Daily Digest 11/28/2017 (Figuring Out Trump Media Regulation)

Airbnb, Pinterest, Reddit, Tumblr, Twitter and Vimeo were among over 200 businesses that signed a letter to Federal Communications Commission Chairman Ajit Pai dated Nov 27 (as in Cyber Monday), trying to dissuade him from his planned network neutrality rule rollback vote. Pointing to the Cyber Monday hook for the letter, they called the online shopping version of the brick-and-mortar Black Friday "a testament to the power of the free and open internet to encourage entrepreneurship, drive innovation, make our lives easier, and to support a healthy economy." "Disastrously, the Federal Communications Commission (FCC) last week released a draft order that would end open [internet] commerce by repealing the current net neutrality rules and eliminating the protections that keep the internet free and open for America’s businesses and consumers," they wrote. "Without these rules, internet service providers will be able to favor certain websites and e-businesses, or the platforms they use t

For years, Comcast has been promising that it won't violate the principles of network neutrality, regardless of whether the government imposes any net neutrality rules. That meant that Comcast wouldn't block or throttle lawful Internet traffic and that it wouldn't create fast lanes in order to collect tolls from Web companies that want priority access over the Comcast network. This was one of the ways in which Comcast argued that the Federal Communications Commission should not reclassify broadband providers as common carriers, a designation that forces ISPs to treat customers fairly in other ways. The Title II common carrier classification that makes net neutrality rules enforceable isn't necessary because ISPs won't violate net neutrality principles anyway, Comcast and other ISPs have claimed. But with Republican Ajit Pai now in charge at the Federal Communications Commission, Comcast's stance has changed. While the company still says it won't block or throttle Internet content, it has dropped its promise about not instituting paid prioritization. Instead, Comcast now vaguely says that it won't "discriminate against lawful content" or impose "anti-competitive paid prioritization." The change in wording suggests that Comcast may offer paid fast lanes to websites or other online services, such as video streaming providers, after Pai's FCC eliminates the net neutrality rules next month. Comcast's promise not to "discriminate" suggests that its paid prioritization would be available to anyone who wants it and can afford it. Offering paid fast lanes to anyone at similar rates could help prevent the Federal Trade Commission from stepping in to block unfair trade practices.

[Commentary] In the rush to eliminate network neutrality protections, Federal Communications Commission Chairman Ajit Pai failed to hold a single public hearing, and has ignored the chorus of entrepreneurs, investors, businesses and citizens asking him to stop. Citizens across the political spectrum are now looking to their elected representatives to speak out on their behalf and call on Chairman Pai to cancel the vote. Chairman Pai’s plan is a radical break from FCC history and a fundamental departure from how the Internet has operated for the past 30 years. Members of Congress care about an open Internet and what their constituents think, and since they oversee the FCC, they have the power to stop him. Already, three members of Maine’s four-member congressional delegation, including Sens Susan Collins (R-ME) and Angus King (I-ME), have spoken out in opposition to Chairman Pai’s proposal. Congressional pressure has stopped the FCC before. In the past, the FCC has responded to pressure from Congress by choosing not to vote on previously circulated draft orders. Just last year, for example, the FCC tabled a proposed change to cable set top box rules after the draft order had been circulated. For the first time in history, ISPs will be allowed to interfere with these free markets, limiting choice, distorting competition and raising the price of doing business for everyone, including entrepreneurs and small businesses. And for the first time in history, the FCC will be powerless to stop them. Only Congress can prevent this from happening. [Barbara van Schewick is a Law Professor at Stanford Law School, and the Director of the Stanford Center for Internet and Society.]

[Commentary] It is nice that network neutrality proponents are finally embracing the arguments that those of us who have been critical of the FCC’s Open Internet efforts have been making for nearly the past decade. This newfound concurrence, however, does raise interesting questions about how the inevitable legal challenge to the Restoring Internet Freedom Order (RIFO) will proceed.  Why the Restoring Internet Freedom Order will probably survive judicial challenge: At this point either the Supreme Court or the DC Circuit have given carte blanche to the FCC to adopt whatever interpretation of these statutes the Commission deems best. All that it needs to articulate are facts that demonstrate the reasonableness of that interpretation — and the courts will defer substantially to the Commission in determining whether those facts are themselves reasonable. But there’s even more reason to expect the courts will affirm the RIFO: Compared to the Open Internet Order (OIO), the RIFO has exceptionally well-developed factual basis and analysis of that factual basis. What is certain is that the RIFO guarantees another two to three years of exciting net neutrality litigation are coming our way. Net neutrality truly is the gift that keeps on giving. [Gus Hurwitz is an assistant professor of law at the University of Nebraska College of Law]

[Commentary]  Once again, the [open Internet] rules are being rewritten.  Once again, the pitchforks and torches are in hand.  And once again, the only real and effective solution is being ignored:  legislation from Congress, versions of which have been floating around Capitol Hill for almost a decade. It should be clear to everyone by now that leaving the specifics of that remedy to the discretion of successive chairmen of the Federal Communications Commission is an untenable solution. The courts have now ruled that Congress left the classification of ISPs to the discretion of the Commission, meaning that whatever you think of the 2010, 2015, or 2017 Open Internet orders, the next FCC Chairman will have her or his own view, and this cycle of chaos will start anew, perhaps indefinitely. Chairman Pai’s proposal is, notably, the sixth reversal of policy in the last decade. Whatever outcome you are hoping for, in other words, won’t last long even if you get it. That’s why I continue to urge Aunt Sadie and everyone else who will listen to bring an end to this wasteful debate by demanding that Congress decide once and for all how broadband Internet should be regulated, and by whom. [Larry Downes is the Project Director at Georgetown Center for Business and Public Policy.]

Over just two days this week, the Trump administration has both sued AT&T to block its planned takeover of Time Warner and proposed allowing internet-service providers—like AT&T—to form closer alliances with content companies, like Time Warner. The two government moves seem to go in opposite directions, on the one hand restricting a major telecommunications merger and on the other giving internet providers broad new powers to shape their customers’ online experiences. But the actions reveal one consistency, and what might be viewed as an emerging Trump administration regulatory philosophy: Instead of new bright-line rules, such as those put in place under the Obama administration, it is stressing the enforcement of longstanding laws and regulations. The moves are a shift in emphasis from the approach taken by the Obama administration, which in 2015 adopted highly specific rules governing internet providers in the name of “net neutrality,” the principle that all web traffic be treated equally. The providers were prevented from cutting deals, known as “paid prioritization,” that would give fast lanes to some kinds of content in return for a price. And the Obama administration carried that approach into the antitrust realm, insisting in Comcast’s acquisition of NBCUniversal earlier this decade that Comcast live up to elaborate net-neutrality restrictions, as part of the so-called behavioral remedies that were conditions of antitrust approval.

One after another, regulators are making moves that underscore just how fast the media industry is changing, putting pressure on Washington to make sure laws keep up.

President Donald Trump returned from the Thanksgiving holiday with another attack on one of his favorite targets — the news media — suggesting Nov 27 on Twitter a “contest” to determine which television network deserves a “fake news trophy.” Taking special aim at CNN, and carving out an exception for Fox News, which often provides flattering coverage of him and his administration, President Trump tweeted. “We should have a contest as to which of the Networks, plus CNN and not including Fox, is the most dishonest, corrupt and/or distorted in its political coverage of your favorite President (me). They are all bad. Winner to receive the FAKE NEWS TROPHY!”