John Bergmayer

The Benton Institute for Broadband & Society, Public Knowledge, Free Press, the United Church of Christ, OC, Inc. Leadership Conference, USC Gould School of Law and Office of the County Counsel, and the County of Santa Clara spoke with Federal Communications Commission General Counsel staff on Oct. 5, 2023, regarding net neutrality.

Rarely does Congress speak as definitively and clearly as it did with Section 1754: ordering the Federal Communications Commission, within 2 years to enact regulations to “eliminate” existing digital discrimination on the basis of “income level, race, ethnicity, color, religion, or national origin” and to prevent it from recurring in the future. The FCC should interpret this instruction for what it is: a rebuke of the last 25 years of failed policies and “light touch” regulation under the apparent delusion that for the first time in 90 years “the market” would bring universal service to all

Congress enacted Section 230 of the Communications Decency Act to permit interactive computer services to exercise editorial discretion when publishing third-party content, without facing liability. This case seeks to hold YouTube liable for publishing objectionable third-party content. Section 230 does not allow this. Petitioners try to work around this clear statutory prohibition by characterizing their theory of liability in different terms.

Public Knowledge submitted comments to the Federal Communications Commission on May 16, in response to the FCC's Notice of Inquiry regarding digital discrimination rules in the Infrastructure Investment and Jobs Act. "Digital discrimination is not just unjust towards individuals, but can hold back entire communities and prevent the nation from living up to its potential," states Public Knowledge in its filing. "Thankfully, the Commission now has not merely the legal authority, but an affirmative obligation, to end digital discrimination.

The paper stems from a platform competition research project led by Public Knowledge and supported by Omidyar Network. The paper explores the challenge of balancing the significant gatekeeper control that dominant platforms like Apple and Google have over both their operating systems and app stores, with the benefits that app stores create for both developers and users.

The court in Mozilla required the Federal Communications Commission to address how its Restoring Internet Freedom Order, which repealed the agency’s net neutrality rules and removed FCC jurisdiction over broadband, impacted public safety, pole attachments, and the Lifeline program. Instead of opening a new rulemaking proceeding, the FCC issued a Public Notice that fails to explain how the agency ultimately intends to proceed on this matter.

The broad language of Section 230 should not be interpreted in a way that gives platforms that host third-party content a special exemption from laws that apply to businesses generally, or creates an exemption from the kinds of health, safety, public interest, and economic regulation that governments at every level—from federal agencies to municipalities–engage in. To be clear at the outset, this does not mean that any and all regulations a government may want to enforce are good ideas. Some of them might be. Others might be terrible.

The gatekeeper and competition issues caused by app stores aren’t going away. At the same time, solutions to them should seek to maintain the convenience, security, and privacy benefits of software that is at least somewhat screened, since we’ve learned from experience that allowing any app, from anywhere, to have unfettered access to a user’s computer or other device is not good, either. No one wants smartphones to become like the virus and “toolbar”-infested Windows 98 family computers of the past.

On Feb 1, Petitioners (including Public Knowledge) finally got to make their case in court that the Federal Communications Commission’s reckless abdication of responsibility over broadband was illegal. To highlight some of them:

The financial challenges YouTube TV and other “virtual cable” providers face is a good illustration of some points we’ve been making at Public Knowledge for a while. "These streaming services have yet to figure out how to make money. In fact, the more people they sign up, the more money they lose. That’s because the services are paying more for programming than what they’re charging consumers.” Why is this? Basically, the incentives of large content providers and big cable make offering viewers more choice very difficult.