Telecom Monopolies Are Exploiting Crappy U.S. Broadband Maps To Block Community Broadband Grant Requests

from the do-not-pass-go,-do-not-collect-$200 dept

We've noted repeatedly that despite a lot of breathless rhetoric about America's "quest to bridge the digital divide," U.S. government leaders still don't actually know where broadband is or isn't available. Shoddy broadband mapping has generally been a good thing for regional U.S. telecom monopolies, who not only have been allowed to obscure competition gaps (and the high prices and poor service that result), but hoover up an endless gravy train of subsidies and tax breaks for networks that...mysteriously...always wind up half deployed. Our failure to measure deployment success has been painfully, repeatedly exploited.

But there are other ways that incumbents exploit our ongoing failure to map broadband to their advantage. Case in point: roughly 230 U.S. communities have applied for broadband grants being doled out as part of the National Transportation Infrastructure Agency (NTIA)'s $288 million Broadband Infrastructure Program. But when a town or local cooperative/utility/public-private partnership looking to build its own, better broadband network applies for the grant, they're facing baseless challenges by ISPs which claim they already serve these areas.

Grafton, New Hampshire, for example, is looking to build its own fiber network after years of market neglect. It had 3,000 of the 4,000 census blocks they applied for grant money for falsely challenged by regional giants Comcast and Charter Spectrum:

"Of the 4,000 census blocks covered by Grafton’s grant application, Coates said that incumbent ISPs challenged 3,000 of them, even those dominated by cemeteries. In the majority of the challenges, telecom giants overstated available speeds and existing coverage, he noted. “My immediate response was that this was them telling us to go boil water,” Coates said. “Here you go, prove that you can do this in these three thousand census blocks. Have fun figuring it out.”

As we've noted, there's a big lobbying push afoot by entrenched monopolies to ensure as little government stimulus money as possible goes toward building out competition to their regional dominance, no matter what that competition looks like (cooperatives, utilities, local governments, smaller private ISPs, private/public partnerships). To justify their obstruction to local community grants, big ISPs like Comcast and Charter point to FCC broadband maps they know aren't accurate to insist nothing needs to be done. That perpetuates the sub-par service and high prices created by monopolization.

Except the FCC's maps routinely overstate both coverage and speeds, and have for decades. The FCC's methodology also declared (until only recently) that an entire census block is "served" with broadband, if an ISP claims it can serve just one home in that census block. While there have finally been some meaningful improvements to FCC mapping pushed through Congress, it's still going to be several years (and significantly more funding) before most of those fixes can be properly implemented. Some states have developed their own alternative mapping solutions, but for many, engaging in a bureaucratic battle with deep-pocketed monopolies to disprove their coverage claims isn't financially viable.

While the NTIA has made some progress of its own on mapping, it's still being tasked with doling out $42 billion in additional broadband grants as part of the recently passed infrastructure bill -- despite still not having an entirely accurate picture of the problem it's trying to fix. That is, and will continue to be, exploited by entrenched monopolies like AT&T, Comcast, Charter, or Verizon which have not only fought against better mapping for years (knowing more accurate data would only spur calls for reform), but have a vested interest in fighting tooth and nail against any effort to disrupt the uncompetitive status quo.

Filed Under: broadband, broadband maps, community broadband, digital divide, fcc, grants, ntia, telecom

House Republicans Don't Want Infrastructure Money Going Toward Broadband Competition

from the do-not-pass-go,-do-not-collect-$200 dept

For years the broadband industry has successfully convinced the U.S. government to remain fixated exclusively on broadband coverage gaps, not the overall lack of broadband competition. That's in part because they've known for decades that substandard maps mean policymakers have never really known which areas lack or need access. That's helped create an ecosystem where we throw billions upon billions of dollars in tax breaks and subsidies at regional monopolies every year, in exchange for broadband networks that are routinely half-completed.

With a record $42 billion broadband investment on the horizon, the industry is obviously worried that some of that money might go toward (gasp) added competition. As in, not just used to expand access to the estimated 20-40 million Americans without broadband, but funding to help bring new competitors to the estimated 83 million Americans living under a broadband monopoly. That regional monopolization, as we've long documented, is why U.S. broadband tends to be expensive, spotty, slow, and with terrible customer service.

Of course you can't just come out and acknowledge you don't want money going toward encouraging broadband competition, even though more competition would greatly benefit consumers, small businesses, and countless internet-based economies. So instead the industry's biggest players (and the politicians and regulators paid to love them) like to complain about "overbuilding," or the act of creating "duplicative" broadband networks in "already served" areas. This is generally framed in such as a way as to make it sound as if broadband in most parts of the country is already wonderful, and spending any money to expand access in these "already served" areas would be completely wasteful.

That rhetoric and language was quick to pop up in a House Republican letter sent to the two agencies overseeing fund distribution: the NTIA (pdf) and FCC (pdf). In the letters, lawmakers profess they're just super duper worried about the potential for waste:

"Given the billions of dollars concurrently being awarded for broadband infrastructure deployment by several agencies and the Commission, this Office is on the front line of preventing duplicative and wasteful subsidized overbuilding.As you work to allocate grants pursuant to these laws, we urge you to prioritize funding for unserved communities that lack access to any broadband connection rather than funding duplicative or upgraded service in areas that already have broadband access.

Here's the thing though: House Republicans are defining "access" as just a single ISP offering speeds of 25 Mbps downstream, 3 Mbps upstream. More often they define it as "any broadband at all, however pathetic." As such, "access" as theses folks envision it could be a single terrible cable company, a single lazy phone company offering substandard DSL, or a single satellite broadband provider offering capped, expensive, slow, high-latency satellite. That's, well, a monopoly. Lawmakers are being prodded by giants like AT&T to ensure that nobody does much of anything to challenge said monopoly, but it's framed in such a way as to make it sound as if lawmakers are doing due diligence regarding fraud and waste.

In reality you can focus on shoring up broadband coverage gaps and expanding competition. In fact, these often operate synergistically. We've seen time and time again how local competition forces entrenched broadband providers to expand their footprint, lower prices, or offer significantly faster speeds. So by funding and encouraging competition, you technically are also helping to shore up broadband coverage gaps.

While the government is no stranger to waste, most of the waste in telecom has generally come at the hands of the telecom monopolies whose turf House Republicans are protecting here. Countless billions have been thrown at giants like AT&T, Frontier, and Verizon for networks they routinely only half deploy. In the twenty years I've covered the sector I've lost track of the billions of state and federal dollars given to giant industry incumbents for network upgrades that simply don't arrive (often with zero meaningful penalty). Notice how it's rarely a concern if the company getting the money is, say, AT&T.

Yeah, the broadband component part of the infrastructure bill is going to be a massive challenge, in large part because most of the broadband mapping improvements being adopted won't arrive in time. Entrenched monopolies of course know this, and are busy injecting themselves in the process on both the state and federal level to ensure as much money as possible goes to them, and not potential competitors. Loyal lawmakers want to help them in this process under the performative cover of just being ultra concerned about government efficiency and waste, when in reality it's all about defending the busted (but very profitable) status quo.

Filed Under: broadband, competition, fcc, infrastructure, ntia, spending

Team Biden Finally Gets Around To Staffing U.S. Telecom Regulators

from the better-late-than-never dept

It was the longest delay in staffing U.S. telecom agencies in Presidential history, but a White House announcement states the administration will promote interim boss Jessica Rosenworcel to be permanent FCC boss, while appointing former Tom Wheeler advisor and consumer advocate Gigi Sohn to fill the third empty Democratic Commissioner seat. Sohn played a major role in both the crafting of net neutrality rules (since demolished by telecom sector lobbyists during the Trump era) and the FCC's broadband privacy rules (also since demolished by telecom sector lobbyists during the Trump era).

Another agency that's increasingly doing interesting work on broadband (see their recent, more accurate mapping efforts) is the NTIA, which will now be helmed by Alan Davidson. All three choices are broadly popular, understand the potential of competent regulatory oversight and the pitfalls of incompetent overreach. And while maybe not as paradigm-rattling as Lina Khan's appointment to the FTC, all three will collectively be a notable sea change from the Trump era which, with the occasional exception, involved doing pretty much whatever AT&T and Comcast wanted.

There was some initial talk about Gigi Sohn being appointed FCC boss, but that would have involved demoting Rosenworcel (whose term ends at the end of this year). Given Sohn's history of consumer and net neutrality advocacy, she likely wasn't as popular among entrenched telecom providers, making an FCC boss confirmation hearing more contentious. Still, consumer groups see Rosenworcel as somebody they can work with, and are generally positive about both picks:

"Jessica Rosenworcel, Gigi Sohn, and Alan Davidson all have years of experience in fighting for the public interest in broadband policy, whether it is in government or the nonprofit sector. If reports are confirmed by the White House, these nominations will be historic and a clear indication that the Administration is ready to move forward with bold, but experienced leadership in the key agencies dealing with broadband policy. While later than normal, these nominees are the type of skilled leadership that our country needs at this time."

Rosenworcel didn't have quite the same level of support as Sohn among progressives, who weren't entirely thrilled with Rosenworcel's decision to scuttle the Wheeler FCC's attempts to bring some added competition to the cable box (she backed the false claim, also supported by the Copyright Office, that cracking open the cable industry's hardware monopoly over the cable box would have "violated copyright"). But Rosenworcel had the support of numerous Senators and parts of the GOP, who see her as the less "radical" option. Rosenworcel is absolutely smart and competent, and she's be the first permanent female FCC boss in agency history. Sohn would be the first openly LGBTQ Commissioner in agency history. Both immensely important milestones.

The question now is whether the choice of Rosenworcel comes with some caveats. For example it's not entirely clear if Rosenworcel will be aggressive in restoring all the things stripped away during the Trump administration at AT&T and Comcast's behest, whether that was the elimination of net neutrality rules (which largely gutted the FCC's consumer protection authority), or the demolition of media consolidation rules historically crafted with bipartisan support.

There's a nasty tendency in DC policy circles to talk ambiguously about the "quest to fix the digital divide," while ignoring the reason U.S. broadband is actually spotty, expensive, and slow: regional monopolization and the state and federal corruption that protects it. Because clearly calling out the real culprit upsets politically powerful campaign contributors and kingmakers tethered to our intelligence and law enforcement systems, folks in both parties tend to just not bother, keeping the focus on less contentious, safer subjects (wireless spectrum, how much everybody hates robocalls).

But you can't fix a problem you refuse to even acknowledge, which is why U.S. broadband remains perpetually mediocre thirty years on.

Which is to say while these appointments are all solid, it's important to keep your gaze focused on what the newly forged NTIA and FCC actually do, not what they say. Hollow rhetoric about the "miracles of 5G connectivity" or the "digital divide" mean nothing if you're not willing to take on the lumbering monopolies that are actually causing most of the sector's problems in the first place. The "digital divide" (unaffordable, spotty broadband) is an active policy choice and the direct result of coddling monopolies for 30 straight years. Real telecom leadership and reform has to at least start with actually acknowledging that, something lawmakers and telecom regulators from both parties have historically been violently allergic to.

Filed Under: broadband, fcc, gigi sohn, jessica rosenworcel, ntia, policy

Biden 'Competition Council' Urges Biden FCC To Do Things It Can't Do Because Biden Hasn't Fully Staffed It Yet

from the circular-dysfunction dept

Back in July, the Biden administration signed an executive order creating a new "competition council" tasked with taking a closer look at competition and monopoly issues in various business sectors. One of those sectors was telecom, which remains dominated by a handful of politically powerful regional monopolies, resulting in decades of spotty broadband service, high prices, and terrible customer service.

Back in July, the council offered several bits of advice as to how this could be fixed, including forcing ISPs to provide more clear pricing data to government (allowing policymakers to clearly illustrate the harms of regional monopolies), forcing ISPs to be more transparent with consumers about sneaky fees and pricing, and the restoration of the FCC's consumer protection authority stripped away during the Trump-era net neutrality repeal:

"(i) adopting through appropriate rulemaking 'Net Neutrality' rules similar to those previously adopted under title II of the Communications Act of 1934 (Public Law 73-416, 48 Stat. 1064, 47 U.S.C. 151 et seq.), as amended by the Telecommunications Act of 1996, in "Protecting and Promoting the Open Internet," 80 Fed. Reg. 19738 (Apr. 13, 2015);"

Last week the council held its inaugural meeting, including eight cabinet members and the leaders of seven independent agencies, including the FCC and acting chair Jessica Rosenworcel. As it was designed to do, the meeting focused on ways the administration can lower prices, shore up competition, and break down monopolistic logjams across business sectors:

"In the Council’s inaugural meeting, NEC Director Brian Deese (Council Chair) emphasized that the President’s competition agenda is core to the Administration’s plan to Build Back Better and critical to keeping prices low for American consumers, spurring innovation, and allowing small businesses to compete on a level playing field."

But for risk of beating a dead horse, the FCC still can't actually do any of the things the counsel asks of it because the Biden team still hasn't picked permanent agency bosses for either the FCC or NTIA.

Without a permanent boss and 3-2 voting majority, the FCC can't really do much of anything controversial to shore up telecom competition issues, much to the relief of sector giants like AT&T, Comcast, and Verizon. Mired in partisan gridlock (quite intentionally by the Trump administration and the speedy appointment of Nathan Simington at the end of his term), it can't do much else of any controversy either, whether that involves media consolidation or disaster preparedness. Worse, Rosenworcel's tenure ends at the end of the year, so if this apathy continues there's a chance the agency could see a 2-1 GOP majority in the new year, leaving it even further incapable of any real reform.

I've spent months talking to folks around DC asking why team Biden hasn't staffed its telecom regulators eight months into his first term, and nobody has a reasonable explanation. While there's clearly a lot going on, the administration wasn't too busy to give top Comcast lobbyist David Cohen a cushy job as the U.S. Canadian Ambassador. At this rate, by the time a permanent FCC boss is seated, a full year of policy time will have been wasted, which doesn't exactly scream "urgency" when it comes to telecom monopoly, media consolidation, or other reform.

The apathy on telecom and FCC staffing is an odd clash with the selection of antitrust-buster Lina Khan at the FTC. But it kind of fits the current DC obsession with fixating exclusively on "big tech," while "big telecom" engages in much of the same (or sometimes worse) behavior. At some point you have to wonder if the apathy on telecom and media reform isn't a screw up but an active policy choice.

Filed Under: broadband, competition, fcc, joe biden, ntia, white house

Biden Has Wasted A Year Failing To Fill Top Telecom Oversight Spots

from the do-not-pass-go,-do-not-collect-$200 dept

Consumer groups have grown increasingly annoyed at the Biden administration's failure to pick a third Democratic Commissioner and permanent FCC boss nearly eight months into his term. After the rushed Trump appointment of unqualified Trump BFF Nathan Simington to the agency (as part of that dumb and now deceased plan to have the FCC regulate social media), the agency now sits gridlocked at 2-2 commissioners under interim FCC head Jessica Rosenworcel.

While the FCC can still putter along tackling its usual work on spectrum and device management, the gridlock means it can't do much of anything controversial, like reversing Trump-era attacks on basic telecom consumer protections, media consolidation rules, or the FCC's authority to hold telecom giants accountable for much of, well, anything. If you're a telecom giant like AT&T or Comcast, that's the gift that just keeps on giving.

As the Washington Post notes, the Biden camp hasn't appointed anybody to lead the other top telecom regulatory agency, the NTIA. The inaction on both the NTIA and FCC appointments are setting records:

"Nearly eight months into his presidency, Biden has yet to pick permanent leaders for the Federal Communications Commission and the Commerce Department’s National Telecommunications and Information Administration, which together oversee and set policy for the broadcast and Internet service industries. For the FCC, that’s slower than any president since Jimmy Carter in 1977 — just by a few days — and for NTIA, it’s the longest ever since the agency’s founding in 1978.

Adding some complexity to this mess is the fact that interim FCC boss Jessica Rosenworcel's term is up at the end of the year. So if this trend of telecom policy apathy continues, there's the possibility that the GOP could enjoy a 2-1 Commissioner majority at the Biden FCC. Which, you know, isn't great if you care about doing absolutely anything to hold regional telecom monopolies accountable. During a pandemic. In which broadband has been shown to be essential infrastructure. And during a climate crisis. When companies are showing their networks still aren't resilient enough. It's bad, is what I'm saying. Even if your primary goal isn't restoring net neutrality and FCC authority.

While the Biden administration certainly inherited a lot to deal with, there's really no excuse for the delay. It's not as if the administration is being asked to build a nuclear reactor out of string cheese and lint -- it's just some regulatory appointments and hearings. At this rate, by the time the FCC appoints somebody, it will take most of the rest of the year to get them seated. So whereas the Trump GOP set about dismantling telecom consumer protection with a brutal efficiency, the Biden team will have wasted an entire year. Consumer groups are being polite about it, but it's a big screw up:

"We've had a lost year in policymaking because of the slowness of the Biden administration to name a full FCC,” said Christopher Lewis, president and CEO of consumer group Public Knowledge, which backs reinstating the Obama-era net neutrality rules. “It's probably the biggest missed opportunity we have had in communications policy this year."

The Ajit Pai Donald Trump GOP assault on the FCC's consumer protection authority was relentless, ruthless, and incredibly efficient. Nathan Simington, generally viewed as unqualified for the role given his lack of telecom experience, got his FCC spot with a 31 day rushed appointment. The Democrats had an opportunity to be equally efficient and ruthless in appointing their picks and restoring FCC authority, and instead they've chosen to trip over their own asses. Nobody I've spoken to anywhere in DC can provide a functional reason why telecom oversight has simply been forgotten.

Though it is worth reminding folks that the myopic DC internet policy focus on "big tech" is something telecom and media giants (from AT&T to Rupert Murdoch) have actively and repeatedly encouraged. They want the focus exclusively on the large tech giants whose ad empires they covet and not on their own monopolization, privacy, or other problems. It's also worth reminding folks that there was no such delay, controversy, or consternation when it came time to give Comcast lobbyist David Cohen (a top Biden fundraiser) a kushy job as Canadian Ambassador.

At some point you have to assume that whoever has Biden's ear likes having an FCC whose consumer protection authority has been largely lobotomized courtesy of one of the most scandal prone and unpopular policy proceedings in internet policy history.

Filed Under: fcc, joe biden, net neutrality, ntia, regulation, telcos

New NTIA Broadband Map Exposes Expensive, Patchy US Broadband

from the deregulate-ALL-the-things! dept

We've noted for a very long time that despite a lot of lip service about broadband, the U.S. government still doesn't have a very good idea of where broadband is or isn't available. There's a long line of reasons for this, including political pressure by regional monopolies that very much don't want a lack of competition and high prices to be apparent (somebody might get the crazy idea to try and fix the problem!). The FCC has also long been criticized for methodology that declares a census block (which can be hundreds of square miles) "served" with broadband if just one home can theoretically get service from an ISP.

The problem is made fairly apparent if you spent a few minutes with the FCC's $350 million broadband availability map, which just outright hallucinates available competitors and speeds, and can't be bothered to include an essential metric: prices.

Telecom mono/duopolies like AT&T and Comcast want policymakers looking at the problem through rose-colored glasses. The illusion protects up a broken US telecom subsidization process that mindlessly throws money at them for projects that make no coherent sense or often don't materialize. All propped up by zero accountability, and this belief that if you "deregulate" telecom, magic happens. But deregulating a broken captured industry dominated by natural monopolies doesn't result in magic. It results in those dominant monopolies behaving worse than ever. There's thirty years of evidence to that point.

It's a very profitable mess that a select group of large companies work very, very hard to keep intact.

Enter the National Telecommunications and Information Administration (NTIA), which earlier this month put a stick in the front wheel of this dysfunction by releasing a new broadband map that tracks both median speeds and affordability, the latter being a subject big ISPs and captured regulators never want to talk about. The map integrates data from a wide variety of sources including Ookla, M-Lab, Microsoft, and the FCC. The red in the shot below represents places where the median broadband speeds fall below 25 Mbps down, 3 Mbps up (the FCC's current definition of broadband). It's not pretty:

There's a button on the left of the NTIA's map that lets you overlap lower income areas and see how ISPs like AT&T have routinely neglected marginalized communities, something also documented by several past reports. This is the net result of what countless billions in poorly managed subsidies and rampant, often mindless deregulation delivered. Basically, a US broadband market dominated by regional monopolies and overseen by captured, feckless regulators. The data is the data, and for decades those who've coddled entrenched monopolies have tried very, very hard to pretend that this problem doesn't exist.

One amusing bit: if you zoom in and look at North Dakota, you'll find that it breaks the national trend of substandard, sluggish broadband:

Why? Because a group of communities grew tired of the apathy of their regional monopolies and bought up their networks to form a massive, interconnected group of cooperatives. Like many community broadband networks, it was a project born out of frustration, resulting in fiber networks that deliver faster, cheaper speeds. Studies keep showing that locally-owned community projects like this routinely offer better, cheaper, faster service at more transparent price points. Such networks often tend to be more accountable because they're owned and operated by people who live in those communities.

Yet instead of embracing these niche solutions as a creative way to drive an essential service to more people for less money, these projects are routinely demonized by those (like recent FCC boss Ajit Pai) who'd prefer broadband remain monopolized and expensive. There's an entire cottage industry funded by the telecom sector singularly tasked with pretending that US broadband is perfectly healthy, and attacking absolutely any effort to do anything differently. And they've been dominating telecom policy for decades. It's this monopolization and corruption that results in the "digital divide" still being a problem in 2021.

Community broadband isn't some mystical panacea. Like any other business plan they're dependent on the quality of the planning and people involved. But these networks do frequently drive better, cheaper broadband to underserved parts of the United States, and they repeatedly force apathetic regional monopolies to try a little harder. It doesn't have to be an either/or equation. There's room for various solutions and players, and numerous ways these home-grown efforts can be integrated into adult broadband policy (cooperatives, piggybacking on existing utilities, private/public partnerships).

But instead of doing that, we let entrenched monopolies write shitty state laws that ban such efforts entirely. We let captured regulators demonize an organic, grass roots response to market failure as "government run amok" or "socialism." It's a stupid, self-defeating mess we can fix with enough momentum, but only once people recognize that it's happening. But when you read most major news reports and hear most politicians talk about "the digital divide," regional monopolization (and the state and federal corruption that protects it) is bizarrely and routinely never even mentioned.

Filed Under: broadband, broadband maps, coverage, maps, ntia

Americans For Prosperity Sue Commerce Department To Find Out Who Was Influencing NTIA's Attack On Section 230

from the interesting-list dept

This is kind of fascinating. The group Americans for Prosperity have announced they've filed FOIA litigation against the Commerce Department after it has refused to respond to a FOIA request seeking communications between two former top NTIA officials that we've discussed here recently, regarding Section 230.

As background, you'll recall that after Twitter added two fact checks on Donald Trump's misleading tweets about mail-in ballots, Trump issued a bizarre executive order, demanding that (among other things) NTIA ask the FCC to reinterpret Section 230. Trump needed to order NTIA to do this because the FCC is supposed to be an independent agency and the President isn't supposed to order it to do anything. Indeed, as you'll recall, when Barrack Obama merely made a public statement about net neutrality, without directing the FCC to do anything, basically every Republican, including Donald Trump, whined that he was illegally trying to "bully' the FCC to do his bidding.

It quickly came out that two NTIA staffers were responsible for crafting the Executive Order: Adam Candeub, a long term critic of Section 230 who had just been hired to NTIA, and Nathan Simington. Candeub was later promoted to run NTIA and just this week was given a top job in the Justice Department. Simington, despite little qualifying experience, has been made an FCC Commissioner.

This was despite a separate FOIA request that revealed that Candeub and Simington, together, had emailed with a Fox News producer, asking to get Fox News host Laura Ingraham to attack Section 230 to help move the NTIA petition forward, and noting that it was important to do so to help re-elect Trump and help with down-ballot Republicans. This, of course, should be disqualifying for either of them to hold government jobs. When you get a job in the government you represent everyone and not just your own political party. You are not supposed to be using your government job to bully the media to do things for purely political reasons.

Given that, there should be tremendous interest in just who Candeub and Simington were talking to about Section 230. And Americans for Prosperity sent a FOIA request seeking exactly that information, asking for any emails between the two of them about Section 230 with a short list of known anti-Section 230 folks, including former Fox lobbyist (and the person responsible for getting FOSTA passed), Rick Lane, anti-230 FCC Commissioner Brendan Carr, AT&T (a company protected by 230, but which has decided to attack the law because it hates Google), DCI Group (a famously sketchy lobbying organization) and a bunch of others.

The full complaint details what happened:

On October 26, 2020, NTIA transmitted its first interim production, which contained 128 records in 35 electronic files. Ex. 5. Thirty-five records were withheld “in part or in their entirety,” under Exemption 5, but without identifying any relevant privilege. Id. An additional eight records were “withheld in part under Exemption 6.”

In this production, one record revealed that Mr. Candeub sent an email from a government email address to his private, gmail.com email address.

On November 10, 2020, AFPF asked NTIA whether it could email the next production and when another interim or final production could be expected.

On November 11, 2020, AFPF raised concerns that the first interim production did not include any text messages or instant messages. Id. (“These should be included in ‘all communications’ as well as e-mail, hand-written notes, etc.”).

On November 16, 2020, NTIA responded that the second interim response was prepared, but the agency required an address clarification. Ex. 8. NTIA also claimed that AFPF’s “request only specified email, it did not specify text and IM. If [AFPF] would like to request text messages and IM, [it] will need to file another FOIA request for those records.”

AFPF immediately confirmed its mailing address and noted that its initial FOIA request contained “no reference to seeking only e-mail records,” as it instead mentioned “all communications.” Id. AFPF further noted that this “matches the same language in [NTIA’s] . . . clarification confirmation e-mail from September 18 . . . . Therefore, the request covers text messages and IMs.” Id. AFPF also asked how many records were left after the second batch and when AFPF could expect to receive them.

NTIA responded that it does “not have a final count or an estimate of how many records will be responsive to [AFPF’s] request. Nor d[id it] have an estimate of when this will be completed.” Id. Additionally, NTIA attempted to justify its refusal to include records beyond e-mails in a search for “all communications” by pointing to a footnote in AFPF’s request that defines the term “record.”

On November 18, 2020, NTIA transmitted its second interim production, which contained 153 records in 39 electronic files. Ex. 9. Fifty-nine records were withheld “in part or in their entirety,” under Exemption 5, but without identifying any relevant privilege. Id. An additional twenty-five records were “withheld in part under Exemption 6.” Id. Additionally, fourteen records were referred to the Department of Justice and three to the Department of Commerce “for a direct response[.]”

On December 14, 2020, AFPF emailed NTIA noting that both Mr. Candeub and Mr. Simington will reportedly be leaving the agency. Ex. 10. Given these reports, AFPF requested “that NTIA take affirmative steps to preserve all potentially responsive records, including text message records and any private email account that may contain government records.”

To date, NTIA has not provided a final determination on AFPF’s request, nor has it released another interim or final production of responsive records.

And thus, the lawsuit for failing to comply with FOIA's requirements. As with most FOIA lawsuits, the main remedy sought is having NTIA actually cough up the records requested, as required by the law. It sure would be interesting to see what's there, and why NTIA seems unwilling to obey the law and hand over those records.

Filed Under: adam candeub, brendan carr, commerce department, donald trump, executive order, fcc, foia, nathan simington, ntia, rick lane, section 230, transparency
Companies: afp, at&t, dci

Trump Appoints Unqualified Guy Who Hates Section 230 To Top Justice Department Role

from the why-is-he-in-government-at-all? dept

In 2018, we wrote about a law professor named Adam Candeub, who was one of the lawyers for white supremacist Jared Taylor, suing Twitter in a doomed lawsuit for kicking him off its platform. I had a confusing email exchange with Candeub which I wrote about in that piece, which suggested that he was either unaware of Section 230 at the time he filed the lawsuit, or simply confused about the long list of decisions around 230 that made the lawsuit an obvious loser (which is what happened). Candeub and his co-counsel were very angry about my article, and insisted that their alternative interpretation of Section 230 would win the day.

Since being proven wrong, Candeub has spent a tremendous amount of energy trying to twist and torture Section 230 interpretations into his own belief of what they should be. Back in May, Candeub was hired by the Trump administration to be deputy assistant secretary, where he helped guide Trump's ridiculolus executive order on 230 a few weeks later. It recently came out that he, and new FCC commissioner Nathan Simington, abused their government jobs to try to get Fox News to attack Section 230, telling a producer of Fox News host Laura Ingraham's show that doing so may help get Trump and down-ballot Republicans elected in the fall.

In normal times, federal government officials are supposed to represent everyone, and not just their own political party. They are not supposed to engage in campaigning or electioneering on the public's dime, and they certainly aren't supposed to be working with the press to help elect their own party. Yet, that's exactly what Candeub and Simington did. In response, Simington got his FCC commissionership (despite basically no relevant telecom law experience) and Candeub... has now been promoted to a senior level Justice Department job:

Adam Candeub, the acting head of Commerce’s National Telecommunications and Information Administration, has been named deputy associate attorney general starting Monday, according to two officials and a third person familiar with the matter, who requested anonymity to discuss the plans. The political appointment does not require congressional confirmation.

The concern, as noted in Politico, is that he's going to use the remaining month in office to cause problems for the internet:

Candeub has played a central role in carrying out Trump’s executive order targeting social media companies like Twitter and Facebook over allegations they censor conservative viewpoints. The executive order asked federal agencies, including the Federal Communications Commission, to narrow the scope of a crucial set of liability protections that shield online companies from lawsuits over the user content they host. One of Candeub’s advisers at the NTIA, Nathan Simington, was confirmed last week to a five-year term as an FCC commissioner.

Trump has taken increasing aim at the legal shield, a 1996 law known as Section 230, in the twilight of presidency, including vowing to veto a must-pass defense spending bill that overwhelmingly sailed through both the House and Senate because it does not repeal the protections. And he’s rallied his allies across federal agencies and in Congress against the law, which has been widely credited with enabling the creation of today’s thriving online industry.

Candeub, who first joined NTIA earlier this year, has a long history of bashing the social media giants over allegations of an anti-conservative bias. In 2018, Candeub represented a white nationalist in a lawsuit against Twitter alleging the social network censored him.

The article further notes that in writing the NTIA's petition to the FCC (in response to the executive order that he helped craft), Candeub worked closely with the DOJ, which has itself continued to attack Section 230 (despite the fact that Section 230 has an exemption for any federal criminal laws, and thus does not impact the DOJ at all):

Candeub actively consulted with the Justice Department during this summer’s efforts to draft the administration’s social media petition to the FCC. He also ran draft copy by White House adviser James Sherk, according to emails obtained by POLITICO through a Freedom of Information Act request.

“I’m feeling heavy breathing,” Candeub wrote in one July 13 email pressing DOJ counsel Lauren Willard and DOJ's Chris Grieco for feedback on the petition, citing pressure from Sherk.

It's not clear what Candeub can do in the month he has left, but it certainly is alarming that he's been put in this position. He has shown over his few months in office that he has no interest in representing the American people as a public servant, but rather in trying to twist a law that stymied a high profile lawsuit he was involved in, and he's implicated in an email to try to do that twisting to help his political allies. There is no way he should be in any government role, let alone a powerful one at the Justice Department.

Filed Under: adam candeub, commerce department, doj, ntia, section 230

Trump's FCC Nominee Asked Fox News To Help Destroy Section 230 To Help Elect More Republicans

from the free-speech? dept

We've written a few times about Nathan Simington, who is currently nominated to take over Michael O'Rielly's seat at the FCC. As you'll recall, O'Rielly's renomination was withdrawn after he dared to give a talk in which he noted, accurately, that the 1st Amendment means that the government cannot regulate how private companies handle content moderation. Simington, in contrast to O'Rielly, has been at the center of various efforts to force social media companies to host speech they do not wish to host (a clear violation of the 1st Amendment, which does not allow for the government to compel speech).

Simington was the guy who apparently wrote the original executive order that kicked off the ridiculous (and still unconstitutional) FCC review process of Section 230. He also works at NTIA, which is run by Adam Candeub, a guy who has spent the last few years attacking (or misrepresenting) Section 230, after he filed a failed lawsuit against Twitter on behalf of a white supremacist. When the lawsuit was filed, Candeub appeared not to understand 230 when I engaged with him in an email exchange. Since then he's spent the intervening years, trying to change 230 to match his false belief of what it should be.

So, perhaps it shouldn't be too surprising that it's now been revealed that Simington and Candeub appeared to spend some time over the summer trying to get Fox News' bloviating talking heads to start attacking Section 230 as well, hoping that this would spur the FCC on towards action (again, which legally it cannot do) against the law.

Simington, a senior adviser in a key Commerce Department tech agency, wrote that the popular Fox News host could help sway the FCC to act on Trump's proposal before Election Day. He also suggested that democracy hinged on the ability of the commission — which has not traditionally regulated social media — to target Silicon Valley companies.

The actual letter to a Fox News staffer, in which Simington notes that this is part of a scheme with Candeub (who is cc'd) is really stunning. Having a government official asking a media personality to assist the government in pushing through an unconstitutional attack on the 1st Amendment is staggering -- and should immediately raise questions as to why either Simington or Candeub are part of the government. Simington flat out admits that he's trying to force the FCC to take action to help support the President and others "down ballot" in the election.

That is not supposed to be how government officials act. Campaigning/electioneering efforts are not supposed to be done by current government staff who are paid by our taxpayer dollars. This is a hugely problematic stance, and should call into question both Simington and Candeub's role in government. It certainly should preclude Simington from being considered for a position on the FCC itself.

As discussed, my boss, Dept. Ass't Sec'y Adam Candeub (CC'd), is strategizing about how best to present the NTIA's petition to the FCC re CDA 230. We hope that FCC rulemaking will uphold press and communication freedoms while restraining social media companies from behavior that, absent certain case law re CDA 230, would be illegal.

As you know, this is a hot issue right now, not merely per the President's major social media executive order, but also (1) Senator Cruz's recent actions re Twitter, coming out of his long-standing concerns about the partiality and bias emerging from social media's de facto content creation via moderation, promotion and demotion, and (2) Senator Hawley's new social media bill.

We therefore hope that there might be some way of engaging with Ms. Ingraham on our piece of this issue. Any additional support we might be able to obtain could help to get the FCC on board more quickly and thereby ensure a freer, fairer social media landscape going into the elections this fall. This is of concern both to the presidency and also down-ballot, and given the emerging role of social media as a replacement for mass media, our democracy will be weakened if we cannot respond to this issue quickly and effectively.

If you have some time tomorrow, I'd love to talk further about this, whether re engaging with Ms. Ingraham or generally for our own planning.

Senator Richard Blumenthal (a long term vocal critic of Section 230) seems to recognize how problematic this is:

“This email shows that Mr. Simington was an active and eager soldier in President Trump’s attempted assault on the First Amendment," Blumenthal said in a statement to POLITICO. "Mr. Simington was willing to bully the very agency he’s been nominated to join in order to do the electoral bidding of the Republican party on the taxpayer dime.

"I am demanding that Mr. Simington explain himself in follow-up questions for the record, and I certainly hope he will be more forthcoming in his written responses than he was during his hearing,"

In any normal administration this would be a massive scandal, abusing the power of government to help a specific party/candidate. Remember all the (mostly exaggerated) fuss about the IRS paying extra attention to conservative non-profits? That was one of the biggest scandals of the Obama era, in part because it was government employees supposedly making decisions based on politics (even though the details showed it wasn't quite that bad). This is worse. Here they are flat out admitting that they are trying to work with Fox News to use the levers of government to unconstitutionally change the law in order to help their preferred political party win in an election.

Filed Under: adam candeub, election, fcc, free speech, laura ingraham, michael o'rielly, nathan simington, ntia, politics, section 230
Companies: fox news

Busting Still More Myths About Section 230, For You And The FCC

from the human-readable-advocacy dept

The biggest challenge we face in advocating for Section 230 is how misunderstood it is. Instead of getting to argue about its merits, we usually have to spend our time disabusing people of their mistaken impressions about what the statute does and how. If people don't get that part right then we'll never be able to have a meaningful conversation about the appropriate role it should have in tech policy.

It's particularly a problem when it's a federal agency getting these things wrong. In our last comment to the FCC we therefore took issue with some of the worst falsehoods the NTIA had asserted in its petition demanding the FCC somehow seize imaginary authority it doesn't actually have to change Section 230. But in reading a number of public comments in support of its petition, it became clear that there was more to say to address these misapprehensions about the law.

The record developed in the opening round of comments in the [FCC's] rulemaking reflects many opinions about Section 230. But opinions are not facts, and many of these opinions reflect a fundamental misunderstanding of how Section 230 works, why we have it, and what is at risk if it is changed.

These misapprehensions should not become the basis of policy because they cannot possibly be the basis of *good* policy. To help ensure they will not be the predicate for any changes to Section 230, the Copia Institute submits this reply comment to address some of the recurrent myths surrounding Section 230, which should not drive policy, and reaffirm some fundamental truths, which should.

Our exact reply comment is attached below. But because it isn't just these agencies we want to make sure understand how this important law works, instead of just summarizing it here, we're including a version of it in full right here, below.

As we told the FCC, there are several recurring complaints that frequently appear in the criticism leveled at Section 230. Unfortunately, most of these complaints are predicated on fundamental misunderstandings of why we have Section 230, or how it works. What follows is an attempt to dispel many of these myths and to explain what is at risk by making changes to Section 230 – especially any changes born out of these misunderstandings.

To begin with, one type of flawed argument against Section 230 tends to be premised on the incorrect notion that Section 230 was intended to be some sort of Congressional handout designed to subsidize a nascent Internet. The thrust of the argument is that now that the Internet has become more established, Section 230 is no longer necessary and thus should be repealed. But there are several problems with this view.

For one thing, it is technically incorrect. Prodigy, the platform jeopardized by the Stratton Oakmont decision, which prompted the passage of Section 230, was already more than ten years old by that point and handling large amounts of user-generated content. It was also owned by large corporate entities (Sears and IBM). It is true that Congress was worried that if Prodigy could be held liable for its users' content it would jeopardize the ability for new service providers to come into being. But the reason Congress had that concern was because of how that liability threatened the service providers that already existed. In other words, it is incorrect to frame Section 230 as a law designed to only foster small enterprises; from the very beginning it was intended to protect entrenched corporate incumbents, as well as everything that would follow.

Indeed, the historical evidence bears out this concern. For instance, in the United States, where, at least until now, there has been much more robust platform protection than in Europe, investment in new technologies and services has vastly outpaced that in Europe. (See the Copia Institute's whitepaper Don't Shoot the Message Board for more information along these lines.) Even in the United States there is a correlation between the success of new technologies and services and the strength of the available platform protection, where those that rely upon the much more robust Section 230 immunity do much better than those that depend on the much weaker Digital Millennium Copyright Act safe harbors.

Next, it is also incorrect to say that Section 230 was intended to be a subsidy for any particular enterprise, or even any particular platform. Nothing in the language of Section 230 causes it to apply to apply only to corporate interests. Per Section 230(f)(2) the statute applies to anyone meeting the definition of a service provider, as well as any user of a service provider. Many service providers are also small or non-profit, and, as we've discussed before, can even be individuals. Section 230 applies to them all, and all will be harmed if its language is changed.

Indeed, the point of Section 230 was not to protect platforms for their own sake but to protect the overall health of the Internet itself. Protecting platforms was simply the step Congress needed to take to achieve that end. It is clear from the preamble language of Section 230(a) and (b), as well as the legislative history, that what Congress really wanted to do with Section 230 was simultaneously encourage the most good online expression, and the least bad. It accomplished this by creating a two-part immunity that both shielded platforms from liability arising from carrying speech, as well as from any liability in removing it.

By pursuing a regulatory approach that was essentially carrot-based, rather than stick-based, Congress left platforms free to do the best they could to vindicate both goals: intermediating the most beneficial speech and allocating their resources most efficiently to minimize the least desirable. As we and others have many times pointed out, including in our earlier FCC comment, even being exonerated from liability in user content can be cripplingly expensive. Congress did not want platforms to be obliterated by the costs of having to defend themselves for liability in their users' content, or to have their resources co-opted by the need to minimize their own liability instead of being able to direct them to running a better service. If platforms had to fear liability for either their hosting or moderation efforts it would force them to do whatever they needed to protect themselves but at the expense of being effective partners in achieving Congress's twin aims.

This basic policy math remains just as true in 2020 as it did in the 1990s, which is why it is so important to resist these efforts to change the statute. Undermining Section 230's strong platform protections will only undermine the overall health of the Internet and do nothing to help there be more good content and less bad online, which even the statute's harshest critics often at least ostensibly claim to want.

While some have argued that platforms who fail to be optimal partners in meeting Congress's desired goals should lose the benefit of Section 230's protection, there are a number of misapprehensions baked into this view. One misapprehension is that Section 230 contains any sort of requirement for how platforms moderate their user content; it does not. Relatedly, it is a common misconception that Section 230 hinges on some sort of "platform v. publisher" distinction, immunizing only "neutral platforms" and not anyone who would qualify as a "publisher." People often mistakenly believe that a "publisher" is the developer of the content, and thus not protected by Section 230. In reality, however, as far as Section 230 is concerned, platforms and publishers are actually one and the same, and therefore all are protected by the statute. The term "publisher" that appears in certain court decisions merely relates to the understanding of the word "publisher" to mean "one that makes public," which is of course the essential function of what a platform does to distribute others' speech. But content distribution is not the same thing as content creation. Section 230 would not apply to the latter, but it absolutely applies to the former, even if the platform has made editorial decisions with respect to that distribution. Those choices still do not amount to content creation.

In addition, the idea that a platform's moderation choices can jeopardize their Section 230 protection misses the fact that it is not Section 230 that gives platforms the right to moderate however they see fit. As we explained in our previous comment and on many other occasions, the editorial discretion behind content moderation decisions is protected by the First Amendment, not Section 230. Eliminating Section 230 will not take away the right for platforms to exercise their discretion. What it will do, however, is make it practically impossible for platforms to avail themselves of this right because it will force them to have to expend their resources defending themselves. They might potentially eventually win, but, as we earlier explained, even exoneration can be an extinction-level event for a platform.

Furthermore, it would effectively eviscerate the benefit of the statute if its protection were conditional. The point of Section 230 is to protect platforms from the crippling costs of litigation; if they had to litigate to find out whether they were protected or not, there would be no benefit and it would be as if there were no Section 230 at all. Given the harms to the online ecosystem Section 230 was designed to forestall, this outcome should be avoided.

All of this information boils down to this essential truth: the NTIA petition should be rejected, and so should any other effort to change Section 230, especially one that embraces these misunderstandings.

Filed Under: comments, fcc, ntia, section 230