Friday, February 1, 2019
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Oral arguments in the case against Ajit Pai's net neutrality repeal are scheduled for Feb 1, and net neutrality advocates are confident that they will be victorious. Courts generally give deference to FCC classifications, so Pai's opponents will have the burden of proving that the FCC's reasoning wasn't legally sound. Net neutrality proponents spoke to reporters about the upcoming oral arguments in a press conference on Jan 30.
On February 1, 2019, the Benton Foundation joins a host of public interest organizations, states, and businesses that are arguing that the United States Court of Appeals for the District of Columbia Circuit should overturn the December 2017 Federal Communications Commission order that eliminated strong, enforceable net neutrality rules. An internet without net neutrality is a threat to free speech and democratic participation online. Without net neutrality protections, broadband providers are free to interfere with lawful content and services. An internet without net neutrality will stifle innovation. Broadband providers will be able to favor their own content and services over that of other speakers and impede new services from ever getting a chance to enter the marketplace. An internet without net neutrality will hurt small businesses most as broadband providers impose fees for priority access to their customers. It’s not just about the breadth of opportunities the internet can deliver, or how swiftly we can grow our economy. Fundamentally, the future of net neutrality is about the future of our democracy and what we as a society are able to achieve together. We will continue to fight for it.
Andrew Jay Schwartzman is the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation (IPR).
[This article was originally published on August 22, 2018]
Aug 20, 2018 was Opening Day for the litigation appealing the Federal Communications Commission’s December 2017 network neutrality decision.
The petitioners are divided into “governmental” and “non-governmental” groups for the filings. The 22 governmental parties are states, counties as welI as the California Public Utility Commission. In addition to the Benton Foundation, the 13 non-governmental petitioners are business and public interest organizations including, among others, Mozilla, Public Knowledge, and a trade association of small telecommunications providers called INCOMPAS. Although these parties are in agreement with each other, there are practical reasons for separate filings; governmental bodies generally cannot file jointly with private parties. In addition, the two-brief structure enables the governmental parties to emphasize matters of unique concern to them.
Broadly speaking, there are three somewhat overlapping categories of challenges: legal, procedural, and factual. The briefs also point to several defects in the agency’s fact-finding as to the evidence it did consider. The first round of briefing in the network neutrality case demonstrates that, at the least, there is a non-frivolous case for reversal.
I thought I would point out some of the more fun arguments that may come up on Feb 1 in the oral argument in Mozilla v. FCC, the challenge to the Restoring Internet Freedom Order (RIFO). As always, keep in mind that oral argument is a perilous guide to the final order, and the judges on the panel have a reputation for peppering both sides with tough questions.
Repeal of Section 257(c) Kills RIFO On A Technicality -- If you read the RIFO, you will find that the FCC systemically eliminated every possible source of FCC authority over broadband and preempted the states from creating their own net neutrality rules, but used Section 257(c) to impose a transparency requirement. After the FCC adopted the RIFO, Congress eliminated Section 257(c) as part of the RAY BAUM’S Act. The cherry on the top of winning this argument is that the major champion of pushing through the RAY BAUM’S Act was then-Representative Marsha Blackburn (R-TN). So if the court accepts this argument, it will be now Senator Marsha Blackburn who accidentally saved net neutrality and Title II.
The FCC Wins on Reclassification and Loses on Preemption: The Trump Administration and the ISP industry have challenged various state net neutrality laws on the grounds that the FCC preempted them. Given that we are going to spend a chunk of time at oral argument on this, it’s kind of a surprise that no one has really talked about what would be the ISP’s worst possible result — no federal rule, an FCC powerless to preempt the states, and 50 different state rules.
A Q&A with Harvard Law School professor Susan Crawford. She explains how America’s internet connectivity issues and corrosive infrastructure are holding the country back and how we can rally to fix it.
Internet access is an indispensable determining factor when it comes to opportunities and resources. Susan Crawford, author and Harvard Law professor, reflects on the monopoly that companies hold over the service, quality and availability of fiber optic internet service. She points out that with little to no government regulatory infrastructure, or representatives with the necessary know-how, provider incentives rarely align with the public’s best interest. “My fear is that we’ve lost the idea that government actually helps people have better lives,” she wrote.
Government Technology editorial staff reviewed each State of the State adress across the country and rated it from 1 to 5 based on the strength of its technology initiatives.
In easily the most often discussed tech-related priority, about half of governors got specific about the importance of continuing to work on extending the benefits of high-speed Internet to every corner of their state. Incoming Gov Ralph Northam (D-VA) said it was the top issue identified by his constituents, while many others included specific budget requests for broadband in their speeches. Gov Jared Polis (D-CO) offered a familiar sentiment on connectivity: “In the 21st-century economy, broadband is critical infrastructure that everyone must have access to,” he said, asking the Legislature to join him in delivering for Coloradans. Gov Doug Burgum (R-ND) again delivered a tech-heavy speech, asking lawmakers to support nearly $200 million in IT infrastructure improvements to strengthen cybersecurity and modernize key programs with updated tools. .
At State of the Net, much of Federal Communications Commissioner Brendan Carr's speech focused on 5G and on the "real challenge" from China, which he said has deployed 5G at five times the pace of the US -- a timely comment in the midst of the Huawei controversy. He stopped short of promising special consideration for US 5G projects, but he cautioned against establishing policy barriers. "I want to let the private sector compete" without restraints from local government agencies, on topics such as tower deployment, he said. Commissioner Carr stressed that, "2019 will be the year of 5G," which will trigger "massive infrastructure" construction and "lots of new jobs."
Mayors expressed optimism a new House bill could provide an alternative path to overturning a Federal Communications Commission order preempting local authority over fifth-generation wireless deployments. H.R. 530, authored by Rep. Anna Eshoo (D-CA), would undo rules that went into partial effect on Jan. 14 requiring cities to move on wireless providers’ small cell applications within set timeframes while capping fees to access public rights of way. FCC restrictions on the aesthetic limits cities can impose on providers take effect April 15, unless Congress acts or cities led by Portland, Oregon, are successful in their lawsuit against the commission pending in the 9th US Circuit Court of Appeals asserting irreparable harm. While the suing cities’ attempt to stay the FCC order failed in the 10th Circuit, their cases were shifted to the 9th Circuit. The move should give cities “home-field advantage” because the FCC order overturned two long-standing rulings by that court, said Gerry Lederer, partner at the law firm Best Best & Krieger. If the order is overturned, the FCC would be back to square one, said Alex Hoehn-Saric, chief counsel with the House Subcommittee on Communications and Technology.
Schools and libraries rely on the Federal Communications Commission’s E-Rate program to ensure that they can receive affordable, high-speed broadband so they can connect today’s students with next-generation learning opportunities. An FCC decision in 2000 limited E-Rate’s use for this purpose by requiring schools and libraries to amortize over three years upfront, non-recurring charges of $500,000 or more, including charges for special construction projects. This amortization requirement increased costs for E-Rate supported builds and created uncertainty for applicants about the availability of E-Rate funding for the second and third years of the amortization cycle. In 2014, the Commission suspended the requirement through funding year 2018 in order to lower these barriers to broadband infrastructure investment.
Our experience over the past few years suggests that allowing the amortization requirement to be restored would decrease broadband investment while increasing administrative burdens, and that eliminating the requirement would not create a drain on E-Rate funding. Therefore, we now propose to eliminate the amortization requirement and we waive the requirement for the duration of this rulemaking. Through these measures, we seek to further the Commission’s goal of closing the digital divide by facilitating and promoting increased broadband infrastructure deployment to our nation’s schools and libraries.
House Antitrust Subcommittee Chairman David Cicilline (D-RI) opened the State of the Net program with strong words about Google's perceived anti-competitive behavior, both as a gatekeeper and for its buying splurge in which it has gobbled up smaller firms. This "concentration of power" creates "pernicious impacts on a free and diverse press," Chairman Cicilline said, especially "in the absence of a competitive marketplace." He cited reports on Google's ability to manipulate traffic on its ad networks as well as with its readers and users. All of this affects "legacy news companies and digital publishers alike," Cicilline said. "The free and open internet...is incompatible with this trend toward centralization online." "It's vital that the House Antitrust Subcommittee takes up these matters in a top-to-bottom investigation [to determine] whether use of market power harms the competitive process online," he said. "We cannot have a democracy without a free and diverse press"....one that gives publishers "a level playing field to negotiate with dominant platforms." Chairman Cicilline said his subcommittee's hearings will "build a record to document anti-competitive behavior to develop a deep understanding of these markets in exploring every tool for preventing" abuses by platform operators.
Chairman Cicilline used the attack on Google as prelude to announce that he is reintroducing his 2018 “Journalism Competition and Preservation Act," which would create safe harbor for news publishers to negotiate business arrangements collectively with Google, Facebook, and other platforms.
Twitter revealed that it had removed thousands of malicious accounts thought to have originated in Iran, Russia and Venezuela for spreading disinformation online, including previously undisclosed efforts to target the 2018 US midterm election. In the months before American voters went to the polls, some of these campaigns with foreign ties sought to stoke social and political unrest around hot-button issues, the company said, echoing tactics that social-media companies have spent two years trying to counter. The approach had been adopted by the Internet Research Agency (IRA), an organization with ties to the Russian government, two years earlier in an attempt to steer the 2016 presidential election in favor of Donald Trump. Twitter said it removed 418 accounts thought to have originated in Russia before Election Day last November but declined to specify exactly when and said it could not link the efforts definitively to the IRA. Carlos Monje, Jr., Twitter's director of public policy, said foreign attempts to manipulate Twitter were “far less” prevalent than in 2016.
The steady loss of local newspapers and journalists across the country contributes to the nation’s political polarization, a new study has found. According to research published in the Journal of Communication, with fewer opportunities to find out about local politicians, citizens are more likely to turn to national sources like cable news and apply their feelings about national politics to people running for the town council or state legislature. The result is much less “split ticket” voting, or people whose ballot includes votes for people of different parties. In 1992, 37 percent of states with Senate races elected a senator from a different party than the presidential candidate the state supported. In 2016, for the first time in a century, no state did that, the study found.
This report offers an analysis of the past two and a half years of net neutrality enforcement in the European Union. We examine the current situation on the telecom market in Europe with a particular focus on differential pricing practices (e.g. zero-rating). This report aims at informing the debate on the ongoing reform of Europe’s net neutrality framework in light of the new moaile network standard 5G.
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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