Monday, March 11, 2019
Headlines Daily Digest
- Rep Cicilline (D-RI) calls Trump administration's handling of AT&T deal 'very disturbing' | Hill, The
- Q&A with Sen Warren on Breaking Up Big Tech, Including Apple | Vox
- Big Tech Responds to Sen Warren's Proposal to Break Up Amazon, Google, Facebook | nextgov
- Public Knowledge Welcomes Sen. Warren’s Pro-Competition Proposal for Regulating Digital Platforms | Public Knowledge
Communications & Democracy
Stories from Abroad
With much fanfare on March 6, House Speaker Nancy Pelosi (D-CA) and Senate Minority Leader Chuck Schumer (D-NY) launched the Save the Internet Act, legislation that would restore the strong, court-approved net neutrality rules that the Federal Communications Commission repealed in 2017. The legislation, to be introduced by House Communications Subcommittee Chairman Mike Doyle (D-PA) and Senator Ed Markey (D-MA) in their respective chambers, would enshrine the three "bright-line" net neutrality rules – no blocking, no throttling and no paid prioritization – and empower the FCC to prohibit unjust, unreasonable, and discriminatory practices by broadband internet service providers. Democrats are hopeful they’ll be able to convince enough Republicans to vote for the measure in order to avoid a filibuster, but simply getting the bill through Senate committee may be a challenge.The question remains: Can we all agree on net neutrality legislation? Probably not all. But as the next few months unfold, enough of a Congressional majority may exist, finally, to give us what a majority of Americans want: strong, enforceable, net neutrality legislation.
Democrats in Congress say they want to “save the Internet” with a net neutrality law. But they will need Republicans’ help to do it. The bills introduced in the House and Senate this week, unfortunately, are unlikely to inspire any cooperation. The bills introduced this week miss the mark. They bring back Title II. Democratic bills would make permanent limitations on rate-setting and other regulatory practices that have alarmed providers, but the classification is still toxic — and outdated. Lawmakers would do better to focus on the three bright-line prohibitions on which most parties have come to agree. Those are bans on blocking websites and services, as well as slowing them down or speeding them up to favor a company’s own content or in exchange for payment. Any rules should otherwise allow providers to manage congestion on their networks as long as they make those management practices transparent to consumers. Congress should also give the FCC meaningful enforcement authority against harmful and anti-competitive practices along with the ability to write future rules to enforce net neutrality. Lawmakers could call this whatever title number they please — as long as it’s not II.
Federal Communications Commission Chairman Ajit Pai was in Wilmington (DE), defending his office's controversial decision in 2017 to dismantle the country's network neutrality rule. While speaking at a co-working space, Chairman Pai called the recent bill to reinstate net neutrality by Sen Ed Markey (D-MA) and others an "unfortunate political distraction." He said the 2017 "market-based" rule change has unleashed new investments in telecom infrastructure, though it is an assertion that has been disputed by many in the industry. "The last year and a half of experience that we have disproves some of the predictions that were made," he said. "I still have on my desk some of the predictions that said, 'This is the end of the internet.'" Many of the DE tech workers listening were skeptical of – or even disagreed with – the data he presented. Adam Salamon, founder of Pression Inc., said internet infrastructure spending has dropped during the year since the repeal of net neutrality. That occurred despite an extra injection of potential capital from federal corporate tax cuts, passed at the end of 2017, he said.
Responding to critics' main concern, Chairman Pai stated declaratively that a company cannot pay an internet provider to speed up its own website and slow down a competitor's. But he did state – in what might telegraph a future regulatory action – that Google charges publishers to speed up mobile service to their pages. "Google makes a ton of money every year from getting publishers that are struggling to pay them money for the faster delivery of their content," he said. "Is that anti-competitive? Is that pro-competitive? I'm not sure, but what I will say is that it's important for the Federal Trade Commission to evaluate all of those practices on a level playing field."
When it comes to hurting businesses, schools and families in rural Oregon, the Federal Communications Commission decision to pull the plug in 2018 on network neutrality really hurts. As the first senator who introduced net neutrality legislation in the Senate more than a decade ago, I am proud to stand on the front lines of 2019’s national fight for a solution that puts real enforceable net neutrality rules back on the books. Everybody understands consumers must pay a fee to get access to the internet. But Big Cable shouldn’t get to rig the internet for the benefit only of those who can afford to pay more. Instead, the question at the heart of the upcoming debate is, once consumers pay that fee, should they be allowed to go on the internet where they want, when they want, and how they want? I believe the answer to that question is “Yes.”
Rep Anthony Brindisi (D-NY) has introduced the Transparency for Cable Consumers Act to make operators that have been fined by state public service commissions to have to report back to the Federal Communications Commission. Rep Brindisi took to the House floor, saying there was a need for more oversight of cable and broadband providers and citing "price increases, slow internet speeds and baffling fees." Rep Brindisi charged that customers all over the country were getting overcharged by their cable company and don't always get the advertised speed they are paying for, particularly in rural areas. Under the Transparency for Cable Consumers Act, if a cable or internet company is fined by a state Public Service Commission, it would be required to report:
- The number of cable and broadband internet customers in each county;
- The average cable bill and broadband internet bill amounts in each county;
- A full accounting of all fees charged customers in each county; and
- The average broadband internet speeds delivered in each county.
The internet consists of tiny bits of code that move around the world, traveling along wires as thin as a strand of hair strung across the ocean floor. The data zips from New York to Sydney, from Hong Kong to London, in the time it takes you to read this word. Nearly 750,000 miles of cable already connect the continents to support our insatiable demand for communication and entertainment. Companies have typically pooled their resources to collaborate on undersea cable projects, like a freeway for them all to share. But now Google is going its own way, in a first-of-its-kind project connecting the United States to Chile, home to the company’s largest data center in Latin America. In the modern era, telecommunications companies laid most of the cable, but over the past decade American tech giants started taking more control. Google has backed at least 14 cables globally. Amazon, Facebook and Microsoft have invested in others, connecting data centers in North America, South America, Asia, Europe and Africa.
New York government officials still haven't followed through on a July 2018 decision to kick Charter Communications out of the state. Negotiations between Charter and the state have dragged on for months past the original deadline, and the sides say they're getting closer to an agreement that would allow Charter to remain in New York. The state Public Service Commission (PSC) voted on July 27, 2018 to revoke its approval of Charter's 2016 purchase of Time Warner Cable (TWC), after accusing Charter of failing to meet merger-related broadband expansion commitments. The PSC ordered Charter to sell the former TWC system and to file a transition plan within 60 days. But Charter still hasn't had to file that transition plan, and may never have to, because the PSC has repeatedly granted deadline extensions while Charter negotiates with the state. Charter requested yet another extension on March 5, and the PSC granted it the next day, setting a new deadline of May 3, 2019. Charter's filing that asked for an extension said it and the PSC have made "considerable progress" toward a settlement.
The 63-page filing by T-Mobile the week fo March 4 was meant to demonstrate that its purchase of rival Sprint is in the public interest. Yet the filing’s appearance -- which prompted US regulators to pause their review -- had some observers wondering if it’s a sign of trouble for the $26.5 billion deal. “At this stage of the game, filing something elaborate like this is not a sign of strength,” said Andrew Jay Schwartzman, a media lawyer at Georgetown University Law Center. “It’s not the kind of thing you would expect at an advanced stage unless they saw that they were getting pushback that they were trying to address.” “All indications were this would be decided in the next few weeks” but now it appears “they haven’t made the case to the policy makers,” said Gigi Sohn, former aide to previous Federal Communications Commission Tom Wheeler. “They’re still grasping at new theories.” “Are they trying to add a new argument, or bolster an existing argument?” said Blair Levin, a former FCC chief of staff. If T-Mobile is adding a new argument, “it tells us their current arguments may not be working so well.’’
America’s big tech companies have achieved their level of dominance in part based on two strategies: 1) Using Mergers to Limit Competition Using and 2) Proprietary Marketplaces to Limit Competition. My administration would restore competition to the tech sector by taking two major steps: First, by passing legislation that requires large tech platforms to be designated as “Platform Utilities” and broken apart from any participant on that platform. Companies with an annual global revenue of $25 billion or more and that offer to the public an online marketplace, an exchange, or a platform for connecting third parties would be designated as “platform utilities.” Second, my administration would appoint regulators committed to reversing illegal and anti-competitive tech mergers.
With Democrats in control of the House of Representatives, at least one chamber of Congress could be poised to meaningfully update consumer and competition protection rules for the internet age. In doing so, they would be well advised to follow Republican Theodore Roosevelt’s efforts in the industrial age. Today, the internet barons are making the rules for the new economy. Roosevelt’s admonition is simple: There must be a “still higher power” that makes rules for the protection of the public interest.
Today, like a century earlier, the first step in rebalancing between the people and the powerful begins with oversight of the dominant network. Roosevelt spoke of the necessity to “keep the great highways of commerce open alike to all in reasonable and equitable terms.” In the 21st century, that highway is the internet. Keeping it open on a non-discriminatory basis has been labeled “net neutrality.” The second step comes with the establishment of rules for those who ride on the internet. The Trump Federal Trade Commission (FTC) has made noises, but has yet to step up to this challenge. New rules need to supersede the self-interests of internet barons with a basic duty to protect both consumers and competition.
A Q&A with Federal Trade Commission Chairman Joseph Simons.
“We have this over 100-year-old statute that is our main authority,” said Chairman Simons. “And clearly legislators who approved that were not thinking about data security and privacy issues.” In the deregulatory era of the Trump administration, Chairman Simons, 60, a Republican lawyer who has jumped between the public and private sectors for more than 30 years, is a rare voice for strengthening the government’s hand. Chairman Simons has urged Congress to expand the FTC’s privacy-enforcement powers and allow it to impose fines more easily, write new rules and hire more experts. He also says the agency should police how all companies and nonprofits — not just technology companies — collect and handle people’s digital data.
But none of those changes will happen before Chairman Simons must make the most anticipated decision on data privacy in the agency’s history. In the coming weeks, he and the FTC’s four other commissioners are expected to conclude an investigation into whether Facebook violated its promises to protect people’s data. The outcome of the case is seen as a referendum on the government’s ability to rein in tech giants that have amassed incredible wealth and power from collecting and bartering user data.
Several of the draft bills related to privacy in the 116th Congress present concrete signs of an emerging shift in the underlying model for privacy regulation in the current discussion, from one based on consumer choice to another focused on business behavior in handling data. This paper focuses on this key element of the taxonomy—how proposals reflect this shifting paradigm and how the change affects other aspects of privacy protection.
A change in the paradigm of privacy regulation from consumer choice to business behavior means that law will have to supply these checks. Center for Democracy and Technolgy’s categories of per se, unfair data processing activities is one effort to put certain uses out of bounds, but its draft bill does not touch on collection. No matter where boundaries are drawn, some existing business models and practices are bound to fall outside. That will make for some complex drafting discussions and difficult political choices ahead.
Right now, Congress is considering a new federal privacy law, but nearly all of the proposals on the table have ignored the crucial issue of forced-arbitration clauses in consumer contracts. Companies use these clauses to prevent customers from suing them, often leaving no practical options for consumers whose rights have been violated. Arbitration clauses are especially harmful when it comes to the Internet, because almost everything we do online involves a contract. Nobody is going to hire a lawyer to dispute a wrongfully added charge of $5 or $6 on their monthly Internet bill; combining many such claims is often the only feasible way for private citizens to enforce their legal rights. When that route is not available, many potential claims will just never be made. Any new privacy law should include a “private right of action,” meaning a provision that allows individuals to sue someone who violates their rights under the law. If Congress doesn’t do something about arbitration clauses, it will be hard to enforce any new protections.
[Daniel Wilf-Townsend is a lawyer in Washington (DC) who focuses on consumer protection and constitutional litigation at Gupta Wessler PLLC.]
John Oliver took a swipe at HBO's new parent company AT&T during a segment on March 10''s "Last Week Tonight", which saw him decry the increasing amount of robocalls being made in the US and the Federal Communications Commission's unwillingness or inability to do anything about them. "Everybody is annoyed by robocalls; hatred of them might be the only thing everyone in America agrees on now," he said.He cited statistics that said the number of calls increased by 57 percent last year to nearly 50 billion in total. He also showed a news clip noting that robocalls are the No. 1 complaint to the FCC every year, totaling more than 500,000 complaints a year, about 60 percent of all complaints received by the FCC.
Oliver attacked the commissioners for failing to do more to eradicate the spam calls. "If only there were a way to get the FCC's attention," Oliver said. "One way to do that would be if someone had, I don't know, say, the office numbers of all five FCC commissioners. Because then you could, hypothetically, have a program to robocall all of those numbers every 90 minutes with a message, say, oh, I don't know. Like, this." He then played a recorded message that said, in his own voice: "Hi, FCC! This is John from customer service. Congratulations! You’ve just won a chance to lower robocalls in America today. Sorry, but I am a live person. Robocalls are incredibly annoying, and the person who can stop them is you! Talk to you again in 90 minutes. Here’s some bagpipe music." Oliver then pushed a big red button that he said would "unleash hell" on the commissioners.
The Federal Communications Commission will hold an Open Meeting on the subjects listed below on Friday, March 15, 2019:
Spectrum Horizons – The Commission will consider a First Report and Order that would adopt rules to make available 21.2 GHz of spectrum above 95 GHz for unlicensed operations and create a new class of experimental licenses for the 95 GHz to 3 THz spectrum range (ET Docket No. 18-21; RM-11795)
Expanding Broadband to the 900 MHz Band – The Commission will consider a Notice of Proposed Rulemaking that would propose to reconfigure the 900 MHz band to create a broadband segment to facilitate technologies and services for a wide variety of businesses, including critical infrastructure, as well as seek comment on various transition mechanisms to achieve this goal. (WT Docket No. 17-200)
Wireless E911 Location Accuracy Requirements – The Commission will consider a Fourth Further Notice of Proposed Rulemaking that proposes a vertical, or z-axis, location accuracy metric in connection with wireless E911 calls. (PS Docket No. 07-114)
LPTV, TV Translator, and FM Broadcast Station Reimbursement – The Commission will consider a Report and Order that implements Congress’s directive in the Reimbursement Expansion Act that the Commission reimburse certain low power television, television translator, and FM broadcast stations for costs incurred as a result of the Commission’s broadcast television spectrum incentive auction. (MB Docket No. 19-214, GN Docket No. 12-268)
Reauthorizing Television Satellite Stations – The Commission will consider a Report and Order that streamlines the reauthorization process for television satellite stations when they are assigned or transferred. (MB Docket Nos. 18-63, 17-105)
Partitioning, Disaggregation, and Leasing of Spectrum – The Commission will consider a Notice of Proposed Rulemaking that would explore how potential changes to our partitioning, disaggregation, and leasing rules might better close the digital divide and increase spectrum access by small and rural carriers, fulfilling the Commission’s requirement under the MOBILE NOW Act. (WT Docket No. 19-38)
Rural Call Completion – The Commission will consider a Fourth Report and Order to implement the Improving Rural Call Quality and Reliability Act of 2017 by establishing service quality standards for intermediate providers. (WC Docket No. 13-39)
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