Tuesday, November 6, 2018
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Jonathan Sallet on The Goals of Antitrust
Supreme Court rejects industry challenge of 2015 net neutrality rules
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The US Supreme Court has declined to hear the broadband industry's challenge of the Federal Communications Commission's 2015 order to impose net neutrality rules and strictly regulate broadband. Of course, the FCC already reversed these rules in 2017, but AT&T and the lobby groups for broadband internet access service providers were still trying to overturn lower court decisions that upheld the 2015 FCC order. The Trump administration supported the industry's case, asking the US Supreme Court to vacate the Obama-era ruling. A win for the broadband industry could have prevented future FCC's from imposing a similarly strict set of rules. But the Supreme Court denied petitions filed by AT&T and broadband lobby groups NCTA (large cable companies), CTIA (wireless carriers), USTelecom (tradition telephone companies), and the American Cable Association (small cable companies). Four of nine justices had to agree to hear a case, but only three (Thomas, Alito, and Gorsuch) voted to grant the petitions. Chief Justice John Roberts and Justice Brett Kavanaugh recused themselves from the case. Justice Roberts owned stock in AT&T-owned Time Warner, while Justice Kavanaugh took part in the case when he was a judge on the DC Circuit appeals court.
Though network neutrality started off more than a decade ago as an insight into how to make networks work most efficiently, it has taken on much larger social and political dimensions lately. The issue has emerged as an anti-monopoly rallying point and even a focus for "resistance" to the Trump Administration. "Any time the cable companies and the Trump administration are on one side, it looks good for companies to be on the other side," Boston Law School professor Daniel Lyons said. Once President Donald Trump took office, net neutrality became one of his first targets as part of broader government deregulation. The Federal Communications Commission Chairman he appointed, Ajit Pai, made rollback a top priority. And thus net neutrality became increasingly political.
Equity drives San Jose’s (CA) approach to bringing new technologies to the city, and the deployment of municipal broadband and municipal fiber lines are no exception. Located in Silicon Valley, San Jose city officials are acutely aware of the technology boom happening on their doorstep and are eager to welcome these advances, provided they can do so in a way that speaks to the needs of all residents. With only three percent of the city connected to high quality fiber lines, the city needed to improve overall access to high speed internet as well as address the digital divide for 95,000 residents without access. After commissioning a study of the city’s broadband approach as well as conducting surveys with low-income populations, San Jose officials set about working with the private sector on an arrangement that facilitates deployment, speaks to the city’s equity goals and meets provider expectations. They settled on a tiered pricing structure where providers pay $750-$2500, depending on whether they will cover the entire city or pick and choose limited deployments. Larger deployments essentially receive a bulk-discounted rate. This revenue then feeds into two important city goals: internal capacity building and digital equity.
Federal Communications Commission Chairman Ajit Pai demanded that the phone industry adopt a robust call authentication system to combat illegal caller ID spoofing and launch that system no later than 2019. Such a system is critical to protecting Americans from scam robocalls. A robust call authentication framework would erode the ability of callers to illegally spoof their Caller ID, which scam artists use to trick Americans into answering their phones when they shouldn’t. With a robust framework in place, consumers and law enforcement alike could more readily identify the source of illegal robocalls and reduce their impact. And the Commission is considering additional actions—such as authorizing voice providers to block the delivery of unsigned or improperly signed calls to consumers—that would stem the flow of illegally spoofed robocalls to American consumer.
The power of communication and the exchange of ideas were starkly brought home recently as news of bombs being delivered to Americans’ homes and businesses, and the murder of worshipers in Pittsburgh dominated headlines everywhere. President Donald Trump and some of his Republican allies appear to be actively engaged in a feedback loop with extremists who participate in the darkest online forums. By empowering the views found there, they condone a widening of the boundaries of acceptable speech and turn a blind eye to bigotry, xenophobia, and hate. For each of us, there’s a responsibility to hold our leaders accountable. Are they dampening the flames or fanning them? Are they using extinguishers – or matches? If we want to return to the mutual good faith and collaborative spirit that characterize a healthy democracy, we need leaders who will use their positions of power and influence to tone down the rancor and smother the kind of speech that incited the extremism and violence that led to the tragedies of Charleston and Pittsburgh.
Tim Berners-Lee has launched a global campaign to save the web from the destructive effects of abuse and discrimination, political manipulation, and other threats that plague the online world. The inventor of the web called on governments, companies and individuals to back a new “Contract for the Web” that aims to protect people’s rights and freedoms on the internet. The contract outlines central principles that will be built into a full contract and published in May 2019, when half of the world’s population will be able to get online. More than 50 organisations have already signed the contract, which is published by Berners-Lee’s World Wide Web Foundation alongside a report that calls for urgent action. Under the principles laid out in the document, which Berners-Lee calls a “Magna Carta for the web”, governments must ensure that its citizens have access to all of the internet, all of the time, and that their privacy is respected so they can be online “freely, safely and without fear.” Meanwhile, companies commit to making the internet affordable and accessible to all; respecting consumer privacy and personal data; and developing technologies that ensure the web is “a public good that puts people first”.
Infowars is gone from Facebook after a high-profile showdown over the summer between Silicon Valley and conspiracy theorist Alex Jones. But another Facebook page he controls, NewsWars, has taken its place — and Jones’s many fans have followed. In the three months since Facebook removed four of Jones’s pages over allegations of hate speech, his NewsWars page has remained intact and surged in posts and page views. Videos hosted by the NewsWars Facebook page have totaled 3.9 million views since Aug, nearly reaching the monthly viewership of Jones’s videos on Infowars and other pages he controlled before they were shut down. These calculations — made by Columbia University social media researcher Jonathan Albright using CrowdTangle, an analytics tool from Facebook — underscore Jones’s agility in navigating his battle with what he calls “Big Tech.” A Facebook spokesman noted the company said in an Aug blog post it was taking down some but not all of Jones’s content. The post also said Facebook would assess allegations of misconduct against pages individually and would not necessarily ban the people maintaining pages even if the pages themselves were removed.
For Louis Brandeis, antitrust would serve both social and economic goals. He saw complete harmony in critiquing the economic justification for corporate power, on terms familiar to modern antitrust analysis, while pressing the larger case for democracy and industrial liberty. Legislatures can, and should, take an expansive view. As a starting point, Brandeis believed that values other than economics would be served by the protection of competition through antitrust, chief among them the preservation of democracy and individual initiative. This was not a subtle view. He went so far as to say that “we cannot maintain democratic conditions in America if we allow organizations to arise in our midst with the power of the [U.S.] Steel Corporation.” For Brandeis, democracy was more than just the ability to cast a vote; it rested on the ability of Americans to participate fully in the industrialized economy. When he described the harm from monopoly, Brandeis bemoaned the passage of the day when “nearly every American boy could look forward to becoming independent as a farmer or mechanic, in business or in professional life.” Brandeis saw this “industrial liberty” as integral to political liberty. He held a Jeffersonian view of the world, believing “that in a democratic society the existence of large centers of private power is dangerous to the continuing vitality of a free people.” This was a view shaped by his times–the populist opposition to the power of the trusts in the late 19th and early 20th century and then the arrival of the Great Depression, when he warned of the “gross inequality in the distribution of wealth and income which giant corporations have fostered.”
President Donald Trump said his administration is looking seriously at antitrust investigations of Google, Facebook and Amazon. In the next breath, he argued they are great companies that he wants to help. "I leave it to others, but I do have a lot of people talking about monopoly when they mention those three in particular." "We are looking at [antitrust] very seriously ... Look, that doesn't mean we're doing it, but we're certainly looking and I think most people surmise that, I would imagine," he said.
He also said, "The European Union takes a lot of money out of our companies and I actually went to my people and said 'you know, if they're gonna do it we should be the one doing it, not them.' These are our companies...and they're great companies." He said, "I'm not looking to hurt these companies, I'm looking to help them. As far as antitrust is concerned, we'll have to take a look at that but I want them to do well. I want Amazon to do well. I want Google to do well. I want Facebook — I want all of 'em to do [well] — these are great companies."
An Oct 23 interview with Sen Mark Warner (D-VA).
In the summer of 2018, Sen Warner put out the most comprehensive plan yet for how Congress might regulate Big Tech. His white paper laid out 20 different suggestions, ranging from labeling bots to implementing broader rules like those in the European Union’s General Data Protection Regulation (GDPR). When asked, "In your white paper, something you didn’t bring up was breaking up Facebook. Why didn’t you include that?" Sen Warner said, "I’ve thought about that. I think in many ways, these companies have as much power, if not more power, than the largest enterprises in the beginning of the 20th century, when you have the oil companies and other monopolies...I see breakup as more of a last resort. Also, we could look at companies more on a domestic scene...In a world-based economy, you can’t look at these only on a national basis. My fear is that the Chinese companies, which are frankly on a growth rate even faster than Facebook, Google, and Twitter’s growth, don’t have any of the constraints of the other companies." Sen Warner also indicated he was against nationalizing large tech companies.
Elections
Top Facebook, Apple and Google executives have donated little in the 2018 midterms, two years after clashing with President Trump
The top executives at Apple, Facebook, Google and Microsoft have stayed on the political sidelines during the 2018 midterm elections, opting not to donate to federal candidates who might advance Silicon Valley’s political agenda — or battle back President Donald Trump. Two years ago, these tech leaders emerged as some of President Trump’s biggest critics, challenging his administration publicly on issues including immigration, climate change and gender equality. Personally, though, they’ve declined since then to write checks to congressional office-seekers who might serve as a bulwark against the White House, federal records show. Apple CEO Tim Cook so far has backed one Democratic lawmaker in California, after spending nearly $500,000 — almost entirely on Democrats, and a few Republicans — during the 2016 presidential race, according to data published by the Federal Election Commission. Mark Zuckerberg, chief executive of Facebook, and Larry Page and Sergey Brin, co-founders of Google-parent Alphabet, so far haven’t written any checks to federal candidates, the records show.
As Tennessee voters head to the polls, Senate candidate Phil Bredesen (D) is taking aim at Rep Marsha Blackburn’s legacy on broadband. In a recent campaign ad, former-Gov Bredesen calls out the House Telecommunications Subcommittee chair for having “voted against $600 million in broadband initiatives.” At issue: Blackburn’s March 2018 vote against the sprawling omnibus government funding bill that contained a series of committee-negotiated tech legislation central to Blackburn’s panel. She attributed her opposition to “Washington’s spending problem.” By opposing the measure, Chairman Blackburn voted against her own package, known as Ray Baum’s Act, which reauthorized the Federal Communications Commission and included spectrum legislation (Mobile Now) and hundreds of millions of dollars to help TV broadcasters move to new airwave channels. Still, Chairman Blackburn is touting her accomplishments. If Rep Blackburn beats out Bredesen, expect her to bring her agenda of slashing telecom regulations, like the FCC’s broadband privacy rules, to the Senate.
Benton (www.benton.org) provides the only free, reliable, and non-partisan daily digest that curates and distributes news related to universal broadband, while connecting communications, democracy, and public interest issues. Posted Monday through Friday, this service provides updates on important industry developments, policy issues, and other related news events. While the summaries are factually accurate, their sometimes informal tone may not always represent the tone of the original articles. Headlines are compiled by Kevin Taglang (headlines AT benton DOT org) and Robbie McBeath (rmcbeath AT benton DOT org) — we welcome your comments.
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