Brian Fung

Is the Federal Communications Commission the wrong agency to handle matters of net neutrality and Internet openness? That's what some in Congress and elsewhere are suggesting. Instead, they say, ensuring that Internet providers don't abuse their network operator roles should be a matter for the Federal Trade Commission and antitrust law.

In a hearing, members of the House Judiciary Committee grilled current and former federal officials over the possibility of letting the FTC take on the punishing of broadband companies that have harmed consumers.

"Do you believe the FTC would be effective at protecting the competitive interest?" asked Rep Jason Smith (R-MO). Former Republican FCC Commissioner Robert McDowell and current FTC commissioner Joshua Wright told the committee that using the FTC to regulate companies after the fact would be enough and that the FCC does not need to regulate Internet service providers (ISPs).

So far, there's been no evidence of a market failure that would require the FCC's preemptive regulation, they said. But network neutrality advocate Tim Wu testified in the hearing that looking at Internet policy solely through the lens of antitrust law would ignore the non-economic harms that Internet providers could wreak on the Internet, such as suppressing speech and limiting diversity.

[Commentary] The Supreme Court's ruling on software patents dealt a blow to companies that want to patent abstract ideas -- a no-no under intellectual property law.

The unanimous opinion effectively raises the bar for what computer programs can be patented, helping to limit the number of "bad" patents entering the system and the number of lawsuits that can be filed by patent trolls.

But intellectual property experts are a little put out by the decision in Alice Corp. v. CLS Bank. Here's why: While the court struck down what was universally said to be a bad patent, it didn't do much to say what kinds of software should be patentable. In other words, the court decided the most basic conflict in the case, but more or less declined to offer guidance for other, future cases.

Comcast's bid to win over regulators for its proposed merger with Time Warner Cable has mostly focused on Washington, where the cable company has testified before Congress, met with officials and given millions of dollars in political donations. But now, Comcast is devoting its attention to regulators a little farther north of the nation's capital. And wooing these folks will be no less important to the merger's outcome.

Since recent changes in the state's cable franchise laws, New York has vowed to take a close look at the Comcast-Time Warner Cable merger. In May, Gov Andrew Cuomo (D-NY) pledged a "hands-on review" of the proposal, and afterwards, the state public service commission (PSC) will hold the last of three hearings to consider the acquisition. If Comcast fails to convince state regulators that buying up Time Warner Cable (TWC) would benefit consumers, the PSC has the power to block the merger from happening within the state, says Brad Ramsay, the top lawyer for the National Association of Regulatory Utility Commissioners.

"They can't stop the entire merger, but they can stop the part that involves facilities in the state of New York," Ramsay said in an interview. "Would that require [Comcast] to go back to the drawing board? Well, if it's central to the synergies in this merger, sure."

How important is it that Comcast get New York's blessing? Look at it this way: Comcast has a fraction of the customers in New York that TWC has -- 23,000 versus more than 2.5 million. Considering that the entire merger nationwide would give Comcast control over 30 million subscribers, New Yorkers alone would account for nearly 10 percent of merger company's total customer base.

[Commentary] With June ticking away, the Supreme Court still has a handful of tech-related cases to decide. One is a case about software patents that could change the way businesses protect their intellectual property.

Another pair of cases asks whether police can legally search the contents of your cell phone without a warrant.

But the last such case of the summer promises to be far more important to our day-to-day lives. It could forever change the future of television.

At the center of this lawsuit is a little company called Aereo. New York-based Aereo is controversial because the company takes over-the-air broadcast programming, like shows on PBS, ABC or NBC, and streams them over the Internet to its customers. It does this without paying the networks that produce the content.

Should Aereo have to pay these guys for transmitting their stuff? That's the question facing the Supreme Court. A decision could come very soon.

It could break probably one of four ways. If Aereo wins, it potentially upends the entire TV business. Suddenly, broadcasters would have to worry about a flood of customers starting to watch live TV over the Internet. As we've seen in the publishing industry, the minute content moves online, advertising rates start to fall. And as TV networks' ad revenue craters, they wouldn't be able to make up the shortfall by charging Aereo retransmission fees. That's a double whammy.

Finally, a ruling for Aereo could prompt calls by the content industry to revise the Copyright Act.

[Commentary] Advocates of an open Internet have for weeks been urging the Federal Communications Commission to re-label broadband as a utility -- a move toward "strong" network neutrality that would give the FCC much greater authority to ban controversial fast lanes on the Internet.

Reclassification, as the proposal is called, would allow the FCC to apply the same set of strict rules to ISPs that it currently uses to govern telephone companies. (Congressional Democrats, meanwhile, have just introduced legislation to ban fast lanes outright.)

Broadband providers have long opposed the idea of greater regulation, but now they're stepping up their rhetoric against it, arguing that reclassification won't do what net neutrality advocates are hoping for -- and might even threaten Internet companies such as Google and Netflix. In a nutshell, they say, if the FCC can regulate how the Internet gets delivered to you and me, what parts of the Internet can't the FCC regulate?

AT&T is among the most vocal critics of reclassification. Company executive Jim Cicconi argued that reclassifying Internet providers -- placing them under Title II of the Communications Act instead of the more lenient Title I -- wouldn't do anything to prevent the rise of Internet fast lanes, because embedded in Title II is a loophole that lets ISPs manipulate some traffic so long as it's not "unjust" or "unreasonable."

But the bigger problem, AT&T says, is that Title II would create all kinds of burdensome new requirements on content companies -- the Googles and Netflixes of the world. For example, said Cicconi, Internet applications might be newly forced to pay into a "universal service fund" that the FCC keeps to connect poor and rural areas to phone service.

Cicconi is asking you to make a number of logical leaps. But it's not clear that you should.

Earlier in June, the American Civil Liberties Union sued a local police department over the warrantless use of cellphone tracking devices, demanding that officials in Sarasota (FL), hand over court documents concerning the practice. The suit has now been thrown out.

State Circuit Court Judge Charles Williams found that he didn't have the jurisdiction to hear the case. That's because even though the case concerns a local police department, it was working on behalf of the US Marshals Service at the time that it deployed the stingray.

Stingrays are used to collect information on nearby cellphones by setting up a fake cell tower; when wireless phones try to connect with the stingray, those contacts get logged by law enforcement. The ACLU claims this is a violation of privacy.

The group said it tried to get Sarasota police to produce the application it filed to a judge for permission to use the stingray, as well as the judge's order. But then, the ACLU said, the US Marshals whisked the documents away to a federal facility, beyond the reach of Florida's public records law. Now the ACLU must either file a federal FOIA request to the US Marshals or continue fighting the court case.

Michael Barfield, the vice president of the ACLU of Florida, said privacy advocates have a chance if they can prove to the court that the records in question were state public records, not federal records. A written agreement between the US Marshals and another local police department on the use of stingrays seems to agree with that interpretation, he said.

Democratic lawmakers will unveil a piece of bicameral legislation that would force the Federal Communications Commission to ban fast lanes on the Internet.

The proposal, put forward by Senate Judiciary Committee chair Patrick Leahy (D-VT) and Rep Doris Matsui (D-CA), requires the FCC to use whatever authority it sees fit to make sure that Internet providers don't speed up certain types of content (like Netflix videos) at the expense of others (like e-mail). It wouldn't give the commission new powers, but the bill -- known as the Online Competition and Consumer Choice Act -- would give the FCC crucial political cover to prohibit what consumer advocates say would harm startup companies and Internet services by requiring them to pay extra fees to ISPs.

"Americans are speaking loud and clear," said Sen Leahy, who is holding a hearing on net neutrality in Vermont this summer. "They want an Internet that is a platform for free expression and innovation, where the best ideas and services can reach consumers based on merit rather than based on a financial relationship with a broadband provider."

Sen Leahy and Rep Matsui's proposed ban on fast lanes would apply only to the connections between consumers and their ISPs -- the part of the Internet governed by the FCC's proposed net neutrality rules. The FCC's current proposal tacitly allows for the creation of a tiered Internet for content companies, though the commission has asked the public whether it should ban the practice as "commercially unreasonable."

"A free and open Internet is essential for consumers," said Rep Matsui. "Our country cannot afford ‘pay-for-play’ schemes that divide our Internet into tiers based on who has the deepest pockets."

A Q&A with Tim Wu, law professor at Columbia University, who is running for New York lieutenant governor.

On running for office, Wu said: “I believe in open democracy as much as I believe in an open Internet."

Regarding mergers in the media industry, Wu stressed the importance of state cooperation with federal regulators: “The state can block a merger. They can't block two companies merging in Texas, but Comcast wants to buy Time Warner Cable, which happens to have substantial business operations in New York. It is a New York State merger.”

House Majority Leader Eric Cantor's stunning defeat in the Virginia primaries had pundits and policy wonks signing the death certificate for immigration reform. But Cantor's loss -- and David Brat's win -- promises to add even more momentum to a different high-profile issue before Congress: National Security Agency surveillance.

Brat, an economics professor at Randolph-Macon College, has wildly different views on the NSA from his erstwhile opponent. Where Cantor voted against a landmark proposal to rein in the NSA -- a measure that wound up getting defeated but by a much narrower margin than expected -- Brat has argued that the government has abused its powers and "spun out of control." He's called for an end to the NSA's bulk collection of phone records and greater protections for e-mail.

Brat deftly navigates the political waters surrounding the NSA where other Republicans have made confusingly contradictory statements. Brat believes former NSA contractor Edward Snowden should stand trial for breaking the law -- but also appreciates the value of what Snowden did, which for a majority of Americans puts him on the right side of the issue.

Netflix says it will stop pinning the blame for laggy streaming speeds on Verizon and other Internet providers, potentially putting an end to a weeklong dispute between broadband companies and the streaming video service.

The error messages, which began popping up for some users as part of a trial in May, told subscribers that their stuttering connections were the result of congestion on their ISP networks. The claim led Verizon to fire back with a cease-and-desist letter demanding that the notices stop. Netflix will suspend the messages on June 16, according to a company blog post.

But spokesman Joris Evers denied that the decision had anything specific to do with Verizon's complaint. "We do tests of different lengths," said Evers. "That doesn’t mean there won’t be another one, and it doesn't mean there won’t be multiple ones that run in concert after this."

Netflix will examine the results of the current test to see whether users called customer service more or less often and whether they watched more or less video, among other things.