Daily Digest 12/7/2017 (Rushed Process)

Back in May 2014, Federal Communications Commission Chairman Ajit Pai (he was a lowly commissioner back then) complained that the FCC was moving too fast on net neutrality changes.  “Indeed, on several recent issues, many say that the Commission has spent too much time speaking at the American people and not enough time listening to them,” then-Commissioner Pai said in response to then-Chairman Tom Wheeler’s proposed open internet regulations, which at the time drew criticism from both Republicans and Democrats on the commission. Commissioner Jessica Rosenworcel had already called to delay the vote in order to ensure that there had been enough time for the American people to speak up and for the FCC to consider the public response. In his remarks, Pai agreed, saying, “Going forward, we need to give the American people a full and fair opportunity to participate in this process. And we must ensure that our decisions are based on a robust record.” But Pai’s office hasn’t responded to multiple requests for comment as to whether he’s open to the delaying the Dec 14 vote on his proposal, despite the numerous documented irregularities in the public comment process. Chairman Pai said at a House subcommittee in July that one thing that would make him open to reconsidering his plan to repeal the network neutrality rules would be a convincing argument that investment in internet infrastructure actually on the rise following the implantation of the Obama-era regulations. Had the chairman been on Comcast, AT&T, and Verizon’s investor calls since the rules passed, however, he would learn that all claimed that investment in their networks had actually increased since the network neutrality rules were passed. Chairman Pai wanted to slow down the FCC back when he was in the minority and he opposed the direction in which the commission was headed. Now that he’s in power, Pai wants his plan, the final language of which was officially shared two days before Thanksgiving, to sail through without delay—no matter how broken and corrupt the public participation process has been.

Federal Communications Commission Chairman Ajit Pai is making the rounds to rally supporters behind his plan to roll back the neutrality rules. His efforts include a huddle with House Republicans set for Thursday and a visit to the Senate Republican. He also recently spoke privately with the Senate Republican Policy Committee on net neutrality. Additionally, he stopped by Verizon’s Washington office on Dec 5 to give a speech at an International Institute of Communications event. 

The plan by the Federal Communications Commission to eliminate its network neutrality rules next week is expected to hand a major victory to Internet service providers. But any day now, a federal court is expected to weigh in on a case that could dramatically expand the scope of that deregulation — potentially giving the industry an even bigger win and leaving the government less prepared to handle net neutrality complaints in the future, consumer groups say. The case involves AT&T and one of the nation's top consumer protection agencies, the Federal Trade Commission. At stake is the FTC's ability to prosecute companies that act in unfair or deceptive ways. The litigation is significant as the FCC prepares to transfer more responsibility to the FTC for handling net neutrality complaints. If AT&T gets its way in the case, the FTC's ability to pursue misbehaving companies — over net neutrality issues or otherwise — may be sharply curtailed. Some antitrust experts say the consequences of a ruling against the FTC could go far beyond net neutrality, opening the door to many more companies trying to escape FTC oversight by claiming they are common carriers. “Companies whose common carrier activities represent only a minuscule portion of their business could bootstrap that status into an exemption from FTC oversight of even non-common carrier activities,” said Robert Cooper, an antitrust lawyer at the firm Boies Schiller Flexner. Google parent company Alphabet could theoretically claim to be a common carrier because one of its many subsidiaries is Google Fiber, a small voice and Internet access provider. Hence “every smart company” that could afford it would try to take advantage of the loophole by buying or launching a small telecom company, said David Vladeck, a law professor at Georgetown University and a former director of the FTC's consumer protection bureau.

What will repealing net neutrality rules mean for communities in rural America? Public interest groups say it could present unique challenges. Jessica Gonzalez, deputy director and senior counsel for the group Free Press, says most rural communities only have one Internet provider and that provider could do as it pleases if the rule is repealed. "We can't vote with our feet when it comes to how we're getting our access to the Internet and that really is the main reason why we need to regulate Internet access providers – to ensure that they're not blocking, throttling or prioritizing certain traffic on the Internet," Gonzalez states. The rule change would reclassify Internet providers – currently classified as telecommunications services – as information services. Gonzalez says one of the biggest issues with getting rid of net neutrality is that it takes away fair regulation of the Internet, and that could hurt businesses if a provider decides to steer traffic away from them.

House Commerce Committee Chairman Greg Walden (R-OR) took aim against FCC Commissioner Jessica Rosenworcel, who joined Attorney General Eric Schneiderman (D-NY) to bash fake comments and call for a delay to the Federal Communications Commission vote to repeal net neutrality rules. “There is no reason” for delay, said Chairman Greg Walden. “That is a false issue, and I am deeply disappointed in the role that Commissioner Rosenworcel has decided to play in this matter. It is disingenuous, it is disappointing, and it is completely unnecessary.” Rosenworcel’s office declined to comment on Walden’s remarks. Sen. Maggie Hassan (D-NH) countered that she is grateful for Rosenworcel’s leadership. “Reports that bots may have filed hundreds of thousands of fraudulent comments during the FCC’s net neutrality policymaking process underscore a threat not only to the future of net neutrality, but also to the integrity of our democracy,” said Sen Hassan.

On November 22, 2017, you [Jarrod Sharp] appealed the denial of your application for a fee waiver in connection with your Freedom of Information Act (FOIA) request, FOIA Control No. 2018-067. By this letter, we dismiss your appeal. On October 26, 2017, you filed a FOIA request with the Commission, seeking 1) a copy of the “‘Restoring Internet Freedom’ plan,” 2) documents regarding the Commission’s release of the plan, and 3) documents discussing the Commission’s DDOS attack claims. This request was assigned FOIA Control No. 2018-067. Included in your request was an application for a fee waiver, the justification for which stated, in its entirety, “Noncommercial purpose.” On November 22, 2017, the Office of General Counsel denied your fee waiver, noting that your fee waiver justification lacked any explanation of how the general public would benefit from the production of the requested records. Particularly, the Office of General Counsel concluded that you had not demonstrated that you had the means, ability, or intent to disseminate the information in a manner that would be of general benefit to the public. The Office of the General Counsel also provided you with an estimate of the fees necessary to process your request, which totaled $343.48.

Reddit is often dismissed as the digital version of a noisy bar brawl between nerds and misfits. But when it comes to issues like net neutrality, the site has a way of highlighting not just what’s important about the web but also what average citizens of the internet can do about it, something few mainstream media outlets tend to do. When Federal Communications Commission chairman Ajit Pai announced his intention to loosen the existing rules on net neutrality, most traditional news sites published “explainers” describing what net neutrality is and why some believe it to be an important way of protecting Internet freedom. Most of these (with a few exceptions) were of the standard “one side says this, the other side says that” format. The front page of Reddit, meanwhile— a leaderboard for a wide variety of links from funny GIFs to personal stories—displayed an almost unbroken stream of posts about net neutrality, and specifically, the senators and representatives who had failed to defend the principle.

Reflections from a variety of representatives from startups, small businesses, and established companies that began as startups who say they have open internet protections to thank for their prior and continued success. 

Our present panics tend to arrive just as new parts of our economy, culture and politics are reconstituted within platform marketplaces — shifts that have turned out to be bigger than anyone anticipated. Aggravation about “fake news” followed the realization that the business and consumption of online news had been substantially captured by Facebook, which had strenuously resisted categorization as a media company. Children’s entertainment has migrated to new and unexpected venues faster and more completely than either parents or YouTube expected or accounted for. Twitter is now the most effective way to keep up with breaking news, a singular direct line to the president, and a conspicuously mismanaged experiment in centralized public discourse.

While many agree the government does have a legitimate antitrust case against the megamerger between AT&T and Time Warner — the combined, vertically integrated company could potentially freeze out competitors, withhold or increase the price of premium content, and in turn harm consumers — President Donald Trump's ongoing public battle with Time Warner’s CNN has cast a heavy political shadow over the deal and the government’s objection to it. I reached out to eight experts on antitrust matters and megamergers to find out whether they think Trump’s public comments, specifically when it comes to CNN, might impact the Department of Justice’s case if and when its lawsuit heads to court.

Free Press, United Church of Christ, and the almost half dozen others who are challenging the Federal Communications Commission's decision to reinstate the UHF discount, have told a federal court that nothing in the arguments from the government and broadcasters has changed the relevant facts.  That came in its reply brief to the US Court of Appeals for the DC Circuit. A divided FCC in April voted to restore the discount. The main thrust of their argument is that 1) the court has jurisdiction, 2) that the Pai FCC's reinstatement of the UHF discount was arbitrary and capricious, which makes it illegal; 3) that the decision to reinstate it for an indefinite period was arbitrary and capricious; 4) that even if the FCC has authority to modify the cap, decision to reinstate the discount "pending the outcome of a rulemaking that may never be complete" is arbitrary and capricious." "Neither the governmental Respondents nor the broadcast industry Intervenors effectively respond to Petitioners’ demonstration that it was arbitrary and capricious to reinstate the UHF discount for an indefinite period," they told the court. "It is not hard to see that reinstatement of the concededly obsolete discount is a shrewd, but indefensible, mechanism to circumvent the Congressionally-mandated limit on national TV ownership."

While fear that big tech can wield excessive influence in our democracy may reflect broader misgivings outside the realm of antitrust law and enforcement, some political concerns about big tech appropriately fall under the purview of antitrust regulation. As Sally Hubbard, a Senior Editor at the Capitol Forum who covers monopolization issues, recently stated in an interview with Vox’s Sean Illing, “Companies like Facebook and Google have had an outsize effect on political discourse because of the ways their algorithms help to promote and spread fake news and propaganda. Even if it’s not their intent, their business model invariably contributes to this problem.” More competition between rival platforms would have introduced a greater number of algorithms for Russian operatives to navigate, and probably would have mitigated the impact of the fake news that successfully targeted voters during the 2016 U.S. election.

[Commentary] A few weeks ago, representatives from Facebook, Google and Twitter came to town to testify before Congress. But let’s look beyond the narrow scope of those hearings and explore a broader conceptual issue, a massive and thorny topic: the role and responsibility of technology companies that began as platforms and transformed, I believe, into publishers. These are two very different things, with different roles in society. Are they merely platforms and tech companies, or are they publishers with social and legal responsibility for what they publish? That is a central question at the heart of how to use internet for democracy, and it involves technology, evolving attitudes toward First Amendment values, and key questions challenging big tech’s business models. [Knight's Alberto Ibarguen]