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June 2016

A huge win on net neutrality could embolden the FCC to tighten regulations in other areas

Net neutrality advocates are hoping that a big win in court will prompt the Federal Communications Commission to take bold action in other areas, including privacy. "By affirming the FCC’s rules and their use of Title II, the court set the stage for strong privacy protections,” said Fight for the Future’s Holmes Wilson. In March, FCC Chairman Tom Wheeler surprised many with plans to require Internet service providers to get consent from customers before using many types of data. The agency is now sifting through an initial wave of comments, with a deadline looming later in June for responses to those comments.

Another area where the FCC may take action is around so-called zero rating, where carriers choose to exempt one service or a class of service from counting against a user’s data cap. AT&T and Verizon both have sponsored data programs where the provider of content or a third party pays for data traffic, while T-Mobile has a pair of programs that allow certain music or video streams to be delivered without counting against a user’s data cap. “Comcast, AT&T, Verizon and T-Mobile are all violating the spirit of the net neutrality rules with zero-rating plans that privilege some sites over others,” Wilson said. "Now that the FCC clearly has the power to shut down these shady arrangements, the question is: Will they?" Commission staff have already met with several companies, and apparently an informal review is continuing.

Net neutrality and the changing of the guard on the DC Circuit

[Commentary] June 14’s decision by the US Appeals Court for the DC Circuit focused not on network neutrality policy, but rather on the Federal Communications Commission’s statutory authority and administrative process. The court’s opinion is chock-full of staple admin law doctrines, including the logical outgrowth test (whether the agency gave sufficient notice of its final rule to allow for meaningful comment), the standard for an agency to depart from a prior policy, arbitrary and capricious review of agency decisionmaking, the “hard look” doctrine (whether the agency adequately supported its position and responded to critical comments), and, naturally, statutory interpretation under Chevron.

The two opinions may evince a changing of the guard at the DC Circuit. Historically, the court has been unafraid to perform the type of close, critical review of the record that Judge Williams undertook — and the Federal Communications Commission in particular has long been the DC Circuit’s whipping boy in such cases, suffering a higher reversal rate than most agencies. The majority opinion, co-authored by Democratic appointees over the dissent of a senior Reagan nominee, suggests that the court may finally be losing its appetite for more intrusive judicial review.

[Daniel Lyons is a Boston College law professor]

A victory for net neutrality: Why the Internet is an essential public utility

[Commentary] The verdict is in: The Internet is not a luxury. Broadband is an essential public utility, and must be equally accessible to everyone.Yesterday, the US Court of Appeals for the District of Columbia Circuit ruled decisively to uphold the Federal Communications Commission’s net neutrality rules, which require Internet service providers to treat all web traffic equally—preventing them from blocking or slowing some traffic and offering preferential treatment to sites that pay for faster service.Net neutrality is essential because it maintains the Internet as an open platform for free expression, political engagement, education, and economic opportunity.

As The New York Times explained in an op-ed, “The decision helps to ensure a level playing field for smaller- and start-up Internet businesses because it precludes larger, established companies like Amazon and Netflix from simply paying broadband companies for faster delivery. Equally important, it ensures reliable service and choice for consumers by acknowledging that the Internet, now a requisite of modern life, is akin to a utility, subject to regulation in the public interest.”

Municipal fiber network will let customers switch ISPs in seconds

Most cities and towns that build their own broadband networks do so to solve a single problem: that residents and businesses aren't being adequately served by private cable and telecommunication companies. But there's more than one way to create a network and offer service, and the city of Ammon (ID) is deploying a model that's worth examining.

Ammon has built an open access network that lets multiple private Internet service providers offer service to customers over city-owned fiber. The wholesale model in itself isn't unprecedented, but Ammon has also built a system in which residents will be able to sign up for an ISP—or switch ISPs if they are dissatisfied—almost instantly, just by visiting a city-operated website and without changing any equipment. Ammon has completed a pilot project involving 12 homes and is getting ready for construction to another 200 homes. Eventually, the city wants to wire up all of its 4,500 homes and apartment buildings, city Technology Director Bruce Patterson said. Ammon has already deployed fiber to businesses in the city, and it did so without raising everybody's taxes.

After Comcast complains, Verizon is told to alter deceptive “#1” speed ads

Verizon ads claiming that FiOS fiber service "is rated #1 in Internet speed" are misleading and should be changed, the National Advertising Review Board (NARB) said. Verizon doesn't actually offer the fastest speeds, but the company justifies the claim based on PC Magazine’s Readers’ Choice Survey. NARB's decision—which came after a complaint filed by Comcast—noted that ranking "was not based on a comparison of objective Internet speed performance and/or a head-to-head comparison of different Internet service providers." Instead, it was based on customers' perceptions. Verizon ads do note that the #1 claim is based on "customer satisfaction studies," but the board ruled that Verizon's ads made it seem as if the company actually offers the industry's fastest speeds. "NARB, in its decision, noted that one of the challenged advertisements was 'fast-moving, with objective speed claims made in parts of the advertisement and a visual that prominently links the #1 rating to Internet speed rather than customer satisfaction. In this context, reasonable consumers may very well take away a message that Verizon’s #1 rating is based on a comparison of objective Internet speed performance and/or a head-to-head comparison of different Internet service providers,'" the review board said.

The board also recommended that Verizon modify its claim of superior picture quality "to more clearly communicate that the higher rating with respect to HD picture quality was a customer satisfaction rating based on consumers’ rating of their own Internet service providers."

Cable industry offers set-top box compromise to avoid stricter regulation

Cable companies still oppose the Federal Communications Commission's attempt to open up the set-top box market but seem to have resigned themselves to accepting some form of regulation. Industry representatives met with FCC commissioners and staff to say they are willing to comply with a requirement to deploy applications for third-party set-top boxes using open standards. The apps would have to include all linear and on-demand TV content, but apparently they would not have to allow recording. This isn't quite what the FCC says it wants. The commission proposed rules that would force pay-TV providers to make video programming—and the right to record video—available to the makers of third-party devices and software.

Under the FCC's model, makers of third-party software and equipment could create their own user interfaces through which cable TV subscribers could access their programming. The solution would be similar to CableCard, but it wouldn't require a physical card. Throughout the debate, cable companies have favored an "apps" model in which pay-TV operators could choose whether to build applications that bring their programming to third-party devices. Cable companies still aren't giving up on the apps approach, but now they say they would agree to rules that make it mandatory for large operators to build apps providing access to all the video customers subscribe to on a wide range of devices.

6 in 10 of you will share this link without reading it, a new, depressing study says

On June 4, the satirical news site the Science Post published a block of “lorem ipsum” text under a frightening headline: “Study: 70% of Facebook users only read the headline of science stories before commenting.” Nearly 46,000 people shared the post, some of them quite earnestly — an inadvertent example, perhaps, of life imitating comedy. Now, as if it needed further proof, the satirical headline’s been validated once again: According to a new study by computer scientists at Columbia University and the French National Institute, 59 percent of links shared on social media have never actually been clicked: In other words, most people appear to retweet news without ever reading it. Worse, the study finds that these sort of blind peer-to-peer shares are really important in determining what news gets circulated and what just fades off the public radar. So your thoughtless retweets, and those of your friends, are actually shaping our shared political and cultural agendas.

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