Daily Digest 12/7/2017 (Rushed Process)

Benton Foundation

Network Neutrality

FCC Chairman Rushing to Crush Net Neutrality Complained in 2014 About Rushed Process to Enshrine It

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.

via Slate

Restoring a light touch to Internet regulations

[Commentary] Some have tried to whip Americans into a frenzy by making outlandish claims. Feeding the hysteria are silly accusations that my Restoring Interernet Freedom plan will “end the internet as we know it” or threaten American democracy itself. These claims obscure a pretty mundane truth: This plan would simply restore the successful, light-touch regulatory framework that governed the internet from 1996 to 2015. And importantly, it would get the government out of the business of micromanaging the internet. Some claim that the Obama FCC’s regulations are necessary to protect internet openness. History proves this assertion false. We had a free and open internet prior to 2015, and we will have a free and open internet once these regulations are repealed. Some in Silicon Valley have opposed the plan, arguing in favor of imposing tough regulations on internet service providers. And I can understand why large Silicon Valley companies take this position. Saddling internet service providers with tougher regulations than apply to themselves helps them cement their dominance over the internet economy. If these companies are truly committed to an open internet where Americans can freely access the content of their choice, like I am, it’s curious that they focus on unnecessary and harmful regulation of other parts of the internet ecosystem with little history of engaging in this kind of behavior. But what about transparency when it comes to dominant Silicon Valley internet platforms? Right now, consumers are largely left in the dark when it comes to how these companies determine what American consumers see in their newsfeeds or search results. For example, these platforms could be using algorithms that favor content with certain viewpoints, and their users would have no way of knowing that they were being manipulated in this way. Is this a problem that needs to be addressed, and if so, how? I don’t claim to have all of the answers, but I do think these are questions worth raising. So as we think about internet policy, we should look at the entire internet economy — not single out one part of it. And our aim shouldn’t be to pick winners and losers but instead to have consistent rules of the road. These rules should promote investment and innovation, protect internet freedom, and promote the market-based vision that’s served us so well for so long. [FCC Chairman Ajit Pai]

FCC's Pai Steps Up Pitch to Conservatives to Back Net Neutrality Plan

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. 

What FCC Staff Added to the Net Neutrality Record

In crafting rules for the Restoring Internet Freedom proceeding, the Federal Communications Commission consulted the following sources, all of which are cited in the publicly released draft order ...

The FCC’s net neutrality plan may have even bigger ramifications in light of this obscure court case

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.

Net neutrality supporters predict tough court battle over FCC's repeal plan

Network neutrality supporters are predicting that the Federal Communications Commission will have a hard time defending its decision to repeal its landmark rules in court.  “The draft order seems to say that the FCC is no longer interested in exercising its responsibilities as an expert agency,” said Jonathan Sallet, a former FCC general counsel under the Obama administration. “I do not believe a court of appeals will uphold this order,” he added. Tom Wheeler, the former Democratic FCC Chairman who pushed the rules through in 2015, added that the repeal represents the “successful culmination of a grand plan” by companies like Verizon, Comcast and AT&T. “What we’re talking about here is the Trump FCC, in cooperation with the Republican Congress, taking away existing consumer protections at the request of the industry,” Wheeler said. “This is a classic example of the regulators being captured by those they are supposed to oversee.”  Sen Edward Markey (D-MA) dismissed calls from Republicans to come up with a legislative replacement to the FCC rules, arguing that there’s still a chance to save the regulations. “It’s a very vulnerable decision that they’re about to make,” Sen Markey said. “I think we have a very good chance of prevailing in court.” [Jon Sallet is a Benton Senior Fellow]

What will repealing net neutrality rules mean for communities in rural America?

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.

via KWSN

Reps. Meeks, Cummings, and Pallone Lead Request for GAO Investigation into Fraudulent Identities Submitted to FCC

Reps Gregory Meeks (D-NY), House Oversight Committee Ranking Member Elijah E. Cummings (D-MD), and House Commerce Committee Ranking MemberFrank Pallone, Jr. (D-NJ) led six other Democrats in sending a letter to the Government Accountability Office requesting that it investigate and issue a report that uncovers the extent that outside groups were using false identities during the Federal Communications Commission’s recent network neutrality rulemaking process.  The letter also requests that GAO examine whether this shady practice extends to other agency rulemaking processes. Other Democratic Reps who signed on to the letter include Reps Eliot L. Engel (D-NY), Carolyn B. Maloney (D-NY), Nydia Velasquez (D-NY), Paul Tonko (D-NY), Elizabeth Etsy (D-CT), and Hakeem Jeffries (D-NY). “We understand that the FCC’s rulemaking process requires it to address all comments it receives, regardless of who submits them,” the Members wrote.

House Commerce Committee Chairman Walden "deeply disappointed" FCC Commissioner Rosenworcel asked for net neutrality delay

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.

Public Comments in the World of Massive Multiplayer Regulatory Proceedings

By the time the Federal Communications Commission’s ferociously controversial net neutrality draft Order was released on November 22, 2017, more than 22 million comments were submitted to the FCC through its new application programming interface (API). This avalanche of public input is impossible to navigate and interpret using human labor alone. Machine learning tools are uniquely suited to navigating and interpreting such a large amount of information. Their use, however, implies a new set of problems and rules of engagement for regulatory proceedings in a digital world. When considering this new world, we should keep a couple of facts in mind: Human judgment still matters. Algorithms must be targeted at solving the problems created by the large amounts of data.

FCC Dismisses Appeal of FOIA Decision around Net Neutrality Proposal

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.

How regulating the internet preserves Americans' freedom

[Commentary] It's hard to know what is sadder — that the Tribune’s Editorial Board believes that cat videos are the best thing about the internet or that it picks the interests of fat-cat internet service providers over its readers. Net neutrality is not “a new concept promulgated by the Obama administration,” but a consumer protection concern that dates back at least as far as the George W. Bush administration when then-Federal Communications Commission Chairman Michael Powell outlined four “internet freedoms.” In 2015, the FCC did craft court-approved rules that prevent the companies that provide internet service and own content from interfering with their subscribers’ access or from favoring some internet traffic in exchange for consideration of any kind. Internet service providers are also banned from giving priority to content and services of their affiliates. FCC Chairman Ajit Pai is now proposing to completely eliminate those rules. And it’s not just cute cat videos that are at stake. It’s 21st century education and health services, economic growth, employment, and civic participation. The current net neutrality rules are the law of the land. The changes the Tribune endorses will take away current protections for consumers and innovators. I would say this deregulation is a cat-and-mouse game. But, for us mice, there’s no escape. [Adriannee B. Furniss is the executive director of the Benton Foundation]

Why the FCC's Free-Market Argument for Repealing Net Neutrality Doesn't Hold Up

Net neutrality protests start Dec 7—how to find one near you

Network neutrality supporters plan a nationwide series of protests starting Dec 7 outside Verizon stores, where they will express their opposition to the pending repeal of net neutrality rules. You can find local protests by going to https://events.battleforthenet.com/ and searching by ZIP code.

Reddit flexes its muscle over net neutrality

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.

Small Businesses Rely on Open Internet Protections

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. 

Chairman Pai Falsely Claims Killing Net Neutrality Will Help Sick and Disabled People

via Vice

Remarks of Assistant Secretary Redl at the Phoenix Center 2017 Annual US Telecoms Symposium

This is an exciting time to lead NTIA, which plays a vital role in many important areas of telecommunications, including managing federal spectrum use, promoting investments in broadband infrastructure, and developing policies that improve cybersecurity, Internet governance and more. There is much to celebrate when it comes to the Internet, but there are real problems we need to tackle. Many Americans, especially in rural areas, still can't access broadband at the speeds needed to meaningfully participate in the modern economy. Discussions are ongoing in Congress and in the Administration about how to facilitate the roll out of broadband in unserved areas of the country. I look forward to joining these discussions as a member of the Administration. Because I am no stranger to these issues, I know there is much we can do to encourage infrastructure deployment. This Administration is committed to ensuring America remains the global leader in innovation, and ensuring we have the tools across the U.S. economy will be key to our effort. Advanced manufacturing is one key focus area, and we've already moved to streamline permitting and eliminate unnecessary regulations in this space. One of the most effective steps we can take is to address our nation's broadband future is to maximize use of the country's spectrum resources. Wireless technology already plays a major role in providing broadband access, and that role is likely to increase with 5G deployment. The speed and reliability of 5G also should help unlock the promise of smart cities, connected cars, and the broader Internet of Things, an area where NTIA has long been a thought leader. All of these developments point to a promising future. But they also mean continued demand for spectrum.


The Return of the Techno-Moral Panic

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.

8 antitrust experts on what Trump’s war on CNN means for the AT&T–Time Warner merger

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.

via Vox

The FCC is swiftly changing national media policy. What does that mean on the local level?

The Federal Communications Commission’s anticipated decision on net neutrality has (rightfully) garnered a lot of publicity and scrutiny. The FCC’s repeal of different regulations earlier this fall, however, could reshape a news source often left out of predictions of the industry’s future: local TV newsrooms. When the announcement came in late October that the FCC was killing the main studio rule — no longer requiring AM, FM, and TV stations to maintain a primary studio in or near their local community of broadcast — and the November rollback of broadcast ownership rules in a shift toward greater industry consolidation, it became clear that the local news landscape could be significantly altered yet again. “This current iteration of the FCC is on this deregulatory path,” said Christopher Ali, an assistant professor of telecommunications policy at the University of Virginia.  “The main studio rule was one of the last bastions of localism regulation we have…Everyone keeps saying local is important. Even the FCC keeps saying this. But they’re eliminating the rules that protect localism.”

UHF Discount Foes Tell Court Their Arguments Stand

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."

Big technology firms challenge traditional assumptions about antitrust enforcement

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.

Communications and Democracy

Invoking the specter of Nazi Germany, Obama warns against complacency

American democracy is fragile, and unless care is taken it could follow the path of Nazi Germany in the 1930s. That was the somewhat jaw-dropping bottom line of Barack Obama in a Q&A session before the Economic Club of Chicago, the Chicagoan who used to be president dropped a bit of red meat to a hometown crowd that likely is a lot closer to him than the man whose name never was mentioned: President Donald Trump. The US has survived tough times before and will again, he noted, particularly mentioning the days of communist fighter Joseph McCarthy and former President Richard Nixon. But one reason the country survived is because it had a free press to ask questions, Obama added. Though he has problems with the media just like Trump has had, "what I understood was the principle that the free press was vital." The danger is "grow(ing) complacent," Obama said. Though he has problems with the media just like Trump has had, "what I understood was the principle that the free press was vital." The danger is "grow(ing) complacent," Obama said. "We have to tend to this garden of democracy or else things could fall apart quickly." That's what happened in Germany in the 1930s which, despite the democracy of the Weimar Republic and centuries of high-level cultural and scientific achievements, Adolph Hitler rose to dominate, Obama noted. "Sixty million people died. . . .So, you've got to pay attention. And vote."

Trust, Democracy and Media, and the Evolving Role of Digital Platforms and First Amendment Rights

[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]

via Medium
Stories From Abroad

The coming trade war over data

Technology companies are facing growing international obstacles affecting how their most valuable asset — data — flows across borders. New trade agreements and laws are affecting how companies share and store their troves of data around the world.

via Axios
More Online

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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