Daily Digest 1/19/2018 (Net Neutrality; Broadband Deployment; NSA Surveillance)

As citizens increasingly use digital tools to engage with government, federal agencies should weed out fake comments to create a more robust public comment system. If agencies are required to solicit public input, it should take on a form that the agency can easy incorporate into new rules. The Administrative Procedures Act could not have anticipated the digital communications tools available to citizens seven decades later. An updated method of collecting feedback would require commenters to verify their identity, or at least verify they are human. Another approach would automate the search for the search for spam comments, pitting spam bots against spam filters. However, the filtering out of fraudulent comments should be used not discourage authentic commentary from interested individuals. Creating a universal, easy-to-use interface for public comments would increase participation without diminishing the quality of comments. With a more secure online comments system, voters would feel more confident that agencies seriously consider their input.

There is a great deal of excitement, but also a great deal of misunderstanding, about the effort to “repeal the repeal” of network neutrality using the Congressional Review Act (CRA). On the one hand, we have folks who are confused by the enormous progress made so far and think that we are just one vote shy of repealing the repeal. On the other extreme, we have the folks declaring the effort totally doomed and impossible from the start. I discuss the details of a CRA, and why I think we can win this (and even if we don’t, why it still works in our favor overall), below. Here are the big takeaways. First, while the momentum on the CRA has been incredibly strong, we still have a considerable way to go in terms of time and process. Sen Ed Markey (D-MA) and Rep Mike Doyle (D-PA) cannot even introduce the actual resolution of disapproval until the Federal Communications Commission repeal order is published in the Federal Register (which could happen any day now, but could also take awhile). After that, it will still be 20 legislative days before CRA supporters can force a vote in the Senate. Even assuming net neutrality supporters find another Republican vote in the Senate, we still need to move past the House and then generate enough political pressure that President Donald Trump feels compelled to sign it. Meanwhile, the clock for this particular maneuver will run out 60 legislative days after Federal Register publication — which probably means April and almost certainly no later than Memorial Day. [Harold Feld]

Federal Communications Commission Chairman Ajit Pai has circulated a draft 2018 Broadband Deployment Report to his colleagues and below are the key findings and additional information:

• The 25/3 speed benchmark is maintained. The draft report finds that the current speed benchmark of 25 Mbps/3 Mbps remains an appropriate measure by which to assess whether a fixed service provides advanced telecommunications capability.
• Mobile services are not full substitutes for fixed services—there are salient differences between the two technologies. Both fixed and mobile services can enable access to information, entertainment, and employment options, but there are salient differences between the two. Beyond the most obvious distinction that mobile services permit user mobility, there are clear variations in consumer preferences and demands for fixed and mobile services.
• Because fixed services and mobile services are not full substitutes, it is important to evaluate progress in deploying fixed broadband service as well as progress in deploying mobile broadband service. 
• Analyzing broadband deployment progress is most consistent with the language of section 706. 
• Since the last report, the FCC has taken many steps to encourage broadband deployment. 
• Due to these efforts, the draft report concludes that the FCC is now meeting its statutory mandate to encourage the deployment of broadband on a reasonable and timely basis.
• Broadband deployment remains the FCC’s top priority.

Following circulation of the draft report, Chairman Pai said, "The draft report indicates that the pace of both fixed and mobile broadband deployment declined dramatically in the two years following the prior Commission’s Title II Order. However, the draft report also discussed how, over the course of the past year, the current Commission has taken steps to reduce barriers to infrastructure investment and promote competition in the broadband marketplace. Taken together, these policies indicate that the current FCC is now meeting its statutory mandate to encourage the deployment of broadband on a reasonable and timely basis. But while we are now headed in the right direction, our work has just begun. Far too many Americans still lack access to high-speed Internet, and that’s why the FCC’s top priority under my leadership remains bridging the digital divide and bringing digital opportunity to all Americans.”

FCC Commissioner Mignon Clyburn said, "By the FCC’s own admission, over 24 million Americans are still without high-speed broadband access where they live. For years telecom companies and government officials have promised Americans that 'soon' they will have affordable, high-speed broadband. Yet millions continue to wait, hoping that this vital connection will bring economic development and prosperity to their community....  So how can this agency now claim that broadband is being deployed to all Americans in a reasonable and timely fashion? Only by repeating the majority’s tired and debunked claims that broadband investment and innovation screeched to a halt in 2015. While my initial review of Chairman Pai’s draft report raises serious concerns, I acknowledge that it addresses one of my concerns by now correctly concluding that mobile and fixed connectivity are not substitutes. I look forward to carefully reviewing the findings presented in the draft report."

With a great amount of fanfare, Google picked Kansas City as its first Google Fiber city in July 2012. But the community’s commitment to full digital inclusion predates and runs much deeper than Google Fiber. Connecting for Good is one of Kansas City’s key digital inclusion partners. Michael Liimatta and Rick Deane knew each other through different community activities when, in 2011, they brainstormed the idea of Connecting for Good and found in it a mission they could share. The first year of the organization was built on their sweat equity, and they quickly realized that funding would be required to sustain operations. Deane had been involved with the Kansas City Neighborhood Alliance (KCNA), a (now-defunct) organization focused on community rehabilitation (outreach and cleanup projects) as well as housing and utility development in low-income pockets of the city. Liimatta wanted Connecting for Good to be seen as an authority on digital inclusion. He designed the organization’s website to be a resource for those who wanted to learn more about the digital divide. The website, as well as a strong social media presence, helped brand the organization. Connecting for Good became a founding leader in the digital inclusion movement. News outlets knew to call the organization when reporting on digital inclusion issues.. And, in 2015, Kauffman renewed its support with an additional $75,000 to fund staff capacity, professional development, and fundraising strategies. [Matthew Kopel is Program Manager at the National Digital Inclusion Alliance]

Apparently, President Donald Trump personally made the decision to curtail the testimony of former chief White House political strategist Steve Bannon before the House Intelligence Committee.  President Trump acted to limit Bannon’s testimony based on legal advice provided by Uttam Dhillon, a deputy White House counsel, who concluded that the administration might have legitimate executive privilege claims to restrict testimony by Bannon and other current and former aides to the president, apparently. But Dhillon has also concluded that Bannon and other current and former Trump administration officials do not have legitimate claims to executive privilege when it comes to providing information or testimony to special counsel Robert Mueller. Mueller is investigating whether anyone associated with Trump colluded with Russia to interfere in the 2016 U.S. presidential election. Dhillon’s private and previously unreported legal advice to President Trump could ultimately go against the president’s interest, however, by making it increasingly difficult for any administration official — or even a member of the president’s family who advises Trump — to refuse to provide information to Mueller.

[Commentary] There is a justified fear that the tech titans will use their power to protect and extend their dominance, to the detriment of consumers. The tricky task for policymakers is to restrain them without unduly stifling innovation.  Two broad changes of thinking would go a long way towards sensibly taming the titans. The first is to make better use of existing competition law. Trustbusters should scrutinise mergers to gauge whether a deal is likely to neutralise a potential long-term threat, even if the target is small at the time. Second, trustbusters need to think afresh about how tech markets work. A central insight, one increasingly discussed among economists and regulators, is that personal data are the currency in which customers actually buy services. Through that prism, the tech titans receive valuable information—on their users’ behaviour, friends and purchasing habits—in return for their products. Just as America drew up sophisticated rules about intellectual property in the 19th century, so it needs a new set of laws to govern the ownership and exchange of data, with the aim of giving solid rights to individuals.

The most ideological members of Congress shared news stories on their Facebook pages more than twice as often as moderate legislators between Jan. 2, 2015, and July 20, 2017. Members of Congress with very conservative or very liberal voting records shared news links in about 14% of all their posts. But members with more moderate ideology scores shared links to news stories in just 6% of their posts. Some of the outlets included in the study were linked to exclusively by Democrats or by Republicans in Congress. The most conservative Republicans shared news from these outlets almost 10 times as much as the most moderate Republicans. Among the most conservative Republicans, 11% of news links went to outlets exclusively shared by other Republicans. But among the most moderate Republicans, only 1% of news links that members shared on Facebook were to such outlets. There was little difference among Democrats in the rate of sharing news from outlets linked to exclusively by Democrats across the ideological spectrum. Overall, 5% of the news links that members of Congress shared on Facebook went to outlets linked to exclusively by Democrats or by Republicans. Among Democrats, these outlets included The Nation, Mic.com, The Root and New Republic. Among Republicans, these outlets included Breitbart, The Daily Signal, The Blaze, CNS News, Conservative Review, The Federalist and several other sites.

The Senate Commerce Committee has narrowly--14 to 13-- FCC Commissioner Brendan Carr for a full, five-year, term on the Federal Communications Commission. Carr is currently serving out the unexpired term of former chair Tom Wheeler, which expires in June. His nomination, which was sent to the committee the week of Jan 8, now goes to the full Senate for a vote. If Carr is confirmed by a Senate floor vote, his full five-year term will begin on July 1.

Federal Communications Commission Chairman Ajit Pai announced the appointment of Nirali Patel as Special Counsel. Patel joins the Office of the Chairman from the Office of Commissioner Brendan Carr, where she has been serving as a Legal Advisor since August 2017. As a Legal Advisor to Commissioner Carr, Patel advised on media, wireless, public safety, international, consumer protection, and enforcement matters. Prior to that, she served as a Deputy Chief in the Competition Policy Division of the Wireline Competition Bureau. Before joining the Commission in January 2017, Patel was Counsel in the Technology, Media, and Telecommunications practice of Hogan Lovells US LLP. Previously, she practiced communications law at Willkie Farr & Gallagher LLP and Sidley Austin LLP. Patel graduated summa cum laude from the American University Washington College of Law and received her undergraduate degree from the University of North Carolina at Chapel Hill.