Lauren Frayer

[Commentary] May 1, the DC Circuit denied the petition for rehearing en banc challenging the soon-to-be replaced network neutrality rules. Judges Brown and Kavanaugh dissented from the denial of rehearing, and each wrote to explain why. Brown and Kavanaugh both argued that Chevron deference doesn’t apply, but it’s Kavanaugh’s second argument that I want to focus on: that net neutrality regulations implicate the First Amendment.

Kavanaugh relies on Turner Broadcasting System, Inc. v. FCC. The key was that cable programmers and operators “engage in and transmit speech” — mere transmission wasn’t enough. What cable operators speakers was their own programming and their practice of “exercising editorial discretion,” entailing their “‘see[king] to communicate messages.'” Kavanaugh sees Internet service providers as analogous to cable operators.

[Stuart Benjamin is the Douglas B. Maggs Professor of Law, Associate Dean for Research, and co-director of the Center for Innovation Policy at Duke Law School.]

A Q&A with Dane Jasper, co-founder of Sonic, a Santa-Rosa (CA) based Internet service provider.

Asked, "Why do you support net neutrality and the FCC’s just discarded privacy rules?"

Jasper said, "I think it’s good business to take care of your customers. Your customers will be loyal to you when you take good care of them. That might be good pricing. That might be good customer service. Or it’s that you don’t sell them out to advertisers or that you don’t engage in practices that would violate their privacy for whatever small commercial gain that you might have. Also, I think the ecosystem of the internet is something that needs to be preserved. As I’ve watched the internet blossom from the early start of my career more than 20 years ago, I am stunned by the wonderful ideas and amazing services that people have put together. And they’re the reason that every day, consumers are signing up for Sonic. It’s important to preserve neutrality so we can continue to see great new ideas come to fore, even if those ideas use a ton of bandwidth, or even if those ideas require really low latency."

Q FCC Chairman Ajit Pai has criticized the net neutrality and privacy rules as being examples of “heavy-handed regulation” and regulatory “overreach.” He’s argued that cutting such regulations will increase competition, lower prices and get higher speeds to broadband consumers, because it will encourage innovation on the network side and will free things up so that you can get investment on the network side. What do you say to those arguments?

A One of the things Pai has said is if you regulate broadband like it’s a monopoly, you end up with a monopoly. That’s not entirely unfair. If there is a vibrant, competitive environment with many, many choices, then I think that bad behaviors will be held in check, and innovation in business model and infrastructure and in the network won’t be a bad thing.

In today’s environment, though, where consumers have, in many cases, only one choice at greater than 25 megabits, what we see is rent-seeking behaviors and abuses of the consumer, whether it’s bad customer service or expensive pricing or network neutrality concerns.

Q Has Sonic’s ability to innovate been affected by the FCC’s decision under Obama to re-regulate broadband?

A No. And we certainly supported former FCC Chairman Tom Wheeler in his efforts to protect network neutrality. And that didn’t hamper our investment or our concerns about our future ability to monetize the networks that we build.

Any agreement to share spectrum bands will require reliable predictions of how that spectrum will perform in the real world. The Institute for Telecommunication Sciences (ITS) recently took a major step toward a more collaborative approach to research in this area by publicly releasing an advanced software model for radio wave propagation in urban environments.

This software can be used by consumers, engineers, scientists and others to explore the behavior of radio waves interacting with buildings, trees, and other environmental features. ITS released the software to the public by publishing source code (link is external) on GitHub, an online platform for open-source code. Posting to GitHub will allow researchers to use and modify the code as they wish, as well as collaborate with other researchers and avoid duplicating efforts. ITS hopes that making its source code freely available can advance development of widely accepted propagation models.

An interview with Francine Berman, a computer-science professor at Rensselaer Polytechnic Institute and a longtime expert on computer infrastructure.

In October, when malware called Mirai took over poorly secured webcams and DVRs, and used them to disrupt internet access across the United States, I wondered who was responsible. Not who actually coded the malware, or who unleashed it on an essential piece of the internet’s infrastructure—instead, I wanted to know if anybody could be held legally responsible. Could the unsecure devices’ manufacturers be liable for the damage their products? Right now, in this early stage of connected devices’ slow invasion into our daily lives, there’s no clear answer to that question. That’s because there’s no real legal framework that would hold manufacturers responsible for critical failures that harm others. As is often the case, the technology has developed far faster than policies and regulations.

A federal appeals court has said it will not rehear a landmark case looking to overturn the government’s rules on network neutrality. May 1's decision by the US Court of Appeals for the DC Circuit allows its previous ruling upholding the regulations to stand — and paves the way for opponents of the rules to appeal to the Supreme Court.

“I'm super excited,” said Daniel Berninger, one of the critics who in 2015 sued the Federal Communications Commission, which wrote the rules. “When we get to the Supreme Court, we want to be saying [to a largely conservative bench] this is a severe case of government overreach.” If the Supreme Court agrees to take the case, it could hear oral arguments spring 2018, said Berninger, who intends to file his appeal within 90 days.

Federal Communications Commission Chairman Ajit Pai issued the following statement on the decision by the US Court of Appeals for the District of
Columbia Circuit not to rehear the Title II case en banc:

“In light of the fact that the Commission on May 18 will begin the process of repealing the FCC’s Title II regulations, it is not surprising, as Judges Srinivasan and Tatel pointed out, that the DC Circuit would decide not to grant the petitions for rehearing en banc. Their opinion is important going forward, however, because it makes clear that the FCC has the authority to classify broadband Internet access service as an information service, as I have proposed to do. I also agree with many of the points made by Judges Brown and Kavanaugh in their compelling opinions explaining why the Commission’s Title II Order was unlawful."

Washington was quick to weigh in on the latest news in the multi-front debate/battle over Open Internet rules—that was the US Court of Appeals for the DC Circuit decision not to review a three-judge panel of that court's decision that the Federal Communications Commission was within its authority to reclassify Internet service providers as common carriers after years of treating them as information services rather than telecommunications.

“The D.C. Circuit has once again confirmed that the FCC's Open Internet rules are lawful and supported by the evidence," said Public Knowledge senior counsel John Bergmayer. "Now, the primary threat to these important consumer protections is FCC Chairman Pai's determination to roll them back, and to hand more power to monopolistic internet access providers.”

[Commentary] If Federal Communications Commission Chairman Ajit Pai’s network neutrality proposal was shocking, his justifications for it ranged from the misleading to the flat-out false. Chairman Pai argues, for example, that Tom Wheeler’s net neutrality rules represented a radical departure for the FCC, moving it from a “light-touch” regulatory regime that had allowed the internet to thrive over the last 20 years to an outdated and “heavy-handed” one that’s put the internet under government control. There’s so much wrong with this argument that’s hard to know where to start.

But that was just one of Pai’s misleading justifications. Relying on industry-backed studies, he also argued that investment in broadband has declined over the last two years thanks to the net neutrality rules. But according to a study authored by Free Press, in the two-year period following the passage of the new rules, investment by the broadband providers that are public companies is actually up compared with the two-year period immediately before they were passed.

A Q&A with Commissioner Terrell McSweeny of the Federal Trade Commission.

Facebook has tapped a former New York Times executive to lead the company’s news products team. In the newly created position, Alex Hardiman, who has been leading the social media site’s pages team since leaving the Times in 2016, will be in charge of building tools for news outlets. “As a part of the Facebook Journalism Project, my colleagues and I will work collaboratively with news organizations across the spectrum to build new storytelling formats, local news communities, monetization options, and more,” she said. “We will spend time building better products and tools for journalists, working hand-in-hand with Campbell Brown and her team to strengthen the relationships and value exchange between Facebook and news providers. We will also partner with teams in Facebook to continue curbing the spread of false news.”