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U.S. Justice Department Proposes Major Changes to Social Media and Content Providers’ Immunity

Phillip Dampier September 23, 2020 Public Policy & Gov't, Reuters 1 Comment

Barr

WASHINGTON (Reuters) – U.S. President Donald Trump met with nine Republican attorneys general on Wednesday to discuss the fate of a legal immunity for internet companies after the Justice Department unveiled a legislative proposal aimed at reforming the same law.

Trump met with state attorneys general from Texas, Arizona, Utah, Louisiana, Arkansas, Mississippi, South Carolina, Missouri and West Virginia.

The White House said they discussed how the attorneys general can utilize existing legal recourses at the state level – in an effort to weaken the law known as Section 230 of the Communications Decency Act, which protects internet companies from liability over content posted by users.

After the meeting, Trump told reporters he expects to come to a conclusion on the issue of technology platforms within a short period. It was not immediately clear what conclusion he was referring to.

He also said his administration is watching the performance of tech platforms in the run-up to the Nov. 3 presidential election.

“In recent years, a small group of powerful technology platforms have tightened their grip over commerce and communications in America,” Trump said. “Every year countless Americans are banned, blacklisted and silenced through arbitrary or malicious enforcement of ever-shifting rules,” he added.

Earlier on Wednesday, the Justice Department unveiled a legislative proposal that seeks to reform Section 230. It followed through on Trump’s bid earlier this year to crack down on tech giants after Twitter Inc placed warning labels on Trump tweets, saying they have included potentially misleading information about mail-in voting.

The Justice Department’s bill would need congressional approval and is not likely to see action until next year at the earliest. There are several pieces of legislation doing the rounds in Congress that seek to curb the same immunity. It was not immediately clear whether the Justice Department will support any single piece of legislation that has already been proposed.

Any such bill would have to win the support of the Republicans who control the Senate and the Democrats who control the House of Representatives in order to become law. Such legislation’s future would be further complicated if the Democrats regain control of the Senate or win the White House.

The Justice Department proposal primarily states that when internet companies “willfully distribute illegal material or moderate content in bad faith, Section 230 should not shield them from the consequences of their actions.”

It proposes a series of reforms to ensure internet companies are transparent about their decisions when removing content and when they should be held responsible for speech they modify. It also revises existing definitions of Section 230 with more concrete language that offers more guidance to users and courts.

It also incentivizes online platforms to address illicit content and pushes for more clarity on federal civil enforcement actions.

Attorney General William Barr said in a statement the administration was urging “Congress to make these necessary reforms to Section 230 and begin to hold online platforms accountable both when they unlawfully censor speech and when they knowingly facilitate egregious criminal activity online.”

In June, the Justice Department proposed that Congress take up legislation to curb this immunity. This was after Trump in May signed an executive order that seeks new regulatory oversight of tech firms’ content moderation decisions and backed legislation to scrap or weaken Section 230.

Trump in May also directed the Commerce Department to file a petition asking the Federal Communications Commission to limit protections under Section 230. The petition is still pending.

The Internet Association – a group representing major internet companies including Facebook, Amazon.com, and Google, said the Justice Department’s proposal would severely limit people’s ability to express themselves and have a safe experience online.

The group’s deputy general counsel, Elizabeth Banker, said moderation efforts that remove misinformation, platform manipulation and cyberbullying would all result in lawsuits under this proposal.

Reporting by David Shepardson and Nandita Bose in Washington; Additional reporting by Jeff Mason, Diane Bartz and Eric Beech in Washington and Ayanti Bera in Bengaluru; editing by Patrick Graham, Chizu Nomiyama and Jonathan Oatis

Trump Nominates Ally to Push FCC Towards Social Media Regulation

Phillip Dampier September 16, 2020 Public Policy & Gov't, Reuters No Comments

Simington

WASHINGTON (Reuters) – President Donald Trump, pressing for new social media regulations, plans to nominate a senior administration official to be a member of the Federal Communications Commission (FCC), the White House said on Tuesday.

The nomination of Nathan Simington, a senior adviser at the Commerce Department’s National Telecommunications and Information Administration (NTIA), comes after the White House abruptly announced in early August it was withdrawing the nomination of Republican FCC Commissioner Mike O’Rielly to serve another term.

Trump issued an executive order in May requiring the NTIA to petition the FCC asking the commission to impose new regulations on social media moderation practices after Twitter Inc warned readers to fact-check his posts about unsubstantiated allegations of fraud in mail-in voting.

Simington helped draft the May executive order, the Washington Post reported.

By contrast, O’Rielly expressed skepticism about whether the FCC had authority to issue new regulations covering social media companies. In July, he said the “the First Amendment protects us from limits on speech imposed by the government – not private actors – and we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way.”

O’Rielly, who has not commented on the White House withdrawal of his name, congratulated Simington Tuesday in a Twitter post on his nomination “and offer best wishes for a smooth confirmation process and successful term.”

FCC Chairman Ajit Pai opened NTIA’s petition to public comment. The comment period expires this week. He has declined to comment on its merits.

A group representing major internet companies including Facebook Inc and Amazon.com Inc urged the FCC to reject the petition, saying the effort “is misguided, lacks grounding in law, and poses serious public policy concerns.”

NTIA asked the FCC to limit protections for social media companies under Section 230, a provision of the 1996 Communications Decency Act that shields social media companies from liability for content posted by their users and allows them to remove lawful but objectionable posts.

Reporting by David Shepardson and Eric Beech; Editing by Peter Cooney and Christopher Cushing

Hostile Takeover Faces Resistance: Altice USA and Rogers Want Atlantic Broadband and Cogeco

A Quebec-based cable company is the target of a hostile takeover by a pair of larger American and Canadian cable operators that would like to divide up the assets for themselves, but have met strong resistance from the family that controls Cogeco and Quebec politicians worried about job losses in the province.

Altice USA, which owns Cablevision/Optimum and Suddenlink in the United States, made an uninvited bid of $7.8US billion on Wednesday to take control of Cogeco, a Canadian cable operator that offers service in parts of Ontario and Quebec, and also owns American subsidiary Atlantic Broadband. If the takeover is successful, Altice has agreed to sell Cogeco’s Canadian assets to telecom giant Rogers, Canada’s largest cable operator.

Louis AUDET, head of Cogeco

The Audet family, which holds 69% of Cogeco’s voting rights and 82.9% of the voting rights at Cogeco Communications through subsidiary Gestion Audem, Inc., quickly rejected the offer.

“Members of the Audet family unanimously reiterated that they are not interested in selling their shares. The family takes pride in its stewardship role in both companies, offering high-quality services to its customers, enriching the communities in which they operate and creating superior returns for shareholders through sound growth strategies,” said Louis Audet, who serves as president of Gestion Audem, Inc.

Cogeco has been a frequently rumored target for an imminent corporate takeover, much like America’s Cablevision was when it was controlled by the Dolan family. Ongoing consolidation among telecom companies in Canada and the United States have disfavored medium-sized cable and phone companies, making them ripe for takeover bids. Cogeco’s unique position in territories where much larger Rogers Cable operates in Ontario and Videotron in Quebec has inspired near-constant rumors that Rogers would acquire Cogeco to complete cable consolidation in Ontario and gain entry into parts of Quebec. Rogers already owns 41% of the subordinate shares of Cogeco and 33% of those of Cogeco Communications, which gives them a minority stake and voice in the company. Partnering with Altice USA to do a deal would spare Rogers from having to arrange a sale of Cogeco’s American operations.

In addition to strong resistance from the Audet family, the transaction immediately was ensnared in the cultural and economic hornet’s nest involving Ontario and Quebec provincial politics. Quebec politicians are highly sensitive to takeovers involving Quebec-based companies, especially those coming from Ontario. In 2000, Rogers’ attempt to acquire Videotron stirred controversy over moving the cable company’s headquarters out of Quebec in favor of Ontario. The fact Rogers is based in English-speaking Canada also did it no favors. French Quebec’s Quebecor acquired Videotron instead.

Once again, political differences between anglophone Ontario and francophone Quebec quickly re-emerged after news of the offer went public.

In an interview with Quebec City radio station CJMF, Quebec’s Premier François Legault immediately dismissed the takeover bid.

“It is out of the question to let this Quebec company move its head office to Ontario,” Legault said. “We talked this morning with Louis Audet […] and we’ll do whatever it takes to keep the head office here.”

Pierre Karl Péladeau, president and CEO of Quebecor, which owns Videotron, also slammed the deal on Twitter, claiming Rogers would eliminate Cogeco’s major corporate presence in Montréal Place Ville Marie, and move everything to Toronto. Péladeau noted Cogeco’s most valuable and experienced employees are not “flying whales” prepared to uproot their lives and relocate to Ontario.

The sensitivity of watching job losses in Quebec in return for job gains in Ontario is not likely to be missed by Quebec’s politicians and could bring significant opposition to a deal if Altice USA sweetens its offer to a level deemed acceptable enough by the Audet family to sell.

Cable Companies Slowing Down Upgrades; DOCSIS 3.1 Now ‘Good Enough for Most of Decade’

The standard is ready, but cable operators looking to cut costs and network investments are not.

Although major cable operators will gradually begin buying more advanced DOCSIS 4.0-compatible equipment to power their hybrid fiber-coaxial cable networks, some cable engineers are predicting no big hurry for the next cable broadband upgrade, suggesting the existing DOCSIS 3.1 standard is probably good enough for most of this decade.

A favorable regulatory climate under the Trump Administration has given cable companies a reprieve from pressure from Washington regulators and politicians pushing for more upgrades and competition. Cable operators have successfully slowed investment and upgrade schedules, convinced they are likely not going to face traffic congestion or serious threats from new competitors anytime soon.

DOCSIS 4.0 would double the maximum internet speed available from current cable broadband platforms to 10,000 Mbps download and 5,000 Mbps upload speed. The new standard would also dramatically cut network latency, an important factor for applications like video games. But equipment manufacturers and some cable operators don’t see a big hurry for upgrades on the horizon.

Tom Cloonan, chief technology officer of network solutions at CommScope told an audience at the Light Reading-hosted two-day virtual event: Cable Next-Gen Technologies & Strategies, DOCSIS 3.1 is adequate enough for cable operators to stick with through most of this decade, but “it will eventually run out of gas.”

Jeff Finkelstein, executive director of advanced technologies at Cox Communications, agreed, claiming DOCSIS 3.1’s useful life at Cox is at least five to seven years — up to a decade on certain more advanced cable systems equipped to devote more spectrum for upstream traffic.

Until cable operators decide customers need more broadband capacity and faster speeds, many will stick with DOCSIS 3.1 while they gradually upgrade portions of their network to be DOCSIS 4.0 ready. The key factor that will eventually push most operators to upgrade to DOCSIS 4.0 is internet traffic demand. If providers continue to see exponential traffic growth similar to the early months of the COVID-19 pandemic, upgrades will have to come in the next few years. If internet traffic growth can be slowed down, operators can stall upgrades until after 2025. Slowing upgrades will save operators money and DOCSIS 4.0 is designed to be launched at a relatively low cost, especially if network prerequisites can be gradually put into place.

It is also clear most major cable operators with the exception of Altice USA see at least a decade or more of useful life left in their existing hybrid fiber-copper coaxial cable networks. After that, some may elect to begin a move towards fiber to the home service.

Stop the Cap Requests FCC Time Extension or Postponement of Charter’s Data Cap Petition

August 20, 2020

Ms. Marlene H. Dortch
Office of the Secretary
Federal Communications Commission
445 12th Street SW
Washington, DC 20554

Regarding Docket: WC 16-197

Dear Ms. Dortch,

We are writing to express concern about the FCC’s apparent rush to judgment over Charter’s petition to sunset two important conditions the company agreed to in return for approval of a highly profitable merger deal involving Time Warner Cable and Bright House Networks. The accelerated pace of this proceeding is very odd, considering Charter has claimed in the press it has no plans to implement data caps and cannot act on the Commission’s decision before the spring of 2021.[1]

This docket is full of comments from consumers that are overwhelmingly opposed to Charter being allowed to impose data caps. Despite assertions from some cable companies that data caps are “popular” with consumers, the comments in this docket speak for themselves. Few, if any consumers support data caps and they are not popular and never have been.[2] Consumers do not express support for data caps by choosing providers that impose them. In most cases, they have no other reasonable choice. Mediacom’s comments on data caps do not reflect consumer sentiment anymore than Charter’s comments did, and the fact is its 60 GB allowance tier is an anomaly in the broadband marketplace.[3] We also note Mediacom did not disclose what we suspect is an extremely low percentage of customers finding that plan adequate for their needs. Again, we point the Commission to comments in this docket filed by actual consumers to get an understanding of how much they dislike data caps.

Also appropriate for consideration are the candid conclusions reached by former Time Warner Cable executives admitting that consumers overwhelmingly rejected the company’s “budget” data allowance plans, and to such an extent the company discontinued them several years ago.

Speaking at the Deutsche Bank Media, Internet and Telecom Conference in Palm Beach, Fla., in March 2014, Time Warner Cable Inc. Chairman and CEO Rob Marcus said very few broadband subscribers opted for its internet plan that caps data use at 30 gigabytes per month. In fact, the number of subscribers taking the use-based service tier is running only “in the thousands” — a very tiny slice of the MSO’s roughly 11 million US broadband customers.[4]

Many of the groups that have supported Charter’s petition are also recipients of donations from the cable company and their views must be considered in that context. Many were specifically invited by Charter to participate in this proceeding. At least one, the Niagara Falls Boys and Girls Club, remarkably and publicly repudiated its own initial support for Charter’s petition after we publicly asked why the organization took a stand on an issue that seems far afield from its mission.

As a Buffalo TV newscast noted:

“After a quick whirlwind of events, the Niagara Falls Boys & Girls club went from supporting a measure after receiving a donation from Charter to then distancing themselves entirely.

But if this wasn’t enough of a Nancy Drew novel for you, we have this update:

Charter is apologizing to the Niagara Falls Boys & Girls Club.

[…] The reality of the situation is there’s nothing illegal here. What stands out is that the Niagara Falls Boys & Girls Club has only submitted one FCC comment, as far as WGRZ can determine. The comment came after they received a donation from Charter Communications, and the letter was in support of an initiative that Charter Communications wants regulators to approve.

This situation, and others that WGRZ has also discovered, raises serious questions about the position non-profits are put in after they receive a donation from a large company.”[5]

At the same time, consumers with no financial interest in Charter beyond being customers are continuing to share their views with the Commission to this day. They are overwhelmingly hostile to the idea of Charter being given an early sunset to the very modest deal conditions imposed by the FCC. We believe consumers should have the benefit of a much longer comment window to express their concerns. The current 14-day extension is wholly inadequate.

Additionally, with the presidential election less than 80 days away and the recent decision by the president to withdraw the nomination of Commissioner Michael O’Rielly to serve a second term, we feel this petition should be addressed by the Commission during the next Administration and after his replacement is confirmed and seated, which would still allow for a decision prior to the fifth anniversary of the merger order, the earliest the imposed deal conditions can sunset.

Because the FCC did not invest any time and energy to defend the related court challenge of other Charter deal conditions before the D.C. Circuit, it is clear the FCC has much higher priorities under consideration at the moment. Therefore, it should move to delay further consideration of this matter, accept additional input from interested parties, and assure a decision will be forthcoming early next year, before the fifth anniversary of the merger order. This would not harm Charter and would clearly demonstrate the Commission was not rushing this petition through, which could give the perception the FCC was unfairly biased towards Charter to the detriment of consumer interests.

As the COVID-19 pandemic continues to severely impact the United States, the last thing consumers should face is a higher bill for internet access, either with the imposition of data caps or charging interconnection fees that could force video services to increase pricing. Americans are relying on the internet to stay entertained, informed, work, learn, and shop from home, and manage health care needs through tele-health video conferencing. Charter has told the Commission its network has been more than capable of handling the increased traffic from these activities.

There is no urgency here and no evidence a delay until early 2021 would harm Charter’s interests in any way.

Yours very truly,

Phillip M. Dampier
Founder and President

[1] “Charter Seeks FCC OK to Impose Data Caps and Charge Fees to Video Services” https://arstechnica.com/tech-policy/2020/06/charter-seeks-fcc-ok-to-impose-data-caps-and-charge-fees-to-video-services/

[2] “Reply of Charter Communications” https://ecfsapi.fcc.gov/file/10806999321971/Charter%20Merger%20Conditions%20Sunset%20Petition%20Reply%20(8-6-20).pdf

[3] Mediacom ex-parte communication https://ecfsapi.fcc.gov/file/108172969830849/Mediacom%20August%2017%2C%202020%20ex%20parte.pdf

[4] “TWC Subs Say No to Data Caps” (3/2014) Light Reading: https://www.lightreading.com/services-apps/broadband-services/twc-subs-say-no-to-data-caps/d/d-id/708194

[5] “Charter Regrets Misunderstanding With Niagara Falls Boys and Girls Club.” (WGRZ-TV Buffalo) https://www.wgrz.com/article/news/local/charter-regrets-misunderstanding-with-niagara-falls-boys-girls-club/71-f50b6957-dd26-4560-bb0c-d6d5828c1cd1

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