A Paean To Transparency Reports

from the encouraging-nudges-are-better-than-beatings dept

One of the ideas that comes up a lot in proposals to change Section 230 is that Internet platforms should be required to produce transparency reports. The PACT Act, for instance, includes the requirement that they "[implement] a quarterly reporting requirement for online platforms that includes disaggregated statistics on content that has been removed, demonetized, or deprioritized." And the execrable NTIA FCC petition includes the demand that the FCC "[m]andate disclosure for internet transparency similar to that required of other internet companies, such as broadband service providers."

Any person providing an interactive computer service in a manner through a mass-market retail offering to the public shall publicly disclose accurate information regarding its content-management mechanisms as well as any other content moderation, promotion, and other curation practices of its interactive computer service sufficient to enable (i) consumers to make informed choices regarding the purchase and use of such service and (ii) entrepreneurs and other small businesses to develop, market, and maintain offerings by means of such service. Such disclosure shall be made via a publicly available, easily accessible website or through transmittal to the Commission.

Make no mistake: mandating transparency reports is a terrible, chilling, and likely unconstitutional regulatory demand. Platforms have the First Amendment right to be completely arbitrary in their content moderation practices, and requiring them to explain their thinking both chills their ability to exercise that discretion and presents issues of compelled speech, which is itself of dubious constitutionality. Furthermore, such a requirement itself threatens the moderation process on a practical level. As we are constantly reminding, content moderation at scale is really, really, hard, if not outright impossible, to get right. If we want platforms to nevertheless do the best they can, then we should leave them to be focused on that task and not encumber them with additional, and questionable, regulatory obligations.

All that said, while it is not good to require transparency reports, they are nevertheless a good thing to encourage. With Twitter recently announcing several innovations to their transparency reporting (including now having an entire "Transparency Center" to gather all released data in one place), it's a good time to talk about why.

Transparency reports have been around for a while. The basic idea has remained constant: shed light on the forces affecting how platforms host user expression. What's new is these reports providing more insight on the internal decisions bearing on how platforms do this hosting. For instance, Twitter will now be sharing data about how it has enforced its own rules:

For the first time, we are expanding the scope of this section [on rules enforcement] to better align with the Twitter Rules, and sharing more granular data on violated policies. This is in line with best practices under the Santa Clara Principles on Transparency and Accountability in Content Moderation.

This data joins other data Twitter releases about manipulative bot behavior and also the state-backed information operations it has discovered.

Which bears on one of the most important reasons to have transparency reports: they tell the public how *external* pressures have shaped how platforms can do their job intermediating their users' expression. Historically these reports have been crucial tools in fighting attacks against speech because they highlight where the attacks have come from.

In some instances these censorial pressures have been outright demands for content removal. For instance, the Twitter report calls out DMCA takedown notices, and takedown demands predicated on trademark infringement claims. It also includes other legal requests for content removal. For instance, in its latest report covering 2019, it found that

[i]n this reporting period, Twitter received 27,538 legal demands to remove content specifying 98,595 accounts. This is the largest number of requests and specified accounts that we’ve received since releasing our first Transparency Report in 2012.

But removal demands are not the only way that governments can mess with the business of intermediating user speech. One of the original purposes of these reports was to track the attempts to seek identifying information about platform users. These demands can themselves be silencing, scaring users into pulling down their own speech already made or biting their tongues going forward – even when their speech may be perfectly lawful and the public would benefit from what they have to say.

We've written many times before, quite critically, about how vulnerable speakers are to these sorts of abusive discovery demands. The First Amendment protects the right to speak anonymously, and discovery demands, that platforms find themselves having to yield to, can jeopardize that right.

As we've discussed previously, there are lots of different discovery instruments that can be propounded on a platform (ex: civil subpoenas, grand jury subpoenas, search warrants, NSLs, etc.) to demand user data. They all have different rules governing them, which affects both their propensity for abuse and the ability of the user or platform to fight off unmeritorious ones.

Transparency reports can be helpful in fighting discovery abuse because they can provide data showing how often these different instruments are used to demand user data from platforms. The problem, however, is that all too often the data in the reports is generalized, with multiple types of discovery instruments all lumped together.

I don't mean they are lumped together the way the volume of NSL letters can only be reported in wide bands. (But do note the irony that all of these Section 230 "reform" proposals mandating transparency reports do nothing about aspects of current law that actively *prevent* platforms from being transparent. If any of these proposals actually cared about the ability to speak freely online as much as they profess, their first step should be to remove any legal obstacle currently on the books that compromises speakers' First Amendment rights or platforms' ability to be protective of those rights – and the law regarding NSLs would be a great place to start.)

I mean that, for instance, multiple forms of data requests tend to get combined into one datapoint. In this aggregated form the reports have some informational value, but it obscures certain trends that are shaped by differences in each sort of instruments' rules. If certain instruments are more problematic than others, it would be helpful if we could more easily spot their impact, and then have data to cite in our advocacy against the more troubling ones.

In the case of Twitter, these "information requests" are reported as either government requests or non-government requests. For the government requests they are further broken into "emergency" and "routine," but not obviously broken out any further. On the other hand, Twitter has flagged CLOUD Act requests as something to keep an eye on when it goes into effect, as it will create a new sort of discovery instrument that may not adequately take into account the user and platform speech rights they implicate. But whether these existing government data requests were federal grand jury subpoenas, search warrants from any particular jurisdiction, NSLs, or something else is not readily apparent. Nor are the non-governmental requests broken out either, even though it might be helpful to know when the subpoena stemmed from federal civil litigation, state civil litigation, or was a DMCA 512(h) subpoena (where there may not be any litigation at all). Again, because the rules surrounding when each of these discovery instruments can be issued, and whether/how/by whom they can be resisted, differ, it would be helpful to know how frequently each is being used. Censorial efforts tend to take the path of least resistance, and this data can help identify which instruments may be most prone to abuse and need more procedural friction to be able to stem it.

It may of course not be feasible to report with more granularity, whether for such reasons such as amount of labor required or any rules barring more detailed disclosure (see, again, NSLs). And platforms may have other reasons for wanting to keep that information closer to the chest. Which, again, is a reason why mandating transparency reports, or any particular informational element that might go into a transparency report, is a bad idea. But platforms are not alone; if one is being bombarded with certain kinds of information requests then they all likely are. Transparency on these details can help us see how no platform is alone and help us all advocate for whatever better rules are needed to keep everyone's First Amendment rights from being too easily trampled by any of these sorts of "requests."

Filed Under: fcc, ntia, section 230, transparency, transparency reports

Hypocritical AT&T Makes A Mockery Of Itself; Says 230 Should Be Reformed For Real Net Neutrality

from the oh-shut-the-fuck-up dept

I regret to inform you that AT&T is at it again. For over a decade now, the company has had a weird infatuation with Google. It seems to truly hate Google and has long decided that anything bad for Google must be good for AT&T. Because Google was an early supporter of net neutrality -- a concept that AT&T (stupidly and incorrectly) seems to think is an existential threat to its own business plans of coming up with sneaky ways to spy on you and charge you more -- over a decade ago, AT&T started floating the lame idea that if it's to be held to "net neutrality" Google ought to be held to "search neutrality." Of course, there's a problem with that: there's no such thing as "search neutrality" because the whole point of search is to rank results for you. A "neutral" search would be a useless search that ranks nothing.

However, now that the FCC (who knows better) caved in to the bumptious Trump demands to reinterpret Section 230 of the Communications Decency Act, AT&T stupidly (and self-destructively) has decided that it's going to comment against Section 230. AT&T top lobbyist Joan Marsh put up a truly spectacularly dumb blog post about how this is "the neutrality debate we need to have" (i.e., about Google and Facebook's treatment of content, rather than AT&T's treatment of network connections):

This Wednesday, the FCC will take comments on NTIA’s petition on reforming Section 230 of the Communications Decency Act, a provision enacted in 1996 to address a narrow set of concerns involving nascent internet platforms that then played only a marginal role in American life.  The purpose of the provision made sense at that moment in internet history:  Section 230 sought to insulate the newly emerging technology companies from liability risks they might otherwise face if they were deemed a publisher or speaker in the traditional sense.

First off, this is bullshit. Section 230 was not written to "address a narrow set of concerns involving nascent internet platforms that then played only a marginal role..." It was a key aspect of figuring out how the internet would work and was, in fact, driven by the concerns of various ISPs who realized that it would create massive problems if they were held liable for actions of their users on the network. This includes AT&T, though at the time AT&T in whatever form you might consider it, since the modern AT&T is really the remains of different telco companies that purchased AT&T.

Congress had no way to foresee a quarter century ago that this provision, intended to protect struggling startups at the dawn of the internet, would ultimately be wielded by the largest and most powerful companies in the world as a shield not just from unfair and frivolous lawsuits, but from what many consider to be every day responsibilities.

This is bullshit and wrong. Both authors of Section 230 have said exactly the opposite -- that Section 230 was written with the recognition of how important the internet would be and that it's working as intended. Marsh is rewriting history.

Since that time, America’s tech platforms have grown from their humble beginnings into the most powerful forces in the global economy today.  Five tech giants (Facebook, Amazon, Apple, Microsoft, Google) alone make up about 25% of the S&P 500 with valuations growing, even in a pandemic.

Marsh leaves out that AT&T itself is worth over $200 billion. It's not exactly a slouch. And when you combine it with Verizon, Comcast and others, it also represents quite a powerhouse. One that has spent the last decade especially fighting back against any form of regulatory guidelines that impact how it runs its business. It has pressured the FCC to remove pretty much all of its authority over the company. So it's truly hypocritical for it to suddenly be claiming that the FCC needs to take a stand and regulate Google and Facebook.

Meanwhile, it's always been clear that AT&T has been among the absolute worst companies regarding its treatment of consumers. AT&T is famous for jacking up prices, including hidden fees, spying on its users (or wanting them to pay more for their privacy) and handing data over to the NSA freely. Google offers most of its key services for free, has built a reputation around giving users much more control over privacy, and has fought legally against NSA attempts to collect its data. And if you look at general consumer satisfaction surveys it shows. 90% of the public likes what they get from Google. Meanwhile AT&T remains one of the most hated companies in America.

The decisions these companies make on a daily basis – which search results to rank first, which products to promote, which news stories to feature, and which third parties they will deal with and on what terms – shape virtually every aspect of America’s economic, social and political life.

What? This is... just a myth. Yes, ranking well in search can help companies, but (1) it's not everything and (2) the way you rank well in search is by... actually doing a good job in providing people what they need. Unlike AT&T.

Yet those decisions are shrouded in obscurity, away from public view, in a world where black-box algorithms and non-negotiable terms pick winners and losers in every sphere of public life.

If Google was bad at this, then people would use other search engines. But they don't. Because Google tends to give good results. Why is AT&T mad about that?

In comments this Wednesday, AT&T will join the growing consensus of voices concluding that online platforms should be more accountable for, and more transparent about, the decisions they control that fundamentally shape how we communicate, learn, shop, and are informed and entertained. We argue first that the dominant online platforms owe the public greater transparency about the choices made on their platforms. Such transparency is considered table stakes in every discussion about broadband networks owned by ISPs.

I'm not against more transparency, but AT&T is one of the least transparent companies out there. Google was the first company to publish transparency reports about things like content takedowns and (importantly) government requests for data. AT&T resisted calls to do the same for years and then when it finally agreed to do so provided significantly less data than Google. So, seriously, to argue that Google needs to be more transparent is fucking rich from AT&T.

And, again, Google did this by choice and it did so at the same time that AT&T itself was arguing that the FCC should have no oversight over its business. For AT&T to now argue that the FCC should force Google to be more transparent is the height of hypocrisy.

We also argue that Section 230 immunity should be modified to reduce the gross disparities in legal treatment that have emerged between the dominant online platforms and the traditional purveyors of third-party content, such as book publishers, newspapers, or radio and television businesses. There is no longer any reason that the nation’s most powerful online platforms should enjoy legal immunities unavailable to similarly-situated traditional companies.

This is... simply ridiculous. Section 230 protects every company on the internet the same way. Including AT&T. AT&T knows that it enjoys Section 230's protections as well. It's why no one gets to sue AT&T when an AT&T account holder does something illegal over its network.

And as the net neutrality debate soldiers on, as it surely will, the Section 230 debate and the broader tech scrutiny underway should serve as a reminder of where the power to control access to content, websites and e-services on the internet really resides – and the neutrality debate that really matters. Adopting an ISP-only “neutrality” regime is as backwards looking as it is mistargeted. It would be akin to landing the plane, but on the wrong day, at the wrong gate, and in the wrong airport.

No. Network neutrality matters because internet access is a commodity product with very, very few choices and extremely high costs (and, especially, switching costs). People want to buy access to the entire internet, not the internet of companies who paid AT&T. Meanwhile, people want Google to rank results, because that's what search is. This whole blog post by AT&T is truly ridiculous.

This is all cynical nonsense from AT&T's top lobbyist, trying to stick a knife in Google, the company AT&T has been jealous of for over a decade because Google actually provided people a service people wanted (for free) while AT&T relies on regulatory capture, hidden fees, government handouts, and destroying your privacy.

Filed Under: fcc, hypocrisy, joan marsh, net neutrality, ntia, section 230
Companies: at&t, google

Boys And Girls Club Backtracks After Folks Ask Why It's Helping A Cable Monopoly Lobby The FCC

from the fake-plastic-enthusiasm dept

Last month we noted how the Boys and Girls Club was one of several organizations cable giant Charter (Spectrum) was using to lobby the FCC in a bid to kill off merger conditions affixed to its 2015 merger with Time Warner Cable. Many of those conditions actively protect consumers from monopoly price gouging (a 7 year temporary moratorium on arbitrary and unnecessary usage caps, for example). Other conditions worked to expand broadband into less affluent areas. Despite the conditions actually helping, you know, boys and girls... the club's letter opposed them.

In a letter to the FCC, the Boys and Girls Club insisted that a recent $5,000 donation by Charter to the organization helped it weather the COVID-19 storm, and that "lifting these conditions will level the playing field for Charter while having zero impact on the online video marketplace." But after activist and reporter Phil Dampier pointed out that wasn't true (garnering local press attention), both the Boys and Girls Club and Charter appear to have quickly pivoted to damage control mode.

In a statement to a Rochester, New York NBC affiliate, the Club acknowledges that after getting a big donation they signed off on a letter to the FCC that was written by Charter -- without reading it:

"The Niagara Falls Boys & Girls Club received a request and prepared letter from Charter Communications affirming their charitable gift of $5,000 to support our summer programming. After quick review of the letter we submitted it. Unfortunately, upon closer review we see that the last paragraph of the letter states that we support 'Charter’s petition to sunset merger conditions.' It was never our intention to officially support anything. The Niagara Falls Boys & Girls Club does not take a stance either way. We thank Charter Communications for their support of the youth development services we provide to Niagara Falls children."

Whoops-a-daisy! I not only accidentally lobbied the FCC on behalf of a local cable monopoly, I supported policies that actively harm the entire stated mission of our organization! Charter, for its part, issued a statement that fails to acknowledge much of anything, then tries to brush aside the gross quid pro quo as a "misunderstanding":

"Charter has supported the life-changing work of the Boys & Girls Clubs across the state for many years and we regret this misunderstanding. As an inherently local business with more than 10,000 employees in the state, we strengthen the communities we serve through employee volunteerism, in-kind support and technology, and philanthropic giving. We work in partnership with hundreds of local leaders and organizations, such as the Niagara Falls Boys & Girls Club and the 1,400 young people whose lives they enhance each year, and will continue to do so."

That's a non-answer and a dodge.

A wide variety of groups take telecom cash to repeat whatever they're told, whether it's rural school associations, the U.S. Cattlemen's Association, civil rights advocacy organizations, or even balloonist clubs. Sometimes entirely fake groups are created. Sometimes existing groups are "co-opted" to varying degrees to support bad policy. It was a common tactic in the net neutrality repeal. Hell, it was a major AT&T tactic in its bid to block the 1984 break up of AT&T.

For lobbyists the overall goal is simple: to create the illusion of broad support for bad ideas the actual public -- including these target groups' actual constituents -- otherwise oppose. One time out of twenty the press notices (reporting on unsexy but important merger filing minutiae doesn't generate many ad impressions), and everybody involved pretends it was just some accidental oversight. Because it's legal, nobody does anything. Rinse, wash, repeat.

Filed Under: astroturf, boys and girls clubs, donations, fcc, lobbying
Companies: boys and girls club, charter, charter spectrum

Regulators Are Ignoring How Low Orbit Satellite Broadband Is Trashing The Night Sky

from the blinded-by-science dept

As previously noted, Space X, Amazon, and others are pushing harder than ever into the low-orbit satellite broadband game. The industry, pockmarked by a long road of failures, involves firing thousands of smaller, cheaper, lower orbit satellite constellations into space to help supplement existing broadband services. The lower orbit means that LO satellite service will offer lower-latency broadband than traditional satellite offerings, which for 15 years or so have been widely maligned as expensive, slow, "laggy," with annoying monthly caps.

And while these services should absolutely help bring some additional options to rural Americans, nautical ventures, and those out of range of traditional service, folks shouldn't get their hopes up in terms of broader disruption of the uncompetitive U.S. telecom market. The physics involved in satellite transmission means there will always be limited capacity and odd throttling and network management restrictions, meaning it won't really make much headway in highly monopolized major metro areas. In short, the tech is absolutely a positive advancement, but it's not going to be the game changer many think.

And there's another growing problem with low orbit satellite technology. As we launch thousands of these micro-satellite constellations into space, the LO satellites are annoying professional and amateur astronomers, who say they're interfering with space observation and important scientific data collection (especially at wide-field observatories). During the recent monitoring of the NEOWISE comet, for example, photographer Daniel Lopez showed what Starlink "photobombing" looks like in practice for those trying to track these sort of events in the night sky:

Not great. And it's going to get notably worse. Amazon's Project Kuiper constellation, for example, will eventually consist of 3,236 satellites, more than the 2,600 satellites currently in orbit. Space X's Starlink project, in contrast, could ultimately consist of as many as 12,000 satellites all told. In some instances this is an even worse problem for slightly higher altitude LO satellites. And keep in mind this is just the testing phase... we haven't even gotten close to broader commercial deployment yet.

While Space X says it's taking steps to minimize the glare and "photo bombing" capabilities of these satellites (such as anti-reflective coating on the most problematic parts of the satellites), regulators at the FCC and elsewhere appear to be asleep at the wheel in terms of the broader impact on science and astronomy:

"We don’t yet have any kind of industrywide guidelines,” said Michele Bannister, a planetary astronomer at the University of Canterbury in New Zealand. “We don’t have an industry body that’s producing good corporate citizenship on the part of all of these enthusiastic companies that want to launch, and we don’t have any regulatory setup in place that’s providing clear guidelines back to the industry.”

She added, “To me, honestly, it feels like putting a bunch of planes up and then not having air traffic control."

No guidelines. Not just patchy or undeveloped guidelines. But none.

It won't get mentioned by the Times, but part of the problem are regulators who base their decisions on ideology and not data. In telecom, folks on the "deregulate everything and free market magic springs forth from the sidewalk" side of the policy aisle have long tried to paint emerging broadband alternatives as near-mystical panaceas to justify deregulation. As in, "we don't need regulation of telecom monopolies or consumer protection because this new technology X will create competition and fix everything." It never works because the U.S. telecom industry is painfully monopolized and broken, yet that never seems to matter.

This performative policy happened most notably years back with broadband over powerline (BPL), which former FCC boss turned cable's top lobbyist Mike Powell hyped as the "great broadband hope." Powell routinely hyped the tech to justify his massive deregulation of telecom in the aughts, but willfully ignored the fact the technology was an interference prone mess causing massive problems for radio transmissions nearby. BPL failed, and you only need to look at U.S. broadband prices, rankings, or Comcast's customer support to see how this worked out for everybody.

Low orbit satellite is far more useful and solid than BPL ever was, but I'm expecting to see it used in much the same way by the Pai FCC. As in: Pai's crew will quickly rubber stamp Amazon and Space X's ambition, hopeful that the added competition will help them retroactively justify their complete demolition of U.S. telecom consumer protections at the telecom lobby's behest. As in, we didn't need pesky oversight of monopolies because free market competition saved the day. But by Musk's own admission Starlink won't truly disrupt U.S. telecom because it can't serve dense urban or suburban markets, meaning companies like AT&T, Verizon, and Comcast won't be meaningfully disrupted, and reality and aspirational policy once again won't line up.

When your top priorities are the maximizing of corporate revenues or the retroactive justification of bad policy based exclusively on ideology, the end result usually tends to lack... nuance. And in this case, this regulatory myopia could in many ways have unintended harm that goes well beyond the telecom sector and into the night sky itself.

Filed Under: broadband, competition, fcc, leo, low earth orbit, night sky, pollution, satellite broadband, satellites

Bizarre Court Ruling Helps Cable Broadband Monopoly Charter Tap Dance Around Merger Conditions

from the our-courts-might-be-broken dept

Eager to impose higher rates on its mostly captive customers, Charter Communications (Spectrum) has been lobbying the FCC to kill merger conditions affixed to its 2015 merger with Time Warner Cable. The conditions, among other things, prohibited Charter from imposing nonsensical broadband caps and overage fees, or engaging in the kind of interconnection shenanigans you might recall caused Verizon customers' Netflix streams to slow to a crawl back in 2015. The conditions also involved some fairly modest broadband expansion requirements Charter initially tried to lie their way out of.

But with the GOP having neutered FCC authority over broadband providers (including the axing of net neutrality rules), Charter obviously is eager to take full advantage. So on one hand, they've been engaged in some fairly dodgy lobbying of the FCC to scuttle the conditions, which already had a seven year sunset provision (they expire in 2 years anyway). On the other hand, the telecom-backed Competitive Enterprise Institute (CEI) took a different tack, and filed suit against the conditions, somehow convincing four Charter customers to sue under the argument the conditions (not the merger) raised consumer prices.

This being America, the telecom-backed think tank last week scored a favorable ruling thanks to the US Court of Appeals for the District of Columbia Circuit. In its ruling (pdf), the court completely bought into the CEI's arguments that conditions crafted by consumer advocates, aimed at protecting consumers, somehow hurt consumers. As such, the court vacated two of the conditions -- one banning Charter from having to offer lower-cost broadband plans, and one prohibiting ISPs from engaging in dodgy behavior out at the edge of the network (interconnection).

In its ruling, the court proclaims that the restrictions on interconnection drove up consumer prices:

"To begin, the condition plainly caused New Charter to forgo revenue from edge providers. Before the merger, Time Warner, the largest broadband provider among the merging companies, raised substantial revenue from paid interconnection agreements. So did Bright House. But the merger condition prohibits New Charter from using those same revenue sources."

But that's a misrepresentation of what the conditions did. If you'll recall, networks of all kinds for years engaged in settlement free peering. As incumbent ISPs faced more competition from the likes of Netflix in the TV space, transit and streaming video companies alike accused ISPs like Verizon and Charter of intentionally letting their peering points get congested to force companies to pay significantly higher rates if they wanted their traffic to reach an incumbent ISP's customers. The FCC's net neutrality rules and the merger conditions were fairly mild restrictions designed to prevent ISPs from using interconnection as a way to drive up costs for their competitors.

Whether you like the rules or their implementation, the argument that they harmed consumers is nonsensical, and it's not being made in good faith. Telecom mergers as a whole generally drive up costs. History is very clear on this point. Yet here we have the telecom sector and its think tank allies trying to claim it was the attempts to mitigate merger harms...not the damn merger itself that was the problem.

One of the other major conditions, a seven year ban on bullshit usage caps, was also singled out by CEI as some bizarre affront to consumer welfare. But the court refused standing on caps under the bizarre claim that Charter has purportedly no interest in imposing such profitable restrictions:

"Nonetheless, the consumers have failed to prove causation because there is scant evidence that New Charter would offer usage-based pricing if allowed to do so. Before the merger, its predecessor companies rarely offered it. Charter had specifically rejected it. Time Warner offered one plan with usage-based pricing, but abandoned efforts to expand the practice after “significant public backlash.” Id. at 6363. Bright House never offered it. Given the lack of evidence that New Charter’s predecessor companies had offered usage-based pricing before the condition was imposed, or that New Charter would offer usage-based pricing if allowed to do so, the appellants have failed to show traceability or redressability.

For one, the company's name is "Time Warner Cable," not Time Warner. And while it's good the court rejected the CEI's attempts to scuttle the ban on broadband caps (which again expire in two years anyway), the logic here doesn't make much sense either. It's abundantly clear that Charter is lobbying to kill these conditions in large part because not having them would allow the monopoly to raise prices. That this is something that's even debated by the court shows they don't really even understand the motivations of the players here. The only reason Time Warner Cable didn't succeed in capping usage previously was historic public backlash.

In short, a telecom monopoly-linked think tank filed a lawsuit claiming that post-merger prices went up because of some pretty modest conditions specifically designed to try and prevent that. And the courts, which routinely reject consumer group lawsuits built on far-more concrete logic, bought into that reasoning entirely (in large part because the Trump FCC refused to defend them). Nowhere does the court even faintly recognize the lawsuit is in bad faith. Nor does the court recognize that Charter lied so frequently about its adherence to the merger conditions it was almost kicked out of New York State.

It's another example of why it's often far easier to just ban problematic mergers, instead of trying to rely on a bunch of conditions that are difficult to enforce, don't fix what they profess to, aren't permanent, or can't be enforced due to regulatory capture and a slow but steady erosion of the U.S. court system.

Filed Under: broadband, broadband caps, competition, data caps, fcc, interconnection, merger conditions, net neutrality, overage fees
Companies: charter spectrum, chater, time warner cable

Confused Critic Of Section 230 Now In Charge Of NTIA

from the well-that's-unfortunate dept

Multiple experts on Section 230 have pointed out that the NTIA's bizarre petition to the FCC to reinterpret Section 230 of the Communications Decency Act is complete nonsense. Professor Eric Goldman's analysis is quite thorough in ripping the petition to shreds.

Normally we expect a government agency like NTIA to provide an intellectually honest assessment of the pros/cons of its actions and not engage in brazen partisan advocacy. Not any more. This petition reads like an appellate brief that would get a C- in a 1L legal writing course. It demonstrated a poor understanding of the facts, the law, and the policy considerations; and it ignored obvious counterarguments. The petition is not designed to advance the interests of America; it is designed to burn it all down.

As we mentioned, it seemed likely that the petition was written by Adam Candeub, a lawyer who was only hired a few months ago by the NTIA. Readers may recognize Candeub's name because he represented the white nationalist Jared Taylor in a failed lawsuit against Twitter for kicking him off the platform. At the time of the lawsuit, I engaged in an email discussion with Candeub in which he tried to justify his lawsuit, and it included the same sort of nonsense and debunked legal theories we now see in the NTIA petition. In that email exchange, he told me that "Section 230 doesn't help Twitter" because "if an internet firm starts to edit or curate others' comments -- creating its own content, it loses this immunity." That, of course, is incorrect.

Indeed, the California courts agreed with me (and basically every other court) in ruling that Section 230 protected Twitter's decision to remove Candeub's client.

Of course, in the past couple of years since all of that went down, Candeub has continued his quixotic quest to reimagine Section 230 to say what he wants it to say, rather than what the plain language of the law, and basically every court on record (and the authors of the law) have said that it actually says.

And now he'll get to do that as the guy in charge of NTIA. Axios is reporting that Candeub has been promoted to become the acting head of NTIA. Given Candeub's activism on this issue it's an odd role for him, and, as has happened so often in this particular administration, a destruction of historical norms. NTIA has historically been extremely balanced and avoids direct political advocacy type positions. It certainly appears that it will be taking a different approach under Candeub, and that approach includes a blatant misrepresentation of key laws about the internet. Historically, NTIA has been an important agency in protecting the open internet -- but now it should be seen as hostile to such an open internet. And that's disappointing for its legacy.

Filed Under: adam candeub, cda 230, executive order, fcc, free speech, intermediary liability, ntia, section 230

Charter Spectrum Tells FCC Broadband Caps Are 'Popular' As It Tries To Kill Merger Conditions Preventing Them

from the bad-things-are-good-for-you dept

To be very clear: American consumers don't like broadband usage caps. At all. Most Americans realize (either intellectually or on instinct) that monthly broadband usage caps and overage fees are little more than monopolistic cash grabs. They're confusing, frustrating price hikes on captive customers that accomplish absolutely none of their stated benefits. They don't actually help manage congestion, and they aren't about "fairness" -- since if fairness were a goal you'd have a lot of grandmothers paying $5-$10 a month for broadband because they only check their email twice a day.

Enter U.S. cable giant Charter (Spectrum), which is currently in the middle of trying to get the FCC to kill the merger conditions applied as part of its 2015 $79 billion acquisition of Time Warner Cable and Bright House Networks. Those conditions, among other things, required that Charter adhere to net neutrality (despite the fact that the GOP has since killed net neutrality rules), and avoid usage caps and overage fees. Both conditions had 7 year sunset clauses built in, and Charter, eager to begin jacking up U.S. broadband consumer prices ever higher, has been lobbying to have them killed two years early.

Charter's lobbying tactics so far have included giving money to groups like the Boys and Girls Club in exchange for gushing support for the elimination of the merger conditions, despite the fact that doing so would harm these groups' constituents with higher prices.

Charter's other major play apparently involves trying to tell the FCC that U.S. consumers really like monthly usage caps and annoying fees, restrictions the cable monopoly claims are "popular." From a filing (pdf) spotted by Ars Technica:

"There is also evidence that some consumers—either those who do not consume a lot of data and/or those who are looking for a lower-cost plan—may want a service where prices are based on the amount of data used... These different plans are proliferating in the market because they offer consumers a cost-effective alternative to unlimited data plans that are more than adequate to meet their needs. The DC/UBP [data caps and usage-based pricing] Condition, however, prevents Charter from keeping pace with its competitors and offering consumers the kinds of plans they are looking for."

This is a cute bit of logic U.S. broadband monopolies have long used that attempts to imply that caps and overage fees are about "fairness." But they've never been about fairness. ISPs love to insist they just want to "experiment with price differentiation," but you will never see a giant ISP offer a super cheap plan for people like your grandma that only check the Weather Channel website and their email a few times a day. And they don't do that because the goal is to drive up the costs of everybody's connection over the longer haul to please investors' needs for higher quarterly returns.

And they can get away with this because in most U.S. markets, their only competition is a phone company that hasn't upgraded its DSL lines since 2004 or so, or no competition at all. If the market actually saw competition and had functional regulatory oversight, you might see plans more closely tailored toward your actual usage. But in a market absent of real pricing competition and overseen by fecklessly captured regulators, what you get instead is endlessly higher prices, usually in the form of sneaky, misleading fees. Charter's filing tries to tap dance around this problem as well:

"Opponents’ claims that the BIAS market is not competitive are beside the point and overstated. The Conditions are unnecessary regardless of the level of BIAS competition because Charter, like other broadband providers, lacks the incentive or ability to discriminate against OVDs. OVDs are critical to the BIAS business and far too large and powerful to thwart with data caps or interconnection fees.

Only a cable monopoly with a 20 year track record of overcharging captive customers could try to argue that a lack of competition is "beside the point." Incumbent telecom monopolies, eager to protect their dwindling TV revenues, have every incentive to use usage caps anti-competitively. And they already are. AT&T, for example, exempts its own streaming video service from its arbitrary usage caps, while financially penalizing users that use Netflix, Amazon, or any other competitor.

There is zero doubt that Charter wants to follow down this path as well. And it certainly will; it just wants to do so slowly to minimize backlash (picture the boiling frog fable with you as the frog). There's also not much doubt that the captured, fact-phobic Trump FCC is eager to help them, proclaiming that letting a cable monopoly price gouge captive customers is about "restoring internet freedom," or whatever half-baked justification is on the menu this week.

Filed Under: broadband caps, consumers, fcc, merger conditions
Companies: charter, charter spectrum