Daily Digest 11/27/2017 (FCC Agenda; Net Neutrality; Ownership)

Rounding out our December meeting will be two matters that were previewed last week. First, the Federal Communications Commission will consider an order that would restore Internet freedom and return to the bipartisan, light-touch framework that helped America's Internet economy become the envy of the world. And unlike the previous Administration, which pushed through its Internet regulations without letting the public see what was being proposed, anyone can read my plan. It's on the Commission's website —more than three weeks before our scheduled vote. [FCC Chairman Pai]

[Commentary] Net neutrality is the right to go where you want and do what you want on the internet without your broadband provider getting in the way. It means your broadband provider can’t block websites, throttle services or charge you premiums if you want to reach certain online content. Proponents of wiping out these rules think that by allowing broadband providers more control and the ability to charge for premium access, it will spur investment. This is a dubious proposition. Wiping out net neutrality would have big consequences. Without it, your broadband provider could carve internet access into fast and slow lanes, favoring the traffic of online platforms that have made special payments and consigning all others to a bumpy road. Your provider would have the power to choose which voices online to amplify and which to censor. The move could affect everything online, including the connections we make and the communities we create. This is not the internet experience we know today. Americans should prevent the plan from becoming the law of the land. If the idea behind the plan is bad, the process for commenting on it has been even worse. Before my fellow FCC members vote to dismantle net neutrality, they need to get out from behind their desks and computers and speak to the public directly. The FCC needs to hold hearings around the country to get a better sense of how the public feels about the proposal. When they do this, they will likely find that, outside of a cadre of high-paid lobbyists and lawyers in Washington, there isn’t a constituency that likes this proposal. In fact, the FCC will probably discover that they have angered the public and caused them to question just whom the agency works for. [FCC Commissioner Jessica Rosenworcel]

[Commentary] In doing away with the 2015 rules that prohibit broadband providers from discriminating against or favoring certain content, applications and services (that is, no blocking, no throttling, no fast lanes and a general rule against discrimination), Federal Communications Commission Chairman Ajit Pai has radically departed from bipartisan FCC precedent. This opens the door for companies like Comcast, AT&T, Verizon, and Charter to pick winners and losers on the Internet by controlling which online companies get faster and better quality of service and at what price.  Sounds bad, right? Believe it or not, the proposed order is worse than that. The proposed order would leave broadband providers largely if not completely free of oversight. The proposed order would prohibit states and localities from protecting their citizens. [Gigi Sohn]

[Commentary] I’m proposing today that my colleagues at the Federal Communications Commission repeal President Obama’s heavy-handed internet regulations. Instead the FCC simply would require internet service providers to be transparent so that consumers can buy the plan that’s best for them. And entrepreneurs and other small businesses would have the technical information they need to innovate. The Federal Trade Commission would police ISPs, protect consumers and promote competition, just as it did before 2015. Instead of being flyspecked by lawyers and bureaucrats, the internet would once again thrive under engineers and entrepreneurs. The FCC will vote on this proposal on Dec. 14. If it passes, Washington will return to the bipartisan approach that made the internet what it is today. [FCC Chairman Pai]

The National Hispanic Media Coalition filed a letter on November 20, 2017 to submit an analysis of open internet consumer complaints and related documents produced in response to its FOIA requests. The report is entitled “Consumer Perspectives on Barriers to Accessing the Open Internet,” was commissioned by NHMC and is based solely on the consumer complaints and related documents that have been released by the Federal Communications Commission to date.

Today's draft Order shows both an appalling disregard for the record and an astounding disregard for even the basics of administrative law. It would seem more likely, as some have suggested, that Chairman Pai and Congressional Republicans have released this Order to create a crisis atmosphere and push through legislation authored by the cable companies rather than in a serious attempt at policy. For almost 20 years, both Republican and Democratic Chairmen of the FCC have asserted the FCC’s ongoing responsibility and authority to protect consumers and promote competition in the broadband access market. Rather than admit that this draft Order is a radical break from a bipartisan consensus on FCC authority to protect consumers generally and net neutrality specifically, Chairman Pai prefers to surrender this power to broadband providers, enabling them to set their own ‘net neutrality’ standards.

Federal Communications Commission Chairman Ajit Pai released his proposal to kill net neutrality today, and while there’s a lot to be unhappy with, it’s hard not to be taken with the brazenness of his argument. CHairman Pai thinks it was a mistake for the FCC to try and stop Comcast from blocking BitTorrent in 2008, thinks all of the regulatory actions the FCC took after that to give itself the authority to prevent blocking were wrong, and wants to go back to the legal framework that allowed Comcast to block BitTorrent. 

The Federal Communications Commission received a record-breaking 22 million comments chiming in on the net neutrality debate, but from the sound of it, it’s ignoring the vast majority of them. A senior FCC official said that 7.5 million of those comments were the exact same letter, which was submitted using 45,000 fake email addresses. But even ignoring the potential spam, the commission said it didn’t really care about the public’s opinion on net neutrality unless it was phrased in unique legal terms. The vast majority of the 22 million comments were form letters, the official said, and unless those letters introduced new facts into the record or made serious legal arguments, they didn’t have much bearing on the decision. The commission didn’t care about comments that were only stating opinion. The FCC has been clear all year that it’s focused on “quality” over “quantity” when it comes to comments on net neutrality. In fairness to the commission, this isn’t an open vote.

AT&T and Comcast have convinced a federal judge to nullify an ordinance that was designed to bring more broadband competition to Nashville, Tennessee. In 2016, the Nashville Metro Council passed a "One Touch Make Ready" rule that gives Google Fiber or other new ISPs faster access to utility poles. The ordinance lets a single company make all of the necessary wire adjustments on utility poles itself, instead of having to wait for incumbent providers like AT&T and Comcast to send work crews to move their own wires. AT&T and Comcast sued the metro government in US District Court in Nashville, claiming that federal and local laws preempt the One Touch Make Ready rule. Judge Victoria Roberts agreed with AT&T and Comcast. The case centered on two sets of utility poles: those owned by AT&T and those owned by the municipal Nashville Electric Service (NES).

The future of AT&T could be shaped by two big decisions in Washington, with the Justice Department suing the company to block its $85 billion purchase of Time Warner and the Federal Communications Commission announcing a plan to roll back net neutrality rules, handing a big win to Internet providers. Some analysts said the combined actions could deliver a double-victory for AT&T. If it wins its antitrust case against the DOJ, AT&T could buy Time Warner without offering any concessions to the government. It could then benefit from the repeal of the government's net neutrality rules, allowing it to leverage Time Warner's massive library of shows, television stations and films like few other companies.

[Commentary] Despite what AT&T CEO Randall Stephenson thinks, the Department of Justice’s suit blocking AT&T from acquiring Time Warner’s assets in an $85 billion merger is a great moment for antitrust in America. It’s late, but it’s welcome. AT&T hurt itself by failing to respect DOJ staff that learned key lessons from the giant merger of Comcast with NBCU in 2011: So-called "vertical" mergers between big content and transmission companies can have pernicious consequences for consumers, even if the merger does not remove a competitor from the field. The staff has gotten the message that, in this heavily concentrated, stagnant, and essentially noncompetitive marketplace, trying to smooth over illegal mergers with conditions and ongoing oversight doesn’t work. That’s why, informed by years of staff experience and frustration with Comcast/NBCU, DOJ’s antitrust head Delrahim has sued to block AT&T from completing its deal. DOJ has a very strong case. AT&T not only failed to address the department’s concerns, but also unintentionally provided ammo in the form of the company’s strategic statements over the years. The DOJ uses quotes from AT&T’s and DirecTV’s own internal documents to show that the merged company intended to use Turner’s top-rated, widely distributed content as a sledgehammer both (a) to raise prices for any other competing video distributor, so as (ultimately) to drive those distributors’ customers into AT&T’s arms, and (b) to slow competition from online video. [Susan Crawford is a professor at Harvard Law School]

Google is ending a practice in which certain Android cellphone location information was captured, following an online investigation that raised questions about how the information might impact your privacy.  The report states that software on Android phones gathers location data and sends it back to Google, even if you’ve actively turned off location settings on your phone, haven’t used any apps, or even if you haven’t inserted a SIM card from your carrier. The phone would have to be connected to the Internet.  Android phones have been collecting the addresses of nearby cellular towers since the beginning of 2016, giving Google access to location information that goes “far beyond a reasonable consumer expectation of privacy.” Google said it chose to end the practice right after the report was brought to its attention.

Facebook is creating an online tool to allow users to determine if they might have been exposed to Russian disinformation during the 2016 presidential election and its fractious aftermath. The new tool, which the company said will be available by the end of 2017, is the latest move by Facebook to respond to public and political pressure to reveal the extent of the Russian disinformation campaign waged on its social media platform and on Instagram, which Facebook owns. Together nearly 150 million Facebook and Instagram users may have had pieces of Russian disinformation content -- both paid ads and free posts -- reach their accounts, the company has said, though it also has said there is no way to know how many actually saw that content. The new tool will be an online portal, available through Facebook's "Help Center." It will allow users to see if pages or accounts they "liked" or followed between January 2015 and August 2017 were created by the Internet Research Agency, a St.