The FCC offers a strong economic defense for its net neutrality rules in a filing at the U.S. Court of Appeals for the D.C. Circuit, made late Monday, countering Verizon and MetroPCS’s legal challenges to the December 2010 rules (CD Sept 11 p1). The FCC’s economic argument is that rather than discourage investment, the rules have had a stimulative effect. The commission also argues that Section 706 of the Communications Act, which directs the FCC to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans,” gives the commission authority to pass net neutrality rules. That, along with an order that explicitly tied its authority to specific statutes, make this more than simply a “rerun of Comcast,” the pleading said.
Those who post content on social media and similar platforms should be liable for proper disclosures and the FTC shouldn’t assign liability to the host of the user-generated content, NetChoice said. In comments for the agency’s May 30 workshop to explore online and mobile media advertising disclosures, the association said the FTC should acknowledge that hosts of content posted by third parties aren’t liable for “improper disclosure by these third-parties.” The FTC’s limiting the liability of the host of content from the actions of a third party “makes sense under Section 230 of the Communications Decency Act that protects such intermediaries,” it said. For mobile ads, the FTC should allow clickthrough for notice and choice, as in the Digital Advertising Alliance’s self-regulatory program, NetChoice said. The agency has noted on several occasions that disclosures via mobile apps are limited by screen size, the association said. “To help alleviate this problem, we recommend the FTC find that ads on mobile devices can off-load these disclosures via a click-through to another screen or application.” For location-based mobile ads, the FTC should incorporate clickthrough and consent mechanisms, it said. The agency should avoid addressing privacy disclosures in the proposed update to the Dot Com Disclosures because they are “outside the scope of the original guidelines and may impede the greater goal of the update,” NetChoice said.
The Obama administration believes it’s “critical to find a smart innovation-leaning balance” to cybersecurity legislation, said Danny Weitzner, White House deputy chief technology officer for Internet policy. And part of the balance is for the government to have authority to ensure that companies that have “our critical infrastructure are engaging in adequate security practices,” he said at the Computer & Communications Industry Association’s Washington caucus.
Whether the FCC should promulgate rules for TV antennas came up in several filings, posted to docket 10-235, on a rulemaking notice setting the stage for the agency to hold incentive auctions if it gets congressional authority. The NAB and Association for Maximum Service Television said the regulator ought to look into requiring antennas to carry labels outlining their performance. That filing and others said labeling won’t overcome technical hurdles (CD March 11 p6)to designing antennas so portable devices can get mobile DTV in the VHF band, where the commission seeks to voluntarily move some stations. Consumer electronics industry filings said the FCC lacks authority to take any action on antennas.
CTIA urged the FCC to rely on a collaborative process for developing requirements for hearing-aid compatible (HAC) handsets based on new technologies that go beyond CMRS. But two groups representing the hearing impaired said the FCC should adopt strong requirements that are of maximum benefit for those with hearing loss. Comments were due this week on a rulemaking approved by the commission at its Aug. 5 meeting.
Companies large and small, public interest groups and trade associations offered a divided FCC very different takes on whether proposed net neutrality rules would stifle or spur competition, in replies in the net neutrality proceeding. The biggest change from the first comment round, in January, is that many filers focused on the Comcast decision and the complicated question of whether the FCC has authority to proceed with new net neutrality rules or first would have to change the way broadband is classified to gain clear authority.
The FCC is likely to change its approach to net neutrality after losing a case Tuesday where enforcement of 2005 principles of ISP conduct was at issue, advocates for and opponents of new mandates told us. The U.S. Court of Appeals for the D.C. Circuit ruled that the commission lacked ancillary authority to censure Comcast’s network management practice of blocking peer-to-peer transmissions, as was expected (CD Feb 3 p2). The D.C. Circuit said it was unpersuaded by commission arguments that Sections 1, 230(b), 623, 706 and other parts of the Communications Act made the 2008 order within the scope of its congressional authority. Congress’ role is to facilitate “fresh” discussion on net neutrality, get consensus among all stakeholders and write a law, said House Communications Subcommittee Chairman Rick Boucher, D-Va.
ISP’s and their clients should consider the existing leading concepts in terms of privacy and intermediate liability in light of the phenomena of cloud computing, said U.S. State Department Coordinator of International Communications and Information Policy Philip Verveer after a Media Institute speech. Verveer told us cloud computing presents many advantages with respect to more extensive and less expensive services. During his speech Verveer said occasions -- such as the thirtieth anniversary of OECD’s Guidelines and the fifteenth anniversary of EU’s Data Protection Directive -- are sufficient to make a point: the privacy-related implications of cloud computing have been recognized and beginning to be addressed. However, it’s desirable to find an appropriate balance between the values associated with privacy and the opportunities for increased economic efficiency in the cloud concept, Verveer told us: “The closer we can come to an understanding with respect to privacy, jurisdiction, and intermediary liability, the better off we will be, particularly if we take care not to diminish the efficient operation of cloud computing beyond whatever may be necessary to protect other values deemed to be of superseding importance.” Regarding Internet intermediaries and their social and economic role, Verveer said that to the extent that the Internet’s various intermediaries, transmission companies, Internet service providers and application vendors are subject to liability for content provided by third parties, there inevitably will be less diverse content available. “Some of that will be a function of the risks of consequential damages,” Verveer said. “This is a matter where the United States has something very useful to offer the world.” Section 230 of the Communications Act, was passed in 1996 as part of the Communications Decency Act, itself a part of the Telecommunications Act amendments,” he said. The provision, which was introduced as a floor amendment by Rep. Christopher Cox, R-Calif., and former Rep. Ron Wyden, D-Ore., has been integral to the development of the Internet as we know it today, Verveer said, and it provides “a federal immunity” to any cause of action that would make service providers liable for information originating with a third-party user of the service.
The three appeals judges who heard FCC v. Comcast expressed skepticism that the commission had ancillary authority to find the company had violated net neutrality principles in blocking peer-to-peer file transfers (CD Aug 4/08 p1). Judges at the U.S. Court of Appeals for the District of Columbia Circuit pressed FCC General Counsel Austin Schlick Friday to cite a statute that gave the regulator direct authority over an ISP’s network management. Comcast’s lawyer was challenged to show how the company was harmed by the commission’s order against it, since no fine was imposed.
Yielding to complaints by consumer advocates, including Ohio’s Office of Consumers Counsel, members of the state Senate softened provisions in a telecom deregulation bill. But SB-162 continues to draw fire from Consumers Counsel Janine Migden-Ostrander and others, who say they'll keep up the pressure on the Senate. The opponents also plan to lean harder on the Ohio House, which has a version of the measure, for changes, they said. The state’s telcos defend the measure as reflecting a trend by states to deregulate phone services.