Monday, October 1, 2018
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Gov. Brown signs tough net neutrality law, sets up battle with FCC, DoJ
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Senate Privacy Hearing: Apologies, Explanations, And Weak Support
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Gov. Jerry Brown (D-CA) signed the nation's toughest net neutrality measure on Sept 30, requiring internet providers to maintain a level playing field online. Advocates of net neutrality hope the move in the home of the global technology industry will have national implications, prompting Congress to enact national net neutrality rules or encouraging other states to follow suit. It's the latest example of the nation's most populous state seeking to drive public policy outside its borders and rebuff President Donald Trump's agenda. The Federal Communications Commission in 2017 repealed rules preventing internet companies from exercising more control over what people watch and see on the internet. California's law seeks to reinstate those rules. The law prohibits internet providers from blocking or slowing data based on content or from favoring websites or video streams from companies that pay extra. It also bans "zero rating," in which internet providers don't count certain content against a monthly data cap - generally video streams produced by the company's own subsidiaries and partners. Oregon, Washington and Vermont have approved legislation related to net neutrality, but California's measure is seen as the most comprehensive attempt to codify the principle in a way that might survive a likely court challenge. An identical bill was introduced in New York.

The Justice Department responded almost immediately to Gov Jerry Brown (D-CA) signing net neutrality legislation with a lawsuit seeking to overturn the law. Attorney General Jeff Sessions said that the federal government, not the states, should oversee the internet, and California had “enacted an extreme and illegal state law attempting to frustrate federal policy.” In response to the Justice Department suit, California Attorney General Xavier Becerra said, “While the Trump Administration continues to ignore the millions of Americans who voiced strong support for net-neutrality rules, California—home to countless start-ups, tech giants and nearly 40 million consumers—will not allow a handful of power brokers to dictate sources for information or the speed at which websites load.”

I’m pleased the Department of Justice has filed this suit. The Internet is inherently an interstate information service. As such, only the federal government can set policy in this area. And the US Court of Appeals for the Eighth Circuit recently reaffirmed that state regulation of information services is preempted by federal law. Not only is California’s Internet regulation law illegal, it also hurts consumers. The law prohibits many free-data plans, which allow consumers to stream video, music, and the like exempt from any data limits. They have proven enormously popular in the marketplace, especially among lower-income Americans. But notwithstanding the consumer benefits, this state law bans them. The Internet is free and open today, and it will continue to be under the light-touch protections of the FCC’s Restoring Internet Freedom Order. I look forward to working with my colleagues and the Department of Justice to ensure the Internet remains ‘unfettered by Federal or State regulation,’ as federal law requires, and the domain of engineers, entrepreneurs, and technologists, not lawyers and bureaucrats.

Over the past four years, the US Census Bureau’s American Community Survey (ACS) has asked households whether they have access to the Internet “using a broadband (high speed) Internet service such as cable, fiber optic, or DSL service…” The answers reveal where subscriptions are ticking up and where gaps persist.
National Broadband Adoption Continues to Rise: Using ACS data from 2013 through 2017, we find that the country has adopted broadband service at growing rates, especially in some metro areas where subscription rates were the lowest. Yet inconsistent growth rates across metro areas confirm that many people are still left in the digital dark—and show just how far broadband performance is from matching other essential infrastructure systems.
Lagging Metro Areas Are Catching Up: Across the 100 largest metro areas, the picture looks similar, with broadband adoption rising from 74.8 percent in 2013 to 85.8 percent in 2017. While almost all of these metro areas saw a statistically significant increase in broadband adoption, the gains did not occur evenly. In fact, metro areas with the lowest adoption rates in 2013 tended to see the largest gains over the last four years.
Work Remains for Local Leaders: It’s going to take more policy reforms, pricing assistance, and community engagement to reach the digitally underserved. December 2018, we’ll get the first five-year broadband estimates at the census tract level, meaning we can see how broadband adoption differs across neighborhoods. For now, though, there is reason to be optimistic. The gains we’ve seen in broadband adoption over the past four years are significant. They will have positive impacts on millions of households that are now reliably connected to the Internet, and further strengthen our country’s essential digital foundation. Because America’s economic and social connections are increasingly occurring online, the time to make widespread broadband a priority is now.
Tribal Broadband: Few Partnerships Exist and the Rural Utilities Service Needs to Identify and Address Any Funding Barriers Tribes Face

In 2018, the Federal Communications Commission estimated that 35 percent of Americans living on tribal lands lack broadband service compared to 8 percent of Americans overall. Various federal programs support increasing broadband deployment in unserved areas, including tribal lands. Tribes can form partnerships with private sector companies and others to deploy broadband infrastructure on tribal lands. The US Government Accountability Office was asked to provide information on these partnerships. This report discusses (1) examples and outcomes of tribal partnership arrangements, (2) the amount of federal funding provided to tribal entities for broadband deployment, and (3) stakeholder-identified barriers that tribes face in obtaining federal funding and the extent to which federal agencies have addressed those barriers. GAO identified partnerships by reviewing federally funded broadband projects that included a partnership component; analyzed federal funding dedicated to broadband deployment; interviewed agency and tribal government officials, tribal associations, tribally owned broadband providers, and industry stakeholders; and assessed US Department of Agriculture Rural Utilities Services' efforts to address the regulatory funding barriers tribes may face. The information presented is illustrative and is not generalizable to all tribes or all partnerships.
GAO recommends that RUS identify and address regulatory barriers that impede tribal entities from obtaining RUS funding for broadband deployment. RUS neither agreed nor disagreed with this recommendation.

The use of digital technology has had a long stretch of rapid growth in the United States, but the share of Americans who go online, use social media or own key devices has remained stable the past two years, according to a new analysis of Pew Research Center data. The shares of US adults who say they use the internet, use social media, own a smartphone or own a tablet computer are all nearly identical to the shares who said so in 2016. The share who say they have broadband internet service at home currently stands at 65% – nearly identical to the 67% who said this in a survey conducted in summer 2015. And when it comes to desktop or laptop ownership, there has actually been a small dip in the overall numbers over the last two years – from 78% in 2016 to 73% today.
A contributing factor behind this slowing growth is that parts of the population have reached near-saturation levels of adoption of some technologies. Put simply, in some instances there just aren’t many non-users left. Still, there are noteworthy numbers of non-users of various technologies. In some cases, Americans who would like to take advantage of new technologies are simply unable to do so because of financial restrictions. In a 2015 survey, 43% of non-broadband adopters cited cost (either the cost of a computer, or the cost of the broadband subscription itself) as the primary reason they did not have broadband service at home. For other Americans, technology adoption may differ by where they live. A survey conducted earlier this year found that roughly six-in-ten Americans living in rural areas say that access to high speed internet is a problem in their local community. That compares with 43% of those in urban areas and 36% living in suburbs.

Rep Anna Eshoo (D-CA) introduced the Truth-In-Billing, Remedies, and User Empowerment over Fees (‘TRUE Fees’) Act, legislation that requires phone, cable and Internet providers to include all charges in the prices they advertise for service, and provides remedies for consumers when they have been wrongfully charged. Specifically, the True Fees Act requires cable and Internet providers to include all charges in the prices they advertise for service; allows customers to end their contract without early termination fees if the provider increases fees during the term of the contract; prevents arbitrary price hikes on equipment fees unless there is actually an improvement made to the equipment; and prohibits forced arbitration clauses for wrongful billing errors.

Top White House officials today held a “5G Summit” with one basic message: How can the Trump administration encourage the private sector to deploy 5G as quickly as possible? Although other US government agencies like the Federal Communications Commission and the National Telecommunications and Information Administration (NTIA) have long dealt in spectrum and network deployment issues, the White House summit was the first major signal by the Trump administration that it also wants to play an active role in smoothing regulations for 5G rollouts. The summit collected executives from the wireless industry with officials from the Trump administration—including Larry Kudlow, director of the National Economic Council, and Michael Kratsios, deputy US CTO and deputy assistant to the President at the White House Office of Science and Technology Policy, the agency that held the event—along with top House and Senate lawmakers and officials from the FCC and the NTIA.
But Kudlow—who replaced Gary Cohn as Trump's top economic advisor in May—made it clear that the Trump administration wants to give the wireless industry what it needs to deploy 5G quickly. Kudlow said the administration is taking an “America first, 5G first” approach to the issue. Specifically, he said the administration will work toward policies—including lower taxes and deregulation—that promote growth in the private sector. “The White House is behind this free market approach,” he noted. Kudlow also boasted of the Trump administration’s efforts to encourage U.S. economic growth, particularly through corporate tax cuts. “We’re crushing it, we’re absolutely crushing it,” Kudlow said of the overall U.S. economy. “And I want the 5G to be in that crushing it thing.” Other officials speaking publicly at the event included FCC Chairman Ajit Pai, the NTIA’s David Redl and House Commerce Committee Chairman Greg Walden (R-OR). Chairman Walden noted that the U.S. needs to protect and encourage the supply chain for 5G. Although he did not discuss any specific policies or positions, he did say that “there are some who think we can simply ban vendors from American markets, but the marketplace for hardware and software is global.”

With senior leaders participating from across government, this meeting sends a powerful message: US leadership in 5G technology is a national imperative for economic growth and competitiveness. So point one: We need to seize the opportunities of 5G. Point two: Time is of the essence. We are not alone in our pursuit of 5G. The US is in the lead, thanks to our private sector as well as the work of the Federal Communications Commission, this Administration, and Congress. But China, South Korea, and many other countries are eager to claim this mantle.
Our strategy is the 5G FAST plan—a plan to Facilitate America’s Superiority in 5G Technology. The plan includes three key solutions: freeing up spectrum, promoting wireless infrastructure, and modernizing regulations. I look forward to working with all of you to lead the world in 5G, to grow our economy, and to deliver digital opportunity to the American people.
Twenty-five members of Congress sent a letter to Federal Communications Commission Chairman Ajit Pai on September 25, 2018, offering suggestions on promoting local deployment of advanced communications services, protecting local authority, and 5G. They urged the FCC to: recognize localities' historic and ongoing role in managing rights-of-way to ensure safe deployment and achieve aesthetic goals; establish guardrails to delineate where local regulations either promote or effectively prohibit the construction of the networks urgently needed for 5G and broadband; ensure localities are fully compensated for their costs in issuing permits, overseeing deployment and, where necessary, managing the rights-of-way; and set reasonable and enforceable deadlines for localities to act on wireless permit applications.

On September 26, 2018, executives from six major U.S. tech and communications companies testified before the Senate Commerce Committee at a hearing titled Examining Safeguards for Consumer Data Privacy. Representatives from Amazon, AT&T, Google, Twitter, Apple, and Charter were there to help lawmakers as they all discussed “possible approaches to safeguarding privacy more effectively.” Tech companies, on the whole, followed the trend that has emerged out of Silicon Valley when they testify before Congress: Apologize, explain, and offer to work with lawmakers on a regulatory solution. And what they buffered their offer with was this: we support federal laws that would safeguard user privacy — if those laws aren’t as stringent as rules recently adopted in Europe and California.

Google chief executive Sundar Pichai paid a rare visit to Washington (DC) on Sept 28 to defend the company against allegations that it silences conservatives online, part of an effort to defuse political tensions between the company and Congress ahead of a hearing later in 2018. At a gathering with a dozen Republicans, House Majority Leader Leader Kevin McCarthy (R-CA) stressed to Pichai that party lawmakers are concerned about “what’s going on with transparency and the power of social media today,” particularly given the fact that Google processes 90 percent of the world’s searches. Google long has denied that it censors conservatives. Pichai explained during the roughly hour-long private meeting how the company sets up its teams and codes its algorithms to prevent bias, apparently.
Pichai's trip to Capitol Hill comes in anticipation of his appearance at a hearing later in fall 2018, where lawmakers stressed they would press him not only on charges of censorship but other issues facing the company -- including the privacy protections it affords users and its ambitions to relaunch its search engine in heavily-censored China. Exiting the meeting, Pichai described it as “constructive and informative,” adding in a statement that Google is “committed to continuing an active dialogue with members from both sides of the aisle, working proactively with Congress on a variety of issues, explaining how our products help millions of American consumers and businesses, and answering questions as they arise."

Facebook said that an attack on its computer network had exposed the personal information of nearly 50 million users. The company said it discovered the breach this week, finding that attackers had exploited a feature in Facebook’s code that allowed them to take over user accounts. The company said it fixed the vulnerability and notified law enforcement officials. “We’re taking it really seriously,” said Mark Zuckerberg, the company’s chief executive. “We have a major security effort at the company that hardens all of our surfaces.” He added: “I’m glad we found this. But it definitely is an issue that this happened in the first place.” More than 90 million Facebook users were forced to log out of their accounts early Sept 28, a common safety measure taken when accounts have been compromised. Facebook said it did not know the origin or identity of the attackers, nor had it fully assessed the scope of the attack. The company said it was still in the beginning stages of its investigation.

Solid is an open-source project to restore the power and agency of individuals on the web. Solid changes the current model where users have to hand over personal data to digital giants in exchange for perceived value. As we’ve all discovered, this hasn’t been in our best interests. Solid is how we evolve the web in order to restore balance — by giving every one of us complete control over data, personal or not, in a revolutionary way. Solid is a platform, built using the existing web. It gives every user a choice about where data is stored, which specific people and groups can access select elements, and which apps you use. It allows you, your family and colleagues, to link and share data with anyone. It allows people to look at the same data with different apps at the same time. Solid unleashes incredible opportunities for creativity, problem-solving and commerce. It will empower individuals, developers and businesses with entirely new ways to conceive, build and find innovative, trusted and beneficial applications and services. Solid is guided by the principle of “personal empowerment through data” which we believe is fundamental to the success of the next era of the web. We believe data should empower each of us.
[Tim Berners-Lee is Director of the World Wide Web Consortium (W3C) w3.org and founded webfoundation.org ]

Although the decision remains under seal, a federal judge in California apparently ruled that the government cannot force Facebook to break the encryption on its popular Messenger voice app in a criminal case in which agents wanted to intercept a suspect’s conversations. The decision could be a setback for the Justice Department which sought to compel Facebook to figure out how to give it access to the encrypted communications. It is a welcome development, however, for tech firms as they try to fend off government pressure to design their devices and services to accommodate surveillance while they build stronger encryption to safeguard their customers’ privacy.

Department of Justice Antitrust Chief Makan Delrahim, Federal Trade Commission Chairman Joe Simons and European Union Competition Commissioner Margrethe Vestager sat down for a meeting in Washington, a moment captured in photo proof posted to Vestager's Twitter feed. Delrahim said, "Our working relationship with the European Commission’s DG Competition [Vestager's office] is essential to ensuring competitive markets in the increasingly interconnected global economy." It's the renewal of a formal relationship between the Americans and their European colleagues, Vestager said adding it's been a "long time" since they've had structured, in-person conversations. "I think it's seven years [that have gone by] without formal consultation," said Vestager. The more informal arrangement worked well, she said, though she expressed enthusiasm for getting back to a more official way of doing business with her colleagues on this side the Atlantic. Vestager wouldn’t say whether she thinks her US counterparts have gone too easy on the Silicon Valley companies that have been the frequent target of her own antitrust investigations. When it comes to case-level questions, Vestager said, her focus is on Europe and the decisions made by the EU.
Ownership
DOJ antitrust chief Delrahim questions whether there’s ‘credible evidence’ Big Tech is harming innovation

The Justice Department’s top antitrust enforcer, Makan Delrahim, is receptive to complaints that tech companies such as Google and Facebook may be hindering competition with their dominance but believes regulators lack the economic evidence that would be needed to prove such a case in court. Delrahim that there are “very valid concerns at some level” about whether companies in Silicon Valley are getting too big, or “stifling innovation or consumer choice.” In principle, those complaints could ultimately lead to an antitrust suit, Delrahim said. And there is little question that some tech firms enjoy market power in certain markets, he conceded. But Delrahim quickly added that the allegations against the companies thus far are merely “anecdotal stories.” “I don’t know if any of the enforcement bodies necessarily have that credible evidence,” Delrahim said.
Delrahim also dipped his toe into a swirling debate over whether tech companies' products may be discriminating against conservative viewpoints. “I’m concerned about the concerns that have been raised,” Delrahim said, “because not so much is it ‘because conservatives,’ but because one day, depending on ownership, it could be liberals. I think you have to be very careful about the power of big companies in a democracy.”

Journalists are telling a federal court that there were solid reasons to believe that President Donald Trump's animus toward CNN played a role in the Administration's attempt to block the merger of CNN parent Time Warner with AT&T and that a lower court should have allowed that "selective enforcement" defense to be introduced and evidence of that claim presented. That came in an amicus brief filed with the US Court of Appeals for the District of Columbia in the Justice Department's appeal of that lower court ruling, which ultimately went in favor of AT&T and Time Warner, but did not include discovery on the issue of whether the President's concern about a media critic translated to DOJ's opposition to the merger. The Reporters Committee for Freedom of the Press filed the brief, a group that brands the President an existential threat to press freedom, a position shared by other journalist organizations. It said that the President had repeatedly attacked both CNN and the merger, and that there were "indications" the White House sought to "interfere" with the decision to sue. It told the court that the merger challenge was launched "in the context of a broader 'war' on the media by the president," and that the standard the lower court used to deny the discovery could make it hard for news organizations to obtain discovery in future cases where the Trump Administration "selectively enforces antitrust or other complex regulations or laws to punish negative--or coerce positive--news coverage.

Facebook is widely expected to refashion Instagram into a fully integrated sub-unit of Facebook — which, given Facebook’s record, suggests minimal privacy and maximized advertising. But it’s also clear, in retrospect, that the Instagram acquisition helped reinforce the dominance by Facebook of the social-networking world. A key question has been lost in coverage of the transition: Just why is Facebook in control of Instagram, its greatest natural competitor, in the first place? Isn’t antitrust law supposed to stop companies from buying off their rivals to achieve market dominance? The answer is that we — the Obama administration’s antitrust enforcers — blew it. Our standards for assessing mergers, fixated on consumer prices, were a poor match for the tech economy and are effectively obsolete.
Establishing better standards for the review of tech platform mergers means supplementing economic analysis, not abandoning it. It means assessing competition in attention markets in fresh ways: In such markets, as economist David Evans argues, the relevant metric is user time, not price. Regulators also ought to make reasonable predictions as to whether firms may become future competitors, even if they are not present competitors — a doctrine largely neglected since the 1980s. Finally, enforcers need to be highly sensitive to the elimination of “mavericks” — firms like Instagram poised to pose an existential challenge to the incumbent.
[Tim Wu is the Julius Silver professor of law, science and technology at Columbia University]

The confirmation hearings of Judge Brett Kavanaugh were a poignant, painful and raw moment for the country. They were also a defining moment for social media. People posted their tears, their stories, their outrage wherever they were — in schools and on buses, at work and at home. From 9am to 7pm ET there were 8.8 million hearing-related tweets. That's well more than the 4.5 million tweets about this year's State of the Union address, but still far less than the 75 million vote-related tweets on Election Day 2016. And imagine if Kavanaugh's high school years had taken place in the present time. For better or worse, there would likely be lots of social media evidence.

The first trip I took as a Free Press staff member nearly 14 years ago was to St. Paul, Minnesota, where, on a rainy Thursday night, 700 people filling an auditorium and overflow room. Many of them lined up for hours and hours to stand at a microphone and testify about the problems of the media. I’d never seen anything like it. People were there because a couple of Commissioners from the Federal Communications Commission had a radical idea: They should actually go out and listen to the public. On another rainy night recently in Washington, I thought back to that trip and the many that followed. I was lucky enough to be invited to a dinner organized by the Benton Foundation to celebrate the legacy of FCC Commissioner Michael J. Copps. Former commissioners Jonathan Adelstein and Mignon Clyburn, numerous former Copps’ staffers, friends and allies gathered to toast the commissioner for his unwavering commitment to a more just and democratic media. Copps, now a Free Press board member and senior adviser to Common Cause, has many accomplishments to remember and celebrate — so many in fact that the Benton Foundation commissioned a historical study of his decade-long tenure at the FCC, The Media Democracy Agenda: The Strategy and Legacy of Federal Communications Commissioner Michael J. Copps.
[Craig Aaron is President and CEO of Free Press]
Benton (www.benton.org) provides the only free, reliable, and non-partisan daily digest that curates and distributes news related to universal broadband, while connecting communications, democracy, and public interest issues. Posted Monday through Friday, this service provides updates on important industry developments, policy issues, and other related news events. While the summaries are factually accurate, their sometimes informal tone may not always represent the tone of the original articles. Headlines are compiled by Kevin Taglang (headlines AT benton DOT org) and Robbie McBeath (rmcbeath AT benton DOT org) — we welcome your comments.
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