost Model (A-CAM) support to receive model-based support pursuant to their existing elections. In addition, for the remaining 191 companies that elected model-based support, the FCC announced 228 revised offers of model-based support and the associated revised deployment obligations. The accompanying report shows the revised state-level offers of model-based support and revised deployment obligations for each carrier that is eligible to elect a second offer. These carriers have until January 19, 2017 (30 days) to notify the FCC, on a state-by-state basis, whether they elect to receive the revised amount of model-based support.
benton.org/headlines/fcc-offers-revised-alternative-connect-america-cost-model-support | Federal Communications Commission | Report and Order – and FNPRM | Commissioner O’Rielly
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SECURITY/PRIVACY

POLICE USE OF PHONY CELLPHONE TOWERS NEEDS TO BE REINED IN
[SOURCE: nextgov, AUTHOR: Joseph Marks]
Congress should pass legislation to ensure that phony cellphone towers police use to locate criminals and fugitives are used consistently across the country, according to a bipartisan congressional report released Dec 19. In the absence of those laws, the Justice and Homeland Security departments should refuse to approve the sale of those devices, known as “cell-site simulators” or “stingrays,” to state and local law enforcement unless they agree to abide by current federal rules, according to the staff report from the House Oversight and Government Reform Committee. The report is the result of a year-long staff investigation into stingrays, which federal law enforcement agencies frequently used to track criminals without warrants and using a standard lower than probable cause prior to policy shifts in September and October 2015. Those lower standards are still used by many states and localities, according to the report, which determined “the use of cell-site simulators by state and local law enforcement agencies was not governed by any uniform standards or policies.”
benton.org/headlines/police-use-phony-cellphone-towers-needs-be-reined-lawmakers-warn | nextgov | read the report
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ENCRPTION REPORT
[SOURCE: House of Representatives Commerce Committee, AUTHOR: ]
Members of the bipartisan House encryption working group – established in March 2016 by House Judiciary Committee Chairman Bob Goodlatte (R-VA), Ranking Member John Conyers (D-MI), House Commerce Committee Chairman Fred Upton (R-MI), and Ranking Member Frank Pallone, Jr. (D-NJ) –released a year-end report laying out key observations and next steps. Key observations of the report.
Any measure that weakens encryption works against the national interest.
Encryption technology is a global technology that is widely and increasingly available around the world.
The variety of stakeholders, technologies, and other factors create different and divergent challenges with respect to encryption and the “going dark” phenomenon, and therefore there is no one-size-fits-all solution to the encryption challenge.
Congress should foster cooperation between the law enforcement community and technology companies.
The report concludes: “Encryption is inexorably tied to our national interests. It is a safeguard for our personal secrets and economic prosperity. It helps to prevent crime and protect national security. The widespread use of encryption technologies also complicates the missions of the law enforcement and intelligence communities. As described in this report, those complications cannot be ignored. This is the reality of modern society. We must strive to find common ground in our collective responsibility: to prevent crime, protect national security, and provide the best possible conditions for peace and prosperity. That is why this can no longer be an isolated or binary debate. There is no ‘us versus them,’ or ‘pro-encryption versus law enforcement.’ This conversation implicates everyone and everything that depends on connected technologies—including our law enforcement and intelligence communities. This is a complex challenge that will take time, patience, and cooperation to resolve. The potential consequences of inaction—or overreaction—are too important to allow historical or ideological perspectives to stand in the way of progress.”
benton.org/headlines/house-encryption-working-group-year-end-report | House of Representatives Commerce Committee
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TRANSITION

COMMISSIONERS PAI, O'REILLY VOW TO GUT NET NEUTRALITY RULES "AS SOON AS POSSIBLE"
[SOURCE: ars technica, AUTHOR: Jon Brodkin]
The Federal Communications Commission's two Republican members, Commissioners Ajit Pai and Michael O'Rielly, told Internet service providers that they will get to work on gutting network neutrality rules "as soon as possible." Commissioners Pai and O'Rielly sent a letter to five lobby groups representing wireless carriers and small ISPs; while the letter is mostly about plans to extend an exemption for small providers from certain disclosure requirements, the commissioners also said they will tackle the entire net neutrality order shortly after President-elect Donald Trump's inauguration on January 20. "[W]e will seek to revisit [the disclosure] requirements, and the Title II Net Neutrality proceeding more broadly, as soon as possible," they wrote, referring to the order that imposed net neutrality rules and reclassified ISPs as common carriers under Title II of the Communications Act. Commissioners Pai and O'Rielly noted that they "dissented from the Commission's February 2015 Net Neutrality decision, including the Order's imposition of unnecessary and unjustified burdens on providers."
benton.org/headlines/commissioners-pai-orielly-vow-gut-network-neutrality-rules-soon-possible | Ars Technica | read the letter
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WIRELESS/SPECTRUM

WIRELESS NETWORK RESILIENCY COOPERATIVE FRAMEWORK
[SOURCE: Federal Communications Commission, AUTHOR: Public Notice]
In this Order, the Federal Communications Commission addresses proposals raised in its earlier Notice, released in the wake of Superstorm Sandy, designed to address the resiliency of the mobile wireless industry’s communications infrastructure. The FCC finds that the “Wireless Network Resiliency Cooperative Framework” (Framework) -- as submitted by AT&T, CTIA – The Wireless Association (CTIA), Sprint, T-Mobile, U.S. Cellular, and Verizon -- presents a more appropriate path forward to improving wireless resiliency and provider transparency, and the FCC refrains from adopting further regulations at this time. The FCC finds the voluntary framework to be a reasonable approach to achieving the FCC’s stated goals, including promoting availability of wireless mobile services in the event of natural disasters and other emergencies and increasing provider transparency around wireless resiliency. The FCC also believes the framework will bolster situational awareness for the FCC, consumers, and public officials, and provide a mechanism by which consumers will be able to hold providers accountable for service continuity during disaster-related events.
benton.org/headlines/fcc-releases-order-voluntary-wireless-network-resiliency-cooperative-framework | Federal Communications Commission | Commissioner Rosenworcel | Commissioner Pai
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OWNERSHIP

AMC REQUIRED TO DIVEST MOVIE THEATERS
[SOURCE: Department of Justice, AUTHOR: Press release]
The Department of Justice announced that it will require AMC Entertainment Holdings to divest theatres in 15 local markets, sell off most of its holdings and relinquish all of its governance rights in National Cinemedia LLC (NCM), and transfer 24 theatres with a total of 384 screens to the network of Screenvision LLC in order to complete its $1.2 billion acquisition of Carmike Cinemas Inc. The Justice Department’s Antitrust Division filed a civil antitrust lawsuit in the US District Court for the District of Columbia to block the proposed acquisition. At the same time, the department filed a proposed settlement that, if approved by the court, would resolve the competitive harm alleged in the lawsuit. The department said that without the required divestitures and other relief, the merger would result in higher prices and lower quality theatre amenities for moviegoers and weakened competition in the markets for preshow services and theatre advertising, where Screenvision is NCM’s only meaningful rival.
benton.org/headlines/amc-required-divest-movie-theatres-reduce-ncm-ownership-and-complete-screen-transfers | Department of Justice
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SENIORS

2016 TECH TRENDS AMONG MID-LIFE AND OLDER AMERICANS
[SOURCE: AARP, AUTHOR: G Oscar Anderson]
As Americans age 50 and older continue to grow their adoption of personal technology at an impressive rate, this report tracks technology attitudes and behaviors among this group over time. Highlights include device ownership, online activities, attitudes toward privacy, and the use of technology to stay connected with family and friends.
Device Adoption: Portable device adoption such as smartphones and tablets continues to grow among Americans age 50+, while adoption of traditional computing has flattened or declined. Over three quarters of adults 50+ (76%) own some type of computing device (desktop, laptop, or tablet).
Online Activities: E-mail and surfing the internet top the list of activities done on a computer or tablet by Americans age 50+. Among those who own such devices, top 5 activities are sending emails (82%), surfing the internet (81%), getting news (77%), getting directions or traffic info (72%), and making purchases (70%).
benton.org/headlines/2016-technology-trends-among-mid-life-and-older-americans | AARP
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STORIES FROM ABROAD

UK SURVEILLANCE POWERS RULED ILLEGAL
[SOURCE: Financial Times, AUTHOR: Madhumita Murgia, George Parker, Jim Brunsden]
Britain’s surveillance laws have been deemed illegal by the European Court of Justice in a case that throws into question the fate of the UK’s new Investigatory Powers Act. The ECJ ruled the legislation was illegal because it allowed “general and indiscriminate” retention of electronic communications. The judgment said member states could perform “targeted retention of that data solely for the purpose of fighting serious crime” but not the mass and indiscriminate data collection of everyone in Britain allowed by new UK spying regime. This type of legislation “cannot be considered to be justified within a democratic society, as required by the directive, read in the light of the Charter,” the ECJ said, referring to the charter of European human rights.
benton.org/headlines/eus-highest-court-declares-uk-surveillance-powers-illegal | Financial Times
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EU CHARGES FACEBOOK WITH GIVING 'MISLEADING' INFORMATION OVER WHATSAPP
[SOURCE: The Guardian, AUTHOR: Samuel Gibbs]
The European commission (EC) has filed charges against Facebook for providing “misleading” information in the run-up to the social network’s acquisition of messaging service WhatsApp after its data-sharing change in August. The charges will not have an affect on the approval of the $22 billion merger and is being treated completely separately to other European cases against Facebook, but could lead to Facebook being fined up to 1% of its global turnover in 2014 when the merger was approved, which was greater than $10 billion for the first time. The European competition commissioner, Margrethe Vestager, said, “Our timely and effective review of mergers depends on the accuracy of the information provided by the companies involved. In this specific case, the commission’s preliminary view is that Facebook gave us incorrect or misleading information during the investigation into its acquisition of WhatsApp. Facebook now has the opportunity to respond.” The commission said that Facebook informed regulators that it would not be able to perform automated matching between user-held Facebook accounts and WhatsApp accounts. However, Facebook’s privacy policy change for WhatsApp in August, for which the EC was notified in January, specifically enabled automated matching and data sharing after technical changes, including one for Apple and its iOS, allowed the matching of the majority of accounts not using a phone number with Facebook.''
benton.org/headlines/eu-charges-facebook-giving-misleading-information-over-whatsapp | Guardian, The | The Verge | ars technica
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