Daily Digest 3/01/2018 (Like a Lion)

Every week, a motley crew of tech wonks and legal experts meet in Washington to discuss the problem they've been grappling with for almost a year now: how to save the Federal Communications Commission's net neutrality rules. Of the 70 to 80 regulars in the gathering, a few hail from industry groups such as the Internet Association — one of Silicon Valley's biggest lobbying operations — or the small-telco trade association INCOMPAS, according to people familiar with the matter. There are a handful of state attorneys general, some of whom have sued the FCC to block its recent move to deregulate Internet providers. There are policy experts from tech giants such as Facebook and Twitter, who at one point or another have weighed in on the net neutrality debate but whose fortunes in Washington have worsened as the political winds have shifted against them over the past year. And there are consumer groups, such as Free Press and Public Knowledge, who have waged a grass-roots campaign to keep the FCC from letting Internet providers block or slow websites. This massive yet inconspicuous alliance draws together the combined firepower of those calling for tougher regulations for Internet service providers (ISPs) at a time of increasing consolidation in the industry. But with the debate on net neutrality shifting toward Congress after the FCC decided last year to repeal its net neutrality rules, the group's members are divided on how best to channel their energies on Capitol Hill.

[Editor's note: The Benton Foundation supports strong net neutrality rules, has filed a court challenge to the repeal of the rules, and attends the weekly meetings mentioned above. Although a participant in these meetings, as a private foundation, Benton is prohibited from  any activity that attempts to influence or expresses a view about specific legislation.]

Commissioner Brendan Carr of the Federal Communications Commission announced a new plan to advance 5G deployment in the U.S. A key obstacle is our country’s outdated infrastructure regulations, which were written for previous generations of wireless technology. To ensure the U.S. is 5G Ready, he announced that the FCC will vote at its March 22 Open Meeting on a plan to streamline the federal historic and environmental review procedures that apply to wireless infrastructure deployments. 

The Plan

• Exclude small wireless facilities from the environmental and historic review procedures that were designed for large, macrocell deployments by determining that they are neither “federal undertakings” nor “major federal actions.” This is projected to reduce the regulatory costs of small cell deployment by 80 percent, cut deployment timelines in half, and expand 5G deployments.
• Streamline the historic review procedures that will continue applying to larger wireless deployments by updating the Section 106 Tribal consultation process to address up-front fees, clarify the consultation process, and adopt a clear timeline within which deployments can commence when a Tribe does not respond. These reforms will only apply to deployments located off of Tribal lands and outside of reservation boundaries.
• Revise the FCC’s approach to environmental reviews by adopting a shot clock for the FCC’s own processing of Environmental Assessments (EAs) and, for deployments in floodplains, clarifying that EAs need not be filed for deployments one foot above the base flood elevation.

The Federal Communications Commission has released a detailed map of eligibility for its Mobility Fund Phase II (MF-II) auction, designed to help bring 4G LTE service to rural areas. The map indicates which areas of the country are “presumed eligible” for the MF-II auction. Most of the eligibility is dispersed throughout the western half of the US. States with the most coverage -- indicating areas with less access to 4G LTE -- include North Dakota, South Dakota, Nebraska, Montana, Idaho, Washington, Oregon, Nevada, Utah, California, Nevada, Arizona, New Mexico and Colorado. In the eastern side of the country, eligible areas are found in states Iowa, Wisconsin, Kentucky, West Virginia and Virginia, and parts of New York and Maine. However, the CCA -- the trade association representing the nation's smaller wireless carriers -- said the FCC's new map falls short of expectations.

A majority of Americans are now concerned that the government won't do enough to regulate how US technology companies operate, according to an Axios-SurveyMonkey poll. Across the board, concern about government inaction is up significantly — 15 percentage points — in the past three months. In a previous Axios-SurveyMonkey poll in November, just after Facebook, Google and Twitter testified before Congress, only about four in 10 Americans were concerned that the government wouldn't do enough to regulate the tech companies. Now that number has jumped to 55 percent. Notably, 45 percent of Republicans — who are usually skeptical about government regulation — share the concern that government won't do enough. Independents showed the biggest shift with an increase of 20 percentage points. More than eight in 10 — including big majorities across party lines — blame the technology companies for not doing more to safeguard their platforms against election interference. When asked whether social media does more to help promote democracy and free speech or does more to hurt democracy and free speech, most Americans (55 percent) now say social media does more to hurt democracy and free speech than it helps.

Multisided platforms are ubiquitous in today’s economy. Although newspapers demonstrate that the platform business model is scarcely new, recent economic analysis has explored more deeply the manner of its operation. Drawing upon these insights, we conclude that enforcers and courts should use a multiple-markets approach in which different groups of users on different sides of a platform belong in different product markets. This approach appropriately accounts for cross-market network effects without collapsing all of a platform’s users into a single product market. Furthermore, we advocate the use of a separate-effects analysis, which rejects the view that anticompetitive conduct harming users on one side of a platform can be justified so long as that harm funds benefits for users on another side. Courts should consider the price structure, and not simply the net price, of a platform in assessing competitive effects. This approach in turn supports our final conclusion: that antitrust plaintiffs should not be required to prove as part of their prima facie case more than occurrence of competitive harm in a properly-defined market; thereafter, the burden to produce procompetitive justifications should shift to defendants.

[Jonathan Sallet is a Senior Fellow at the Benton Foundation. Michael Katz is the Edward J. & Mollie Arnold Professor of Business at the University of California, Berkeley.]

The Federal Trade Commission has reached a settlement with PayPal over allegations that the company told users of its Venmo peer-to-peer payment service that money credited to their Venmo balances could be transferred to external bank accounts without adequately disclosing that the transactions were still subject to review and that funds could be frozen or removed. In its complaint, the FTC also charges that Venmo misled consumers about the extent to which they could control the privacy of their transactions. In addition, Venmo misrepresented the extent to which consumers’ financial accounts were protected by “bank grade security systems,” and violated the Gramm-Leach-Bliley Act’s Safeguards and Privacy Rules, the complaint alleges.

Apparently, special counsel Robert Mueller's team is asking witnesses pointed questions about whether Donald Trump was aware that Democratic e-mails had been stolen before that was publicly known, and whether he was involved in their strategic release. Mueller's investigators have asked witnesses whether Trump was aware of plans for WikiLeaks to publish the e-mails. They have also asked about the relationship between GOP operative Roger Stone and WikiLeaks founder Julian Assange, and why President Trump took policy positions favorable to Russia.

[Commentary] While the academic jury is still out on whether a person getting their news from social media makes them any more or less partisan than those who sought out right-wing talk radio or lefty political journals a generation ago, there exists another filter bubble that, while it’s received relatively little public attention, affects the majority of people reading this article: The average producer of online content is far more internet-savvy than the average consumer of online content.  While it’s always been expected that journalists and intellectuals be more knowledgeable about their beats or fields of study than the general population, the internet (and specifically Twitter) has a universalizing effect, making it easy to assume that because you and everyone in your circle is perpetually Online that everyone else is, too. [Kevin Munger is a PhD Candidate in the Department of Politics at NYU and a member of the University's Social Media and Political Participation lab.]

Hope Hicks, the White House Communications Director and one of President Donald Trump’s longest-serving and closest political advisers, said that she is leaving the administration sometime in the next few weeks. Hicks, 29, began working for Trump before he announced his candidacy and has been a constant at his side over the past three years, managing his public image and advising him on policy and other matters. A political neophyte, Hicks exerted extraordinary influence in the White House as arguably Trump’s most trusted aide. The announcement of her departure comes one day after Hicks testified for a full day Tuesday before the House Intelligence Committee in its investigation of Russian interference in the 2016 election.