February 2015

INTERNET/BROADBAND

THE GOP'S NEXT EXAMPLE OF PRESIDENT OBAMA'S EXECUTIVE OVERREACH
[SOURCE: National Journal, AUTHOR: Dustin Volz]
Republicans have lost the network neutrality fight. But that doesn't mean they'll stop talking about the issue. The Federal Communications Commission is on the precipice of voting to enact White House-backed regulations that would reclassify broadband Internet as a utility and block so-called "fast lanes" on mobile and Internet devices. Republicans in Congress and on the 2016 campaign trail already have shown an eagerness to portray the vote as another example of executive overreach by the Obama Administration. They plan to continue slamming the president for avoiding Congress in a similar vein to recent executive actions on immigration, Cuba, and environmental regulations. These kind of headline-grabbing "King Obama" attacks underscore a belief that if Republicans can't win a debate about net neutrality, they can at least win by using it as another prop to denounce what they see as a series of cavalier power grabs by the Obama Administration.
benton.org/headlines/gops-next-example-president-obamas-executive-overreach | National Journal
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FCC COMMISSIONERS AJIT PAI AND MIKE O'RIELLY REQUEST PUBLIC RELEASE OF INTERNET REGULATION PLAN AND TEMPORARY DELAY OF VOTE
[SOURCE: Federal Communications Commission, AUTHOR: FCC Commissioner Ajit Pai, FCC Commissioner Michael O'Rielly]
We respectfully request that Federal Communications Commission leadership immediately release the 332-page Internet regulation plan publicly and allow the American people a reasonable period of not less than 30 days to carefully study it. Then, after the FCC reviews the specific input it receives from the American public and makes any modifications to the plan as appropriate, we could proceed to a final vote. With the future of the entire Internet at stake, it is imperative that the FCC get this right. And to do that, we must live up to the highest standards of transparency. Transparency is particularly important here because the plan in front of us right now is so drastically different than the proposal the FCC adopted and put out for public comment last May. An independent survey found that 79 percent of Americans favored releasing the plan prior to any FCC vote. Transparency and good process shouldn’t be a partisan issue. In 2003, for example, Democratic Commissioners Michael Copps and Jonathan Adelstein called for a delay of the vote on reforming the FCC’s media ownership rules and a public airing of the FCC’s proposal. Their words then echo now: “A public airing would make for better policies. It would make for better buy-in from the American people.” We similarly urge our colleagues to join us and allow the American people to review the proposed Internet regulations before we hold a vote. To do anything less puts at risk the Internet and all of the benefits it brings to the American people.
benton.org/headlines/fcc-commissioners-ajit-pai-and-mike-orielly-request-public-release-internet-regulation | Federal Communications Commission
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CHAIRMAN CHAFFETZ CALLS FOR FCC CHIEF WHEELER TO RELEASE NET NEUTRALITY RULES
[SOURCE: USAToday, AUTHOR: Mike Snider]
House Oversight Committee Chairman Jason Chaffetz (R-UT) called for Federal Communications Commission Chairman Tom Wheeler to make proposed network neutrality regulations public before a planned Feb. 26 vote on the measure. FCC Commissioners Ajit Pai and Michael O'Rielly also asked for Chairman Wheeler to release the proposal to the public and postpone the Feb. 26 vote to allow for 30 days of public comment. Additionally, Chairman Chaffetz sent a letter to Chairman Wheeler, questioning whether the FCC has been "independent, fair and transparent' in crafting the rules to protect content on the Internet. The congressman also asked Chairman Wheeler to reconsider testifying at a House Committee on Oversight & Government Reform hearing Feb 25 and allow for a period of public review before the FCC votes on the regulations.
benton.org/headlines/chairman-chaffetz-calls-fcc-chief-wheeler-release-net-neutrality-rules | USAToday
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INTERNET FREEDOM WORKS
[SOURCE: Politico, AUTHOR: FCC Commissioner Ajit Pai, FEC Commissioner Lee Goodman]
[Commentary] In the face of the greatest technological empowerment of people in the history of the world, why are regulators at our respective agencies, the Federal Communications Commission and the Federal Election Commission, calling for new government regulation of the Internet? The answer is simple. Unfortunately, some see any realm of freedom as a vacuum in need of government control. For its part, the FCC is about to scrap a Clinton-era bipartisan consensus that the Internet should be free from intrusive government regulation. On Feb. 26, the agency will likely vote to impose rules upon almost every nut and bolt of the Internet, from the digital connection at your house to the core of the network. In so doing, it’ll dust off the heavy-handed monopoly rules designed for Ma Bell back in the 1930s. So why is the FCC swinging the regulatory sledgehammer? It’s not to guarantee an open Internet. No, the purpose is control for control’s sake. Digital dysfunction must be conjured into being to justify a public-sector power grab. While the FCC is inserting government bureaucracy into all aspects of Internet access, the FEC is debating whether to regulate Internet content, specifically political speech posted for free online.
benton.org/headlines/internet-freedom-works | Politico
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TITLE II, ROBERT MCDOWELL, AND THE BOY WHO CRIED 'BLACK HELICOPTER.'
[SOURCE: Tales of the Sausage Factory, AUTHOR: Harold Feld]
[Commentary] I noted with some considerable interest the February 17 Wall Street Journal Op Ed by Robert McDowell, a former Commissioner of the Federal Communications Commission, and Gordon M. Goldstein describing how reclassifying broadband as a Title II telecommunications service will invariably lead to “the International Telecommunications Union (ITU), a regulatory arm of the United Nations” asserting jurisdiction over the Internet. As a consequence, McDowell warns us, the ITU will allow freedom-hating dictatorships such as Russia and China to take control of “Internet governance,” extend censorship to the Internet, and generally crush freedom-as-we-know-it. “The UN Black Helicopters will swoop down and carry off our Internet if we try to reign in carriers from abusing consumers and adopt real net neutrality” has become a perennial favorite for McDowell and some others. Despite making the same wrong prediction about the ITU for the last 5 years, we will once again see Robert McDowell and the usual suspects singing backup that reclassifying broadband will serve the nefarious agenda of Russia, China and anyone else we don’t like by allowing the UN to swoop in with their black helicopters and carry off our Internet and crush our freedoms. Despite 5 years of false predictions and a wealth of evidence and debunkers explaining why what the FCC does on Title II has zero impact on what happens at the UN, people still take this argument seriously.
benton.org/headlines/title-ii-robert-mcdowell-and-they-boy-who-cried-black-helicopter | Tales of the Sausage Factory
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WIRELESS PRECEDENT
[SOURCE: Los Angeles Times, AUTHOR: Jim Puzzanghera]
The first Internet browser had just been launched, people were experimenting with a new form of letter-writing called e-mail and the cellular telephone was evolving from a bulky luxury to a mass-market convenience. The communications landscape was shifting rapidly in 1993 when Congress made a little-noticed change that classified mobile voice calling as a utility yet freed it from onerous utility regulation -- part of an initiative to spur competition in the young wireless industry. Federal Communications Commission Chairman Tom Wheeler now cites that move as a key precedent for the controversial net neutrality proposal that the agency is expected to approve Feb 26. His plan would impose federal oversight of online traffic to ensure that Internet providers don't give preference to video and other content from some websites over others. But he promised that the FCC wouldn't use the new authority to regulate rates or take other steps that would hinder investment in expanding fiber and wireless networks. Instead, the FCC would use the same light-touch approach that came after the 1993 legislation and that "went hand-in-hand with massive investment" in wireless networks, said Chairman Wheeler, who was a top industry lobbyist at the time.
benton.org/headlines/fcc-chief-cites-wireless-industry-precedent-network-neutrality-proposal | Los Angeles Times
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THE FCC'S LEGAL GYMNASTICS
[SOURCE: Multichannel News, AUTHOR: Lawrence Spiwak]
[Commentary] To ensure the Title II proposal passes the “giggle test” with a reviewing court, the Federal Communications Commission will engage in more legal gymnastics than a Cirque du Soleil show on the Las Vegas Strip. The first hoop the FCC needs to jump through is to explain why its original finding that broadband Internet access is a Title I information service (upheld by the Supreme Court in the 2005 NCTA vs. Brand X case) is now wrong. Assuming the FCC can get past the Brand X problem, it must then provide an explanation for forbearing from mandatory tariffing of retail broadband service and for the terminating access service needed by edge providers to reach customers. If the FCC is nevertheless successful in convincing the court on forbearance in the face of monopoly, how will it reconcile this reasoning with its decisions both to suspend special-access deregulation because it found that two firms (a duopoly) in the relevant market were insufficient to constrain prices and to deny Qwest’s petition to forbear from residual unbundling obligations in the Phoenix MSA because it also found that duopoly was insufficient to constrain pricing (a decision that was upheld by the 10th Circuit)? What’s changed, other than the politics? Given that the FCC’s anticipated 332-page order is likely to be driven more by naked politics than thoughtful analysis, the possibilities for legal missteps are endless. Let the litigation begin.
[Lawrence Spiwak is President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies]
benton.org/headlines/fccs-legal-gymnastics | Multichannel News
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APPLYING TITLE II
[SOURCE: American Enterprise Institute, AUTHOR: Mark Jamison]
[Commentary] Is there a way for the FCC to apply Title II regulations to the Internet without embarrassing itself? Yes, but it would require a change in direction. “Title II” is the section of the Communications Act that was intended to regulate monopoly telephone companies as public utilities. Its roots go far back in history, but an effective starting place for understanding Title II is an 1876 Supreme Court case, Munn v. Illinois. The case involved grain elevators that the court found were situated uniquely between a river harbor and railroad tracks, giving the elevators monopoly control over grain movements from farmers in certain Midwestern states to markets on the East coast. The elevators extracted economic rent to such an extent that they seriously hindered the agricultural economies in the affected areas. Through Munn and some subsequent cases, the court formulated a two-part test to determine whether a business should be regulated as a utility under Title II. The first part stated that a firm must have the potential for exploitation or extortion because of its monopoly power. The second part said that the business’s service has to be construed as a necessity, i.e., fundamental to a community’s well-being. Unfortunately the FCC is discarding the economic and legal logic underlying Title II by ignoring the first test: that of possessing monopoly power sufficient to exploit and extort. Applying this test would diminish greatly the damage done by adopting Title II.
[Jamison is the director and Gunter Professor of the Public Utility Research Center at the University of Florida and serves as its director of telecommunications studies]
benton.org/headlines/applying-title-ii-without-embarrassment | American Enterprise Institute
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TWITTER WANTS AGGRESSIVE NET NEUTRALITY RULES
[SOURCE: Washington Post, AUTHOR: Brian Fung]
Days ahead of a vote by federal regulators on the future of the Web, Twitter is coming out in support of the government's plan to treat Internet providers more like traditional phone service. Twitter says that it previously backed "common sense net neutrality rules" through a Washington trade group, the Internet Association. But now the company is going further. Independently, Twitter is arguing that the Federal Communications Commission should move ahead with the most aggressive rules ever proposed for Internet providers -- to be sure that they don't unfairly speed up or slow down some sites over others or create Internet "fast lanes" that give wealthy firms an advantage over smaller ones. Beyond endorsing some of these provisions, Twitter says it's "pleased" about the possibility of Congress tackling net neutrality -- but the company stopped short of backing any specific plan.
benton.org/headlines/twitter-wants-aggressive-net-neutrality-rules | Washington Post | The Hill | Revere Digital
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GOOGLE TO FCC: DON'T REGULATE INTERCONNECTION BETWEEN EDGE PROVIDERS AND ISPS
[SOURCE: Fierce, AUTHOR: Sean Buckley]
Google has asked the Federal Communications Commission to refrain from regulating the informal interconnection agreements that Google and other providers have developed with Internet service providers like Comcast and Verizon. In a filing with the FCC, Google wrote that "regardless of what the Commission decides with respect to the service Internet access providers offer their end-user customers -- the Commission should not attempt to classify a 'service that broadband providers make available to 'edge providers.'" Google continued, "Should the Commission classify end-user broadband Internet access as a telecommunications service subject to Title II, that classification alone would enable the Commission to ensure that ISPs' interconnection practices are just and reasonable."
benton.org/headlines/google-fcc-dont-regulate-interconnection-between-edge-providers-and-isps | Fierce
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PRE-EMPTION LAWS
[SOURCE: New York Times, AUTHOR: Shaila Dewan]
Pre-empting the power of local governments is becoming a standard part of the legislative playbook in many states where Republicans who control statehouses are looking to block or overturn the actions of leaders, and even voters, in municipalities that are often more liberal. So-called pre-emption laws, passed in states across the country, have barred cities from regulating landlords, building municipal broadband systems and raising the minimum wage. Often these efforts are driven by industry, which finds it easier to wield influence in 50 capitols than in thousands of city halls, said Mark Pertschuk, the director of Grassroots Change, which opposes the pre-emption of public health measures.
benton.org/headlines/states-are-blocking-local-regulations-often-industrys-behest | New York Times
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FCC SHOULD TOPPLE NC LIMITS ON PUBLIC INTERNET NETWORKS
[SOURCE: News & Observer, AUTHOR: Editorial staff]
[Commentary] On Feb 26. the Federal Communications Commission may improve North Carolinians’ chances of getting inexpensive, high-speed Internet access without having to go through cable and telephone companies. A green light from the FCC would allow the two cities to serve customers outside their boundaries who are clamoring for Internet access that is both faster and cheaper than what they get from commercial providers. It would also help rural areas gain high-speed access to the Internet, bolster local schools and help local businesses.The FCC should knock down this state-sponsored protection for commercial providers and set Wilson (NC) and all municipalities free to give their residents high-speed Internet access at the lowest cost possible.
benton.org/headlines/fcc-should-topple-nc-limits-public-internet-networks | News & Observer
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OWNERSHIP

CABLE-INDUSTRY DOCUMENT ACCESS CASE COULD DELAY MERGERS
[SOURCE: Wall Street Journal, AUTHOR: Brent Kendall]
A federal court case about access to sensitive cable-industry documents continues to complicate US regulatory reviews of two major mergers: Comcast’s deal for Time Warner Cable and AT&T’s planned acquisition of DirecTV. A three-judge panel of a US appeals court here voiced concerns about a decision by the Federal Communications Commission to give opponents of the mergers limited access to video-programming contracts between the merging companies and TV-channel owners such as CBS, Walt Disney. and Viacom. Robert Long, a lawyer for the content companies, argued the FCC acted in a “totally unprecedented” manner in allowing representatives for third parties like Dish Network to have access to confidential business documents, including hundreds of thousands of pages of materials on pricing and negotiating strategies for dealing with distributors like Comcast. Disclosure of the material “would be highly damaging,” Mr. Long said during a nearly hourlong session before the US Court of Appeals for the District of Columbia Circuit, which has blocked the FCC from allowing access to the material while the case continues.
benton.org/headlines/able-industry-document-access-case-could-delay-mergers | Wall Street Journal
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SPECTRUM/WIRELESS

DRIVING WI-FI AHEAD: THE UPPER 5 GHZ BAN
[SOURCE: Federal Communications Commission, AUTHOR: FCC Commissioner Michael O'Rielly, FCC Commissioner Jessica Rosenworcel]
Today’s Wi-Fi spectrum bands are wildly popular. But with more and more people and devices taking advantage of this technology, these bands are getting congested. In response to the growing use of Wi-Fi, the Federal Communications Commission has taken steps to meet the growing demand for additional unlicensed spectrum. In 20014, we added 100 megahertz of spectrum for Wi-Fi in the lower 5 GHz band. The Commission is also seeking to secure some unlicensed spectrum opportunities in the 600 MHz band as part of our upcoming incentive auction. But more needs to be done -- and soon. One spectrum band that we believe needs greater attention is in the upper 5 GHz band. In light of the proximity to spectrum in other parts of the 5 GHz band that are already used for unlicensed services, this is a prime candidate to help meet the demand for Wi-Fi.
benton.org/headlines/driving-wi-fi-ahead-upper-5-ghz-ban | Federal Communications Commission
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ELECTIONS AND MEDIA

LOCAL TV'S BEST FRIEND? THE KOCHS
[SOURCE: Bloomberg, AUTHOR: Justin Fox]
The Koch brothers are planning to spend $889 million on the 2016 political campaign. It can be forgiven that owners of local television stations see the partisan zeal of the Kochs and other politically engaged billionaires as a great gift from heaven, or at least from the US Supreme Court. That’s because, despite the rise of new digital organizing techniques and the persistence of old-style phone banks and door-to-door efforts, political spending in this country mainly means one thing -- buying airtime on local TV. At Gannett, which has 46 stations, political TV advertising brought in $92.4 million in the fourth quarter, helping drive a 117 percent gain in broadcast revenue. When you consider that, in lots of countries, political airtime is something that broadcasters have to provide for free, this really is a remarkable situation. It would be lovely if local TV stations used this money to improve their news operations and do a better job of covering elections. But in general, local TV news operations don’t amount to much. The big news-gatherers have always been the newspapers.The money seems to be going instead into acquisitions and payouts to shareholders. Those shareholders, in turn, should be thanking the Koch brothers.
benton.org/headlines/local-tvs-best-friend-kochs | Bloomberg
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CIVIC ENGAGEMENT

TECH’S MOBILIZING POWER COMES AT A COST
[SOURCE: Chronicle of Philanthropy, AUTHOR: Megan O’Neil]
Technology’s power to rapidly mobilize swarms of individuals for social causes -- bypassing traditional institutions like religious organizations and established charities -- poses significant new problems for the nonprofit world, said Diana Aviv, chief executive of Independent Sector. "When their particular interest has been fulfilled or their passion has diminished, whichever one comes first, they disband and there is no social capital that’s built," Aviv said. It is one of a number of major challenges facing nonprofits, gleaned from more than a year of Independent Sector-led research, detailed by Aviv. The research is a 15-year view into the future, Aviv said, with changes coming so fast that nonprofits ignore them at their peril. Independent Sector is hitting the road to share the findings and solicit additional input from its members and others at a series of meetings across the country in the coming months. The first is scheduled for March 24 in New York City.
benton.org/headlines/techs-power-mobilize-masses-comes-cost-diana-aviv-says | Chronicle of Philanthropy
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FCC REFORM

EMBRACE THE INTERNET FOR EQUAL EMPLOYMENT OPPORTUNITY "WIDELY DISSEMINATED RULE"
[SOURCE: Federal Communications Commission, AUTHOR: FCC Commissioner Michael O'Rielly]
[Commentary] It comes as a surprise -- and a disappointment -- that we at the Federal Communications Commission don’t embrace the Internet when it comes to compliance with existing FCC rules. I previously highlighted that the Internet was the appropriate vehicle for providing broadcast contest rules, and the FCC has been updating our regulations accordingly, but the Internet may be just as important for communications companies trying to attract a diverse workforce. The FCC’s application of one of its EEO rules is based on a remarkably outdated assessment of Internet deployment and access in the United States. I am not suggesting in any way that we alter or modify our overall EEO requirements. I wholeheartedly agree that wide dissemination of information about job opportunities can be one key element to assembling a diverse applicant pool. However, we need to recognize the current marketplace realities in terms of what types of communication should qualify as “widely disseminated.”
benton.org/headlines/embrace-internet-equal-employment-opportunity-widely-disseminated-rule | Federal Communications Commission
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February 2015

Meet the Team That Makes It Possible for the Blind to Use Facebook

What Comcast's huge profits tell us about the state of the broadband industry

The Comcast merger with Time Warner isn't a sure thing

Analysis

So They’re Voting On Network Neutrality, But What Happens Next?

February 24, 2015 (GOP Seeks Net Neutrality Delay)

States Are Blocking Local Regulations, Often at Industry’s Behest

FCC chief cites wireless industry as precedent in network neutrality proposal

Reality check on network neutrality rhetoric

Applying Title II without embarrassment