Technology think tank ITIF–The Information Technology & Innovation Foundation said the United States should lead an international forum of online stakeholders to come up with voluntary content-moderation guidelines, rather than push for new rules and regulations on targeted advertising or algorithms.

That point came in a new ITIF-penned report responding to what it calls a “crisis of legitimacy” in social-media content moderation.

ITIF issued its report as both Democrats and Republicans call for new regulations on edge providers due to a number of issues, including privacy protections, or the lack of them; targeted advertising; allegations from Republicans of anti-conservative bias; allegations from Democrats of insufficient policing of hate speech; allegations from both sides of insufficient protections of children online; and more.

The report, authored by ITIF senior policy analyst Ashley Johnson and ITIF VP and Center for Data Innovation director Daniel Castro, contends social media companies can’t solve all of these issues by themselves. But Congress is deadlocked, they argued, so solutions lie elsewhere than new rules and regulations on algorithms and targeted advertising.

On the issue of weeding out “harmful” state-sponsored content, ITIF says the U.S. should fund research grants and promote better information-sharing.

And although Congress is deadlocked, the report authors said, the legislature should unlock itself long enough to pass laws “establishing transparency requirements for content moderation decisions of social media platforms and requiring platforms to enforce their content moderation policies consistently.”

That essentially tracks with some of the proposed legislation, but without what tech companies see as a heavy-handed regulatory backstop, such as new Federal Trade Commission rules under its Section 5 authority over false and deceptive practices.

“[S]everal of the structural or technical changes that have been proposed for social media would likely make things worse for both content moderation and other issues impacting consumers,” the report said. ▪️

Don't look for the FCC to expand its Universal Service Fund broadband subsidy contribution base to cable broadband providers or edge providers including streamers like Netflix and Amazon, as well as digital advertising companies unless Congress gives it clear authority. But if it does, watch out.

The FCC sought comments on the future of a subsidy that is based on contributions from dwindling traditional telecom (phone) service, and a number of stakeholders argued it already has the authority to expand contributions to broadband access and to streamers and other edge providers users of bandwidth and should do so ASAP.

In a report to Congress on the state of the Universal Service Fund (USF) that drew from those comments, the FCC said Monday (Aug. 15) that if it did decide to include streamers and other edge providers, including digital ad companies, in the contribution base, it could be a lengthy process without some help from the Hill, but the FCC says that authority is not clear.

Also: Edge Provider to FCC: Add ISPs, Not Us, to USF Contribution Base

"The Commission has never analyzed its authority to regulate edge providers, which broadly defined, encompass a wide variety of different entities that provide Internet content, applications, and services," the FCC told Congress. "Before the Commission could require contributions under its permissive authority for any type of edge provider, it would need to conduct a rulemaking proceeding and establish a record that analyzed and applied the definition of 'telecommunications'” to edge providers and demonstrated that the public interest supports requiring contributions."

As for making cable and telecom broadband providers pay into the subsidy, costs that are passed on to subscribers, the report suggested that could be problematic due to its potential for working against the Administration's goal, in creating the subsidy, of making broadband more affordable, but did not rule it out, again, if Congress stepped in to clarify its authority to do so.

"We recommend that in considering changes to the contributions base, the Commission should....take efforts to avoid raising the cost of broadband service and shifting the financial burden from corporations to consumers at a point in time when the federal government is working to address affordability challenges contributing to the digital divide."

In the section on possible Congressional action, the FCC said that its review found there to be "significant ambiguity" over whether it could expand the contribution base, then asked that Congress give it such authority.

"We recommend Congress provide the Commission with the legislative tools needed to make changes to the contributions methodology and base in order to reduce the financial burden on consumers, to provide additional certainty for entities that will be required to make contributions, and to sustain the Fund and its programs over the long term."

Some argue the fund will not be as crucial as in the past given that the Biden Administration has poured tens of billions of infrastructure bill money and COVID-19 relief money in to broadband buildouts, adoption and affordability.

USTelecom was happy to hear the FCC's call for legislative clarity. 

"Today, the vast majority of Internet traffic comes from a handful of dominant edge companies that do not contribute to the fund," said USTelecom president Jonathan Spalter. "We applaud the Commission’s clear recommendation that Congress ensure the FCC has the authority to expand the contributions base to include dominant edge providers. At the same time, we encourage the Commission to move forward within its existing permissive authority to secure the future for universal service.” 

Commissioner Brendan Carr said he was happy the report raised issues with assessing ISPs and the impact on broadband affordability, and was happy that the report did not have similar issues with potentially adding edge providers, of which Carr has been very critical.

He said Congress would probably have to give the FCC added authority to go after edge provider pocketbooks, so he supported asking Congress for the needed tools to do that, adding: "I also want to encourage all stakeholders that are interested in the long-term sustainability of the USF and its invaluable programs to echo this call for Congress to grant the Commission additional authority."

Commissioner Nathan Simington associated himself with Carr's remarks, both adding edge providers tot he contribution base and not doing so for ISPs.

"I agree with Commissioner Carr's sentiments," he said, "particularly his emphasis on relating funding for connectivity spending to the network effects enjoyed by companies that depend on universal connectivity [edge providers, digital ad services companies]—network effects far larger and more scalable than last-mile charges made by home internet service providers."

The FCC rulemaking process could definitely take a long time, but congressional action is also a long game as well. Congress is currently on recess, then will be focusing on getting itself re-elected in the midterms. And given how hard edge providers have pushed back on privacy legislation, including flooding the Washington media with ads saying the bill could kill the internet golden goose, legislation making them pay into broadband subsidies would likely face similar pushback. ■

The time has finally come to require Silicon Valley giants to share an infinitesimal slice of their enormous profits to close the digital divide. On a bipartisan vote, the Senate Commerce Committee recently approved S. 2427, the Funding Affordable Internet with Reliable (FAIR) Contributions Act, which next heads to the Senate floor.

Last summer, U.S. Sens. Roger Wicker (R-Miss.), Shelley Moore Capito (R-W.Va.) and Todd Young (R-Ind.) introduced the legislation, which would direct the Federal Communications Commission to conduct a study into the feasibility of collecting Universal Service Fund (USF) contributions from internet edge providers, such as Google, Facebook and others. 

“These companies have benefited from the connectivity the USF supports but have not yet had to contribute,” Wicker explained.

Despite the fact that the combined annual revenue of technology companies on Forbes's Global 2000 list climbed from about $3.3 trillion to a record $4 trillion over the last year, these wildly wealthy companies are still fighting to keep their coffers closed.

But America needs their help.

Also: Big Tech to FCC: Drop Inquiry Into Universal Service Fund Fees

If the $65 billion for broadband set aside by the Infrastructure Investment and Jobs Act (IIJA) is spent wisely, all Americans can be reached with a high-speed internet connection. The problem is that adoption challenges remain, and an ongoing source of funding is needed to support broadband affordability for rural and low-income Americans, as well as schools, libraries and rural healthcare providers over the long haul. This is the primary purpose of the Universal Service Fund, but its funding is on the fritz. In fact, a recent study by EconONE managing director Hal Singer and consultant Ted Tatos indicates the current USF mechanism is unsustainable and will fail to meet the needs of its target consumer base within the next five years. Meanwhile, the Affordable Connectivity Program (ACP), which was established by the IIJA to help low-income Americans buy broadband, is only funded to the tune of $14.2 billion. To keep it going, we will need either a new appropriation from Congress or USF will have to pick up where ACP leaves off, making contribution reform an even more urgent solution.

Currently, USF is funded by requiring telecommunications companies to fork over a percentage of their interstate end-user revenues, which is known as the program’s “contribution factor.” It’s as old school as it sounds — a “tax” on “long distance” telephone calls. Even your grandmother would say this is outdated.

Given that older Americans and those living in older homes are far more likely to have landline phones, the reality is that the tax disproportionately impacts seniors and Americans with lower incomes. Among householders aged 75 and older, 75% have landlines in their homes, compared to less than 5% for householders under 25. And with fewer dollars being added to their personal bank accounts every month, the fees consume a greater portion of their incomes, as pointed out by a Government Accountability Office report.

What’s more, the USF’s revenue base is ever-shrinking, which can only be offset by the contribution factor ever-increasing. In 2019, just over 31% of U.S. households still had a landline, a steep decline from the more than 90% in 2004, 15 years earlier. In 2016, the fund was stretched to support broadband as well as phone service, so widening the contributions base to include broadband-related tech company revenues is a logical, fair and reasonable modernization. Drawing dollars from across the greater internet ecosystem, rather than from traditional phone service alone, could bring the contribution factor down to a small percentage that edge and internet service providers could tout as a business decision that would expand the ecosystem for the benefit of everyone.

America’s lawmakers aren’t the only ones who recognize the imbalance of Big Tech benefiting from broadband networks without backing them. The European Commission recently proposed the signing of a declaration of principles and rights underpinning digital transformation in the European Union, including “developing adequate frameworks so that all market actors benefiting from the digital transformation assume their social responsibilities and make a fair and proportionate contribution to the costs of public goods, services and infrastructures for the benefit of all Europeans.”

In South Korea, Big Tech and video-streaming companies generating 1% or more of total internet traffic, or those with at least 1 million users, pay a fee to support the provision of network capacity. So, while the Motion Picture Association, which represents streaming content providers like Netflix, Hulu, Disney Plus and others, is telling the FCC that expanding the USF contribution base to include them would “present significant implementation issues that would render such an approach unworkable," other countries have already worked it out.

Also: FCC's Carr: Make Big Tech Pay for USF Subsidies

Another potential solution for saving USF is tapping into huge internet-related tech company revenues through a digital advertising services fee. According to projections from Singer and Tatos, “Even if the current USF funding levels were increased to $17.5 billion annually (generously assuming a 75% participation rate by eligible, low-income households, and a $50 per month subsidy regardless of location), by 2029 the contribution factor on digital advertising would only reach 7.3%” — compared to a contribution factor today that’s greater than 25%.

As FCC commissioner Brendan Carr pointed out a year ago, “Ending Big Tech's free ride on the internet would represent a long-overdue return to the historic compact under which the businesses that benefit from a network pay their fair share for it.”

Fortunately for all Americans, this proposal is finally on track, thanks to the FAIR Contributions Act. Let’s hope a resounding “yes” is soon heard, once again, from both sides of the Senate floor. ▪️

The National Association of Broadcasters said the Federal Communications Commission should start imposing regulatory fees on businesses that benefit indirectly from its activities, particularly internet service providers — regulation of which is taking up a lot of the agency’s resources.

The FCC supports itself entirely from fees levied on its licensees, including broadcasters, cable providers and satellite services. The NAB, whose constituency includes owners of broadcast TV stations, has been telling the FCC — and anyone else within earshot — that it’s time for that to change. 

Congress directed the FCC to collect fees from those who benefit from its services, and the NAB said that should include those who benefit indirectly.

Also: NAB Says Court Decision Means FCC Is Free To Charge Fees to Big Tech

The NAB‘s most recent pitch came in comments to the FCC this week on its 2022 regulatory fees and the agency‘s own inquiry into whether it should, indeed, reach beyond the usual fee-payers to others.

“Broadcasters’ fees are skyrocketing to unsustainable levels because of a fee methodology that both fails to perform any analysis of the benefits provided to industries by 75% of the Commission and is inconsistently applied, and the Commission’s willingness to force broadcasters to subsidize other companies by paying for broadband-related activities that the Commission acknowledges do not provide any benefits to broadcasters,” the NAB said. “Broadcasters should not be penalized because the Commission’s fee methodology has not kept pace with market changes and technological convergence in other industries.”

It is past time for the FCC to add an ISP fee category, and to consider adding one for edge providers such as Google, Netflix and Amazon as well, the NAB said.

The FCC is also considering whether to add Big Tech to those who have to pay into the Universal Service Fund subsidies for broadband buildouts. ■

Powerful computer companies told the Federal Communications Commission it would be a waste of the the agency’s — and stakeholders’ — time and money to continue trying to make them pay a regulatory fee to the FCC.

Editor's note: This story initially said that the filing was on Universal Service Fund fees rather than FCC fees. We regret the error.

Currently, edge providers such as Google, Facebook, Apple and others who benefit from unlicensed spectrum do not pay, as to broadcasters, cable operators and satellite operators, who are all FCC licensees. But the FCC has asked whether that needs to change.

Also: Who Should Pay for Universal Broadband Connectivity?

In a resubmission of previous comments, INCOMPAS, the Computer & Communications Industry Association and the Digital Media Association said that since the time of that first comment submission last year, there is overwhelming opposition to considering adding Big Tech to the fee categories and no justification for imposing new levies on “large technology companies.”

To sum it up, they said, INCOMPAS, CCIA and DiMA believe it is time for the FCC to close this aspect of the proceeding “so as not to waste any additional resources of the Commission or stakeholders.”

Separately, the Consumer Technology Association led a group of associations, including INCOMPAS, in a letter to the FCC this week pointing to the economic harm of imposing regulatory fees on unlicensed spectrum users and also asking the FCC to terminate the proceeding.  ■

A three-judge panel of a federal appeals court has lifted a preliminary injunction against a Texas law tech companies say unconstitutionally prevents online platforms from exercising editorial discretion based on viewpoint.

That is according to the Computer & Communications Industry Association, which said a split panel of the U.S. Court of Appeals for the Fifth Circuit had sided with the state of Texas, which had challenged the injunction imposed by a Texas U.S. District court judge back in December.

CCIA and NetChoice filed the lawsuit challenging the law in May of last year.

Also: Big Tech Fires Latest Legal Volley at Texas Social Media Law

That appeals court decision means the law could go into effect while that underlying lawsuit by computer companies is adjudicated.

"As a result of today’s order, Texas could soon seek to enforce its 'Fairness Doctrine for the Internet' against leading digital services, which invites unwarranted and unnecessary governmental intrusion into Americans’ online experience," the CCIA said.

The law, which passed a Republican-controlled legislature September 9, 2021, “prohibits an interactive computer service from censoring a user, a user’s expression, or a user's ability to receive the expression of another person based on … the viewpoint of the user or another person.” It also requires large social media platforms like Facebook and Twitter to disclose how they manage content, to publish an acceptable use policy that users can find telling them what content is acceptable, to publish quarterly transparency reports, and to have a complaint system in place for violations of its policies.

CCIA said the order lifting the injunction did not go to the merits of the appeal and had no written decision accompanying it.

“This unexplained order contravenes established First Amendment law," said CCIA President Matt Schruers. "No option is off the table. We will do what is necessary to ensure that the free market, not government fiat, decides what speech digital services do and do not disseminate.”

Both Republicans and Democrats have been critical of Big Tech, but often for different reasons. Republicans argue that social media sites have censored protected conservative speech, while Democrats generally support what they see as weeding out disinformation, misinformation, and hate speech. Democrats' issues with Big Tech are more about privacy, algorithmic discrimination, lack of sufficient child protections, and not enough weeding out of dangerous speech. ■

A former tech exec turned senator has officially cautioned edge providers against allowing their platforms to be used for Russian war propaganda, calling out YouTube in particular.

Intelligence Committee Chairman Sen. Mark Warner (D-Va.), who co-founded Nextel, sent letters to Alphabet (Google, YouTube), Meta (Facebook), Reddit, Telegram, TikTok, and Twitter saying they need to make sure their companies are not used by Russia and Russia-linked entries, warning that influence operations are part of Russia's warfare playbook.

He cited what he said had been content on Russian-affiliated YouTube channels RT, Sputnik and Tass monetizing content about the Ukraine conflict, "including, somewhat perversely, an ad by a major U.S. government contractor. Meanwhile, Google’s wider ad network continues to support influence outlets such as Sputnik and Tass, directing advertising dollars from unwitting U.S. brands like Best Buy, Allbirds, and Progressive to entities whose ties to Russian influence activity has been well-documented for over five years."

Warner said social media should not abet Russia's efforts to "promote disinformation narratives that weaken the global response to these illegal acts."

He said while social media can be a valuable information tools and outlets for independent media, it can also be a "vector" for "misinformation and disinformation."

Warner asked the companies to, "at minimum":

• "Establish mechanisms by which Ukrainian public safety entities can disseminate emergency communications to your users in Ukraine; 
• "Furnish additional account monitoring and security resources to Ukrainian government, humanitarian, and public safety institutions to prevent account takeovers; 
• "Surge integrity teams, including those with language expertise in Ukrainian, Russian, Polish, Romanian, and German, to monitor your platform for malign influence activity related to the conflict; 
• "Devote additional resources towards the identification of inauthentic accounts, and the removal or labeling of inauthentic content, associated with Russian influence operations; and 
• "Establish dedicated reporting channels for qualified academic, public interest, and open source intelligence researchers to share credible information about inauthentic activity, disinformation, and other malign efforts utilizing your platforms." ■

The Senate Judiciary Committee has favorably reported the EARN It Act to the full Senate, but with the agreement to work on some issues as it moves toward a floor vote. 

The Eliminating Abusive and Rampant Neglect of Interactive Technologies [EARN IT] Act would remove Section 230 immunity from liability from edge providers who knowingly distribute or promote child sexual abuse materials on their websites. 

The vote came during a committee markup of the bill on Thursday (Feb. 10).

Computer companies have opposed the EARN It Act, while law enforcement and child protection advocates support it. Some human rights groups have expressed issues about encryption and privacy and the bill‘s impact on journalists and others.

The EARN It Act would not mandate an affirmative duty for companies such as Google, Amazon, Netflix or Facebook to police their sites or review material. It would only remove the immunity for not “reasonably inspecting” their material, which means if they are informed of such material and do nothing to keep it off their sites, they would lose civil liability immunity for that particular third-party content.

One issue was the bill's impact on encryption of private communications, but bill co-sponsor Sen. Richard Blumenthal (D-Conn.) said that the bill does not prohibit encryption, but only the misuse of encryption to further illegal activity.

Also: DAs Make Case for EARN It Act

Both Democrats and Republicans signaled that if any Big Tech company tried to use the lack of an affirmative duty as a loophole, those legislators might have to circle back and mandate that the sites review their material.

Sen. Lindsey Graham (R-S.C.), the bill's other principal co-sponsor, said that whether there should be an affirmative duty to police sites is another issue and that when informed of such content he hoped Big Tech would act responsibly. If not, he signaled such a duty would be “in his next bill.”

Blumenthal said that despite the arguments of Big Tech‘s armies of lawyers, the bill was not about encryption, which he called a “gigantic red herring,” or free speech, he said. “Rape is not free speech,” he said. There are companies that are vigorous partners in the effort to fight child sexual abuse, he added, because they know it can be done.

He said the bill was about expanding mandatory reporting, doubling the time that companies are required to preserve evidence of child exploitation, fostering the next generation of technology to fight abuse and holding tech companies accountable when they fail to supervise and prevent the spread of child sexual abuse material.

Among the issues to be worked out before a full Senate vote include whether not having the affirmative obligation in the bill is a loophole that needs fixing now, clarifying the encryption provision, the impact of the law on smaller websites and whether a state definition of knowledge of illegal material should be incorporated into the bill, as is currently the case.

Sen. Mike Lee (R-Utah) pointed out that could mean that in Illinois, for example, whose knowledge standard goes beyond “knew” to “should have known,” tech platforms could be held to that standard.

Blumenthal said he thought incorporating state standards was still better than “straitjacketing” them to a federal standard. ■

The Senate Judiciary Committee has moved its scheduled markup of a tough new online antitrust bill from Thursday (Jan. 13) to Jan. 27.

The bill, the American Innovation and Choice Online Act, was introduced back in October by Sen. Amy Klobuchar (D-Minn.), chair of the Senate Antitrust Subcommittee and a self-described leading antitrust reformer, and Republican Sen. Chuck Grassley (R-Iowa), the ranking member. It‘s one of many proposed bills to rein in Big Tech, and not the only one backed by Klobuchar.

Also: CCIA Study Asserts Edge Regs Could Be $300 Billion Economic Hit

The American Innovation and Choice Online Act would do the following:

CCIA members include Amazon and Google, both of which are clearly in the bill‘s sights. 

“Gerrymandering regulations around a handful of leading businesses will skew competition and leave consumers worse off,” he said, adding: “By hamstringing successful U.S. tech companies without even imposing corresponding obligations on foreign rivals, this shortsighted legislation will put the data and security of U.S. users at risk.”

Consumer Technology Association president Gary Shapiro has said the bill would do irreparable harm to U.S. companies, including by putting them at a disadvantage to China and other nations. “The bill allocates vast new powers to the FTC, allowing the commission to ignore the consumer-welfare standard, while imposing massive fines with minimal due process,” Shapiro said.

The bill allows civil penalties of up to 15% of U.S. revenue for the duration of the violation and authorizes a court to penalize a CEO or corporate officer an amount equal to their compensation for the 12 months preceding or following a complaint. ■

Representatives from Snapchat, TikTok and YouTube have agreed to testify at an Oct. 26 Senate hearing, and they should probably come in flak jackets.

The hearing is the bipartisan handiwork of Senate Subcommittee on Consumer Protection, Product Safety and Data Security chairman Richard Blumenthal (D-Conn.) and ranking member Marsha Blackburn (R-Tenn.), both of whom have been highly critical of edge provider practices.

Also Read: Big Tech-Targeted Senate Bill Introduced

“The bombshell reports about Facebook and Instagram — their toxic impacts on young users and lack of truth or transparency — raise serious concerns about Big Tech’s approach toward kids across the board,” said Blumenthal, who has been saying for a while that he wanted to get representatives from other platforms to testify before the committee.

The Oct. 26 hearing is the fourth in a series on the impact of the edge on children and young people.

“Big tech companies continue to prioritize profit over safety and, in doing so, are harming children online,” Blackburn said, going further than Blumenthal in hammering the upcoming witnesses by name. “TikTok, Snapchat and YouTube all play a leading role in exposing children to harmful content.”

Blumenthal has said he believes Big Tech is having a Big Tobacco moment, an observation that came following the revelations about Facebook's internal research findings that some young people found Instagram contributed to their depression and negative body image.

Also Read: ‘How to Stop Facebook’ Campaign Launched

Facebook, Instagram’s owner, has bought a lot of airtime in Washington for ads arguing for regulations on its content moderation, likely because it sees Washington is serious about regulating the platform. The social-media giant wants to head off the potential elimination of its immunity from civil liability for most third-party content on its sites under Section 230 of the Communications Decency Act.

A trio of Republicans has introduced a bill that would require the FCC to consider levying Universal Service Fund broadband subsidy fees on Big Tech edge providers including video streaming giants Netflix and YouTube.

There have been periodic calls to expand the USF contribution base given that it was set up to subsidize voice service to low income and hard-to-reach areas via fees on consumer's phone bills, while internet service has become the go-to communications technology for voice, video and data.

The Funding Affordable Internet with Reliable (FAIR) Contributions Act was introduced Wednesday (July 21) by Sens. Roger Wicker (R-Miss.), ranking member of the Senate Commerce Committee; Shelley Moore Capito (R-W. Va.); and Todd Young (R-Ind.).

Also Read: Who Should Pay for Universal Broadband Connectivity

The bill would direct the FCC to issue a Notice of Inquiry seeking comment on the feasibility of collecting USF contributions from edge providers, then report its findings to Congress within 180 days.

IT would also require the FCC to consider: 1) where it would get the money from edge providers, i.e. digital ads or user fees; 2) the fairness of the current contribution system; 3) how it might assess contributions from companies that it does not directly regulate; 4) the effects on tribal, low income and elderly consumers; and 5) what Congress would need to do to create the new contribution system.

“More consumers are moving to internet-based services,” said Wicker in a statement. “This raises concerns about the sustainability of fees collected from consumers’ telephone bills, which support broadband deployment in underserved areas. As online platforms continue to dominate the internet landscape, we should consider the feasibility of Big Tech contributing to the USF to ensure rural areas are not left behind as we work to close the digital divide.”

It is just the latest effort by Congress to bring powerful edge providers into Washington's regulatory ambit.

Also Read: Wicker Seeks Detailed USF Accounting

Currently USF money--approximately $10 billion per year--is collected from telecommunications carriers, who pass along the fees to their customers. The fee is calculated according to a percentage of their interstate and international revenues.

Taxing Horseshoes to Build Highways

Republican Commissioner and Big Tech critic Brendan Carr was pleased with the new bill. 

"For too long, Big Tech has been enjoying a free ride on our internet infrastructure," he said in a statement. "The current funding mechanism for the Universal Service Fund—a regressive tax on the monthly bills for traditional telephone service, both wireless and wireline—is unfair and unsustainable. Indeed, it’s like taxing horseshoes to pay for highways."

“Requiring Big Tech to contribute is more than fair. It is consistent with the network compact that has prevailed since the earliest days of America’s communications networks. Historically, the businesses that derived the greatest benefit from a communications network paid the lion’s share of the costs," he said. "I am pleased that the FAIR Contributions Act would call on the FCC to open a proceeding to look at ending the charge on consumers’ monthly telephone bills and shifting a fair amount over to Big Tech.”

If Silicon Valley executives thought it couldn’t get much hotter for them in D.C., they have another think coming.

And Democrats, who once defended edge providers as the virtuous inhabitants of an online garden threatened by internet service providers, were leading the charge.

At the head of the pack was a majority report from the House Antitrust Subcommittee, the product of a year-plus investigation into Apple, Amazon, Facebook and Google.

While the findings were attributed to staff, Democratic legislators were definitely on board with the damning conclusion, as they had telegraphed at a recent hearing. The report concluded that social media giants have leveraged their gatekeeper power to “erode entrepreneurship, degrade Americans’ privacy online, and undermine the vibrancy of the free and diverse press. The result is less innovation, fewer choices for consumers, and a weakened democracy.” Other than that, how was the play, Mrs. Lincoln?

Their recommendations for fixing the problem include “structural separation and line of business restrictions” and presuming any future purchases by those companies to be anticompetitive.

Pushing back on those proposals, the American Association of Advertising Agencies said they would “likely hurt consumers, would not impact the tech sector, and would set a dangerous precedent for weaponizing antitrust law.”

Elsewhere, other House Democrats pressed Amazon for answers after a CNN investigation found that some electronics products from AmazonBasic (Amazon’s private label) had melted, exploded or burst into flames but continued to be sold or disappeared without the company letting surfers know why. Amazon did not comment for this story, or CNN’s investigation, beyond saying safety remained a top priority.

Hammering high-tech appears to warrant similar priority status for its critics.

AT&T said it supports "the growing consensus that online platforms should be more accountable for, and more transparent about, the decisions that fundamentally shape American society today," including requiring them to disclose their management practices just as internet service providers must disclose their network management.

That came in the company's comments to the FCC on a Trump administration effort to regulate social media, which it said was meant to contribute to a bipartisan dialogue on edge providers who "enjoy extraordinary legal immunities designed a quarter-century ago to protect nascent innovators, not trillion-dollar corporations." That’s a reference to immunity from liability under Section 230 of the Communications Decency Act, which platforms such as Google, Facebook and Twitter enjoy over their handling of third-party content.

It is that section that President Donald Trump, via the National Telecommunications & Information Administration, has asked the FCC to “clarify” so social media platforms can be regulated.

RELATED: Trump Tackles the Edge

When creating the immunity in 1996, AT&T said, Congress could not have foreseen courts expanding it to "confer near absolute immunity for online conduct that bears no relation" to the section's objective of reducing liability risks for platforms blocking "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable" content. It said Congress also could not have foreseen that the protection from expensive lawsuits would extend not to financially vulnerable start-ups but to "the largest and most powerful companies in the world."

AT&T said platforms should be commended rather than condemned for their innovation and success, but that success breeds responsibility and should bring accountability. Policymakers should ensure accountability in two ways, the telco said: 1) by transparency about their "algorithmic choices" and 2) "just as AT&T and other ISPs disclose the basics of their network management practices to the public, leading tech platforms should now be required to make disclosures about how they collect and use data, how they rank search results, how they interconnect and interoperate with others, and more generally how their algorithms preference some content, products and services over others." 

While AT&T said it is not asking edge providers to reveal their "secret sauce," it does think that the public should get a gander at how a dominant platform designs algorithms to goose its own vertically integrated services over the competition. 

RELATED: Free State: FCC Has Authority to Clarify Sec. 230

AT&T also said it is OK with modifying Section 230 so that it does not provide immunity when leading platforms, as they routinely do, "amplify some content over other content and shape how it appears," often for financial reasons. In that case they should not play by "radically different" rules from publishers, like TV and radio, who have no such liability immunity.

AT&T did not endorse the Trump proposal for how to reform Section 230, but it did endorse a revisit and a single set of nationally consistent rules.

"It is time for federal policymakers to step back, return to first principles, and revisit whether and when the nation’s largest online platforms should enjoy legal immunities unavailable to similar companies in similar circumstances," the company said. 

President Donald Trump is focused on eliminating what he sees as systemic bias, but it has nothing to do with racism.

Under a Trump executive order, the Federal Communications Commission for the first time would have a defined role in regulating edge providers. It’s a big change from the FCC’s hands-off approach during the previous administration, when the “gatekeeper” tag was put on internet service providers — and not on the companies that use those connections to offer their own services, like Google, Facebook or Twitter, which were basically untouchable from a regulatory perspective.

While there is bipartisan support for finding a way to ensure there is some government oversight of the most transformative technology perhaps in human history — including support from cable broadband providers — the president’s focus on online content he does not like threatens to add a layer of speech regulation that could dull the edge and even compromise its role as a marketplace of ideas.

While the order focuses on social media, law firm Wiley Rein says all the participants in online communication will be impacted by “broad and long-term legal and policy effects.”

For example, the president’s directive to develop model legislation for states to enforce his speech policies could work against efforts, backed by ISPs, to create a uniform federal approach to online privacy and commerce.

Related: Section 230: The Protection Section

Trump, in an executive order issued in May, directed the National Telecommunications & Information Administration to file a petition with the FCC, which it dutifully did late last month, to step into the regulation of web content. The FCC would be empowered to require Facebook and Google to publicly explain how they moderate their content, as well as the warnings they place on user posts like the ones Twitter placed on the president’s tweets, which would be considered content generated by the platform and not subject to the Section 230 immunity from civil liability over third-party content, an immunity the president is targeting.

Trump has long said he was looking for a way to keep social media platforms from censoring conservative speech in general. More recently, he has been critical of what he sees as political censorship of his own posts by Twitter, posts that the White House has said are official presidential statements. So, it is clearly personal.

No less a Silicon Valley maven than Facebook chairman and CEO Mark Zuckerberg has conceded there are legitimate concerns about liberal bias, but he does not think it is systemic and has said that is certainly not the case with his company.

FCC commissioner Jessica Rosenworcel, a Democrat, said Trump’s order attempts to enlist the agency in becoming what she calls the speech police, a business she doesn’t want to be in.

The White House explained the move this way: “In a country that has long valued freedom of expression, it is not acceptable for a limited number of online platforms to hand-pick speech that Americans may access and convey. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.”

Regulations Look Inevitable

Some form of regulation of Big Tech appears inevitable. Last month’s hearing in the House Judiciary Antitrust Subcommittee with the CEOs of Facebook, Amazon, Apple and Alphabet (Google) was pretty much a proverbial case of “the beatings shall commence.” Democratic leaders said the big tech firms were too powerful, that the power had corrupted them and that they needed to be regulated and, in some cases, broken up.

Related: Ordering Up Online Regulation

Even though plenty of Democrats, including at last month’s hearing, have criticized Section 230 — or have even called for its elimination — the president’s linkage of the issue with his attacks on Twitter and other sites had some of those pausing to push back with one hand, even as they shake a big regulatory stick with the other.

Questions about whether or not websites still should enjoy blanket immunity from liability have been asked by everyone from conservative Republicans, who share Trump’s suspicions about the suppression of conservative voices, to the Democratic author of the Communications Decency Act’s Section 230 (see box). Section 230 is the law that says social-media platforms bear no civil liability for most of the speech posted on their sites and gives those platforms the freedom to remove content, or not, as they choose.

Immunity under Section 230 of the 1996 law is what allowed those sites to grow from the garage to the sprawling campus, but also, the law’s critics say, allowed them to avoid the legal consequences of the hate speech, fake news, Russian election meddling and sex trafficking that finds its way onto their sites.

Social media sites argue, and with reason, that if they are liable for the millions or billions of posts they host, or for moderating them according to the perceived preferences of their community, it will be hard to sustain their business model.

But these social-media communities have become so large and powerful that what they allow or don’t allow to be posted on their sites, or how they moderate those posts, can change the national conversation and impact many millions. Many in Washington have been saying that with that power comes responsibility — responsibility that Section 230 has allowed them to dodge, unlike news publishers that are subject to such civil liability.

While the president wants the FCC get involved with social-media content calls, that could be a big ask. As influential telcom law firm Wiley Rein pointed out in a note to clients about the executive order, the FCC recently rejected a petition to investigate broadcast coverage of the president, with the explanation that the regulator is not “a roving arbiter of broadcasters’ editorial judgments.” The executive order essentially asks it to become an arbiter of edge provider content calls.

A Bipartisan ‘Techlash’

There are no easy answers. But Democrats and Republicans have clearly been moving toward regulation, or at least heightened oversight and perhaps changes in the antitrust laws to capture the speed of tech innovation and consolidation, fueled by bipartisan concerns over issues like privacy and third-party marketing of user data. While Republicans criticize social media for allegedly censoring speech, Democrats argue the sites don’t do enough to keep disinformation, including deceptive campaign ads, off their platforms.

One Big Tech critic speaking on background said social media platforms are clearly hoping that the executive order takes some of the pressure off. But he also said the “techlash” has its own momentum, likening it to a big rock rolling down a mountain with “gravity on its side.” Sen. Ron Wyden (D-Ore.), the author of Section 230, said at a hearing last year that the whole point of the section was to have a “shield and a sword,” and the sword hasn’t been used. But following the president’s executive order, Wyden came to the defense of Section 230 and how it has been functioning.

“Efforts to erode Section 230 will only make online content more likely to be false and dangerous,” Wyden said. “Section 230 does not prevent internet companies from moderating offensive or false content. And it does not change the First Amendment of the Constitution.”

Other prominent Democrats have weighed in with questions about Section 230. Presumptive Democratic presidential nominee Joe Biden apparently agrees with Trump that the section should go, telling The New York Times back in January that the section should be revoked, saying “it is propagating falsehoods.”

Sen. Josh Hawley (R-Mo.) has also called for an end to the “sweetheart deal” of Section 230. He had an unusual congressional ally in House Speaker Nancy Pelosi, who tried, unsuccessfully, to exclude Section 230 language from the USMCA trade deal among the United States, Mexico and Canada, calling the section a “gift to big tech.” She was joined in that effort to keep Section 230 from spreading by Reps. Frank Pallone (D-N.J.) and Greg Walden (R-Ore.).

Sens. Lindsey Graham (R-S.C.) and Richard Blumenthal (D-Conn.) are political poles apart. But they teamed up earlier this year on a bill that would amend Section 230 to say that the section's immunity for online platforms from civil liability for third-party content does not extend to child exploitation, meaning Facebook or Twitter could be held liable for posts that illegally exploit children. If that passes, it could open the door to other changes and the prospect of the death of Section 230 by a thousand cuts.

Blumenthal said Section 230 provides a unique, near-absolute immunity from legal consequences for “certain companies and activities.” The bill would remove that exemption from companies that did not earn it. (It is, appropriately, called the EARN IT Act.)

But the president’s call for remaking Section 230 has forced pushback.

Pallone joined with other Democratic legislators to stand up for Big Tech. “Online platforms should enforce their codes of conduct to combat disinformation, even when it is spread by right-wing extremists and the president himself, but the president has made clear he wants the internet to cower in fear,” he said.

And following Trump’s order, Blumenthal tweeted: “Whatever the criticisms I may have of current law, this Executive Order is an authoritarian attack against freedom of expression and accountability. This Executive Order is egregiously excessive, with clearly malevolent intent to suppress free speech. It is a blatant attempt to use the full power of the United States government to force private companies to lie for the president.”

It’s not just Democrats who are pushing back on the president. Sen. Mike Lee (R-Utah), a conservative who agrees there is anti-conservative bias — though he has also argued against siccing the Justice Department on Google and other Big Tech companies — told Fox News Channel the order would be “just terrible precedent long-term.” Lee said social media platforms were not “the government's tool to play with.”

The Committee for Justice, a Republican-backed Washington, D.C., nonprofit group, pointed out that there are legitimate concerns that “content moderation policies on certain social media platforms have a disparate impact on conservative expression and sometimes result in outright anti-conservative bias,” including Twitter’s “singling out” of the president, according to committee president Curt Levey.

But Trump’s approach to those issues had Levey sounding more like Democratic FCC commissioner Rosenworcel following the executive order’s release. “Government regulation of private companies’ content moderation policies is a greater threat than the problem it seeks to address,” Levey said.

Republican FCC member Michael O’Rielly’s public raising of the First Amendment issues with regulating social media may have cost him his renomination, which the president has withdrawn.

Pushback on Both Sides

While the immediate pushback on the president from Democrats provided some hope in Silicon Valley that the regulatory tide might be turning, some of the highest-profile Democrats remained resolute.

The Biden campaign told The Verge his position in support of eliminating Section 230 has not changed, and Pelosi said that the president’s order was a “desperate distraction,” but also continued to hammer the edge, saying: “Social media platforms have sold out the public interest to pad their corporate profits. Their business model is to make money at the expense of the truth.”

And the president wants to know just how much money. He gave federal agencies until June 27 to report on what they are spending on online advertising and marketing, and on which platforms. The Justice Department will now determine which of those are “problematic vehicles for government speech,” meaning government dollars.

Related: FCC As Edge Regulator

But the principal problematic vehicle is the executive order itself, said Jon Epstein, a partner at law firm Hall Estill, who has advised clients on the risks of social media. "The EO is troubling to those who believe that the Section 230 protections are necessary and that use of the platforms should not be censored based on government officials’ political viewpoints.

“During his campaign and since he was elected, President Trump has engaged in a heated conflict with reporters and media platforms who have criticized or questioned him,” Epstein continued. “[W]e are on the verge of the battle that the President appears to have sought.”

Section 230 is the surviving section of the 1996 Communications Decency Act, the rest of which was ruled unconstitutional by the U.S. Supreme Court.

It allows social media sites to host third-party speech without being subject to legal action based on the content that is posted or what they do with it, either taking it down despite complaints from individuals, corporations or governments, or leaving it up despite such complaints.

As the Electronic Frontier Foundation put it, Section 230 “has allowed for YouTube and Vimeo users to upload their own videos, Amazon and Yelp to offer countless user reviews, craigslist to host classified ads, and Facebook and Twitter to offer social networking to hundreds of millions of Internet users.”

Related: Cover Story: Trump Tackles the Edge

In a note to clients, attorneys at Wiley Rein explained the specific legal protection that Section 230 affords online service providers:

“Section 230 protects interactive computer service providers such as social media platforms in two ways. Under Section 230(c)(1), ‘[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.’ This means that interactive computer service providers are free to host third-party content without being liable for the substance of that content.

“Section 230(c)(2) establishes an additional liability shield for users and providers of interactive computer services who moderate their content, immunizing them from suit for ‘any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene … or otherwise objectionable.’

“As the Ninth Circuit has explained, these two subsections provide independent protections for providers: “even those who cannot take advantage of subsection (c)(1), perhaps because they developed, even in part, the content at issue … can take advantage of subsection (c)(2) if they act to restrict access to the content because they consider it obscene or otherwise objectionable.”

As the President mandated back in May, the Commerce Department has petitioned the FCC to clarify the circumstances under which social media platforms can be regulated over their treatment of third-party content given their general legal immunity. 

That filing was at the direction of President Donald Trump's May 28 executive order, an attempt to prevent what the President and other Republicans have called suppression of conservative speech by Silicon Valley. 

"Social media and its growing dominance present troubling questions on how to preserve First Amendment ideals and promote diversity of voices in modern communications technology," said the NTIA petition. "Social media’s power stems in part from the legal immunities granted by the Communications Decency Act of 1996." Adding: "[L]arge online platforms appear to engage in selective censorship that is harming our national discourse."

FCC Commissioner Brendan Carr, who has welcomed the petition and says Big Tech needs regulating, even got a mention in the petition. "Commissioner Brendan Carr has remarked, “there’s no question that [large social media platforms] are engaging in editorial conduct, that these are not neutral platforms.” 

As to the FCC's authority to regulate internet content, which has always been a thorny issue, the petition sees it clearly: "[T]he Communications Act (Act) [in sec. 201(b)] empowers the Commission to 'prescribe such rules and regulations as may be necessary in the public interest to carry out this chapter. Under this authority, the FCC should promulgate rules to resolve ambiguities in Section 230," it says. The fact that Sec. 230 was added after 201(b) is immaterial, says NTIA, adding: "Neither section 230’s text, nor any speck of legislative history, suggests any congressional intent to preclude the Commission’s implementation." 

“Many Americans rely on online platforms to stay informed and connected, sharing their thoughts and ideas on issues important to them, which can oftentimes lead to free and open debate around public policies and upcoming elections,” said Secretary of Commerce Wilbur Ross in a statement. “It has long been the policy of the United States to foster a robust marketplace of ideas on the Internet and the free flow of information around the world. President Trump is committed to protecting the rights of all Americans to express their views and not face unjustified restrictions or selective censorship from a handful of powerful companies.”

Related: Trump Issues Social Media Executive Order 

The order made no secret of the President's goal, which was to get at alleged anticonservative bias online. "When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.... We must seek transparency and accountability from online platforms," the order said. 

Related: Senate to Vet Edge Provider Liability Bill 

Facebook CEO Mark Zuckerberg has told Congress that he understands the concerns about Silicon Valley's liberal bias, but says he does not think it is systemic, and certainly not at his company.

The petition filed by NTIA,  the President's chief telecommunications policy adviser, is directed at Sec. 230 of the Communications Decency Act, which provides websites like Facebook and Google immunity from civil liability for most of the third-party content they host on their sites. 

""Congress intended section 230 to address this difficult liability problem, but nothing in the law’s history, purpose or text allows for the conclusion that internet platforms should avoid all responsibility for their own editing and content-moderating decisions," NTIA says.

Republicans argue that some social media platforms have exploited that immunity to quell speech they disagree with. 

NTIA's petition says the FCC should "use its authorities to clarify ambiguities in section 230 so as to make its interpretation appropriate to the current internet marketplace and provide clearer guidance to courts, platforms, and users." 

"NTIA urges the FCC to promulgate rules addressing the following points: 

1. "Clarify the relationship between subsections (c)(1) and (c)(2), lest they be read and applied in a manner that renders (c)(2) superfluous as some courts appear to be doing. 

2. "Specify that Section 230(c)(1) has no application to any interactive computer service’s decision, agreement, or action to restrict access to or availability of material provided by another information content provider or to bar any information content provider from using an interactive computer service. 

3. "Provide clearer guidance to courts, platforms, and users, on what content falls within (c)(2) immunity, particularly section 230(c)(2)’s “otherwise objectionable” language and its requirement that all removals be done in “good faith.” 

(Perhaps to give the FCC some extra regulatory skin in the game, the petition asks the FCC to clarify the "excessively violent" web content Sec. 230 allows edge providers to remove with impunity as content that "is likely to be deemed violent and for mature audiences according the FCC’s V-chip regulatory regime and TV Parental Guidance," as well as material that "constitutes or intends to advocate domestic terrorism or international terrorism.")

4. "Specify that 'responsible, in whole or in part, for the creation or development of information' in the definition of 'information content provider,' includes editorial decisions that modify or alter content, including but not limited to substantively contributing to, commenting upon, editorializing about, or presenting with a discernible viewpoint content provided by another information content provider." 

5. "Mandate disclosure for internet transparency similar to that required of other internet companies, such as broadband service providers."

Related: Pai Says He Won't Pre-Judge Sec. 230 Petition 

Subparagraph (C)(2)(A) is the part of the act that "provides immunity from civil liabilities for information service providers that remove or restrict content from their services" they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected," as long as they act "in good faith" in this action." 

Related: Trump Threatens to Close Down Social Media

NTIA argues that early court rulings upholding Sec. 230's expansive liability protections are based on "early platforms and outdated technology."  

"The problem of overly expansive interpretations for section 230 is not merely hypothetical," it says, then cites a series of complaints that mirror those by conservatives claiming a liberal Silicon Valley bias. "Tens of thousands of Americans have reported, among other troubling behaviors, online platforms 'flagging' content as inappropriate, even though it does not violate any stated terms of service; making unannounced and unexplained changes to company policies that have the effect of disfavoring certain viewpoints; and deleting content and entire accounts with no warning, no rationale, and no recourse."

Citing Carr again (and again) the petition says the commissioner has observed that "social media such as Twitter 'punis[h] speakers based on whether it approves or disapproves of their politics.' One can hardly imagine a result more contrary to Congress’s intent to preserve on the internet “a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”

And again, Carr is cited for his description of Twitter's moderation policy as “free speech for me, but not for thee.” 

The President's executive order appeared triggered in part by Twitter's flagging of his comments about "when the looting begins, the shooting begins," as violating its violence policy.

Hill and FCC Democrats have warned the FCC to steer clear of the petition. For his part, FCC chairman Ajit Pai has said that the FCC would seriously review any petition by the Commerce Department for action on social media regulation.  

“The Section 230 petition provides an opportunity to bring much-needed clarity to the statutory text," said Carr after the petition was filed. "And it allows us to move forward in a way that will empower speakers to engage in ‘a forum for a true diversity of political discourse,’ as Congress envisioned when it passed Section 230." 

“Section 230 confers a unique set of benefits on social media companies and other ‘providers of interactive computer services.’ It gives them special protections that go beyond the First Amendment rights that protect everyone in this country. Congress passed this provision back in the 1990s to address the limited content moderation practices employed by Internet sites like the then-popular Prodigy and CompuServe messaging boards. In doing so, Congress sought ‘to encourage the development of technologies which maximize user control over what information is received’ and to ‘preserve the vibrant and competitive free market that presently exists,’ as several of Section 230’s provisions state. Empowering users to engage in their own content moderation is thus at the core of Section 230," Carr said.

"The FCC shouldn’t take this bait," said Rosenworcel of the petition's filing. "While social media can be frustrating, turning this agency into the President's speech police is not the answer. If we honor the Constitution, we will reject this petition immediately.”

“The rules NTIA has proposed are ill-advised, and the Commission should dispose of this Petition as quickly as possible. As a threshold matter, NTIA has not made the case that Congress gave the FCC any role here," said Commissioner Geoffrey Starks. "Section 230 is best understood as it has long been understood: as an instruction to courts about when liability should not be imposed.

“The proposed rules themselves are troubling. Among other substantive problems, NTIA seems to have failed to grasp how vast and diverse the ecosystem of interactive computer services is. Every comment section on the Internet would be subject to scrutiny. Imposing intermediary liability on those services—or creating an environment in which those services have an incentive not to moderate content at all—would prove devastating to competition, diversity, and vibrant public spaces online.  

“I continue to believe that these rules reflect the President’s attempt at retaliation and intimidation—at the very time when social media companies’ decisions could impact his own electoral future. This dark cloud over online free speech will cast a lingering shadow on our elections. The FCC should act quickly to end this unfortunate detour and get back to the critical work of closing the digital divide. "

“Even if there were a role for the FCC, adopting these rules now would be a terrible idea."

"Like most petitions for rulemaking filed with the FCC, this one is unlikely to be granted and certainly not in the form submitted," said Andrew Jay Schwartzman, senior counselor, Benton Institute for Broadband & Society. "The FCC has no authority to interpret Section 230, and even if it did, the rule that Trump wants is utterly incompatible with the plain language of the statute. 

"Even though this petition is going nowhere, its mere existence violates the First Amendment. It is a transparent attempt to intimidate social media platforms into advancing Trump’s agenda."  

“The demand that the FCC take on the role of ‘Ministry of Truth’ is designed to pressure social media companies to bias content moderation decisions in the Administration’s political favor," said Computer & Communications Association President Matt Schruers. "While digital services are busy fighting online misinformation and foreign influence during a pandemic and ahead of an election, it is disappointing to see the Administration instead doubling down on an obviously unlawful Executive Order.”

“It’s a shame that the FCC is being put in this position: legally, the FCC doesn’t have to dignify this Petition with a response, but the political pressure to put it out for comment will be overwhelming,” said James E. Dunstan, TechFreedom General Counsel, in a statement. “The Petition is a monumental waste of the FCC’s time. It garbles both statutory interpretation and constitutional law. Both the Executive Order and Petition seek to have the FCC collapse the three clearly distinct immunities in Section 230, and overlay a ‘good faith’ proof requirement that exists in only a narrow part of the statute. Applying a ‘good faith’ standard (whatever that means) to difficult content moderation decisions would eviscerate the critical function of Section 230...."

The debate over Section 230 of the Communications Decency Act has become a hot topic in Washington, D.C.

Section 230 is the provision that allowed Facebook, Twitter and other social media platforms to grow without fear of endless liability lawsuits over their content, whether it’s offensive material they failed to take down or content they concluded was not fit for their platforms and did scrub.

But while policymakers debate the implications for business models and regulatory frameworks, it is a very personal issue for Andy Parker, who would have preferred not to have become part of the debate at all.

Parker’s daughter, Alison, a TV reporter at WDBJ Roanoke, Virginia, was murdered almost five years ago (by a former reporter for the station) during an on-air interview, along with photojournalist colleague Adam Ward. GoPro footage of the incident shot by the killer himself is available on YouTube, often edited to enhance the shock value, Parker told the Federal Trade Commission in a complaint alleging YouTube violates its own terms of service. Then there were the videos that claimed the shooting was a hoax and Andy a paid actor playing her father.

In order to get the videos taken down, Parker said, he must watch each one of them and then report it.

YouTube Efforts Misleading: Parker

Parker said YouTube is deceiving its users by claiming to police the site for violent and disturbing videos. “If consumers knew just how ubiquitous violent content is on YouTube, how very likely they and their children are to encounter that content, or how they the consumer bears the burden of policing the site for this content, they would not use the platform,” he said. The FTC is empowered to take action for false and deceptive conduct.

Then, he said, there is the pain of “knowing others are deriving pleasure and profit” from the death of his daughter and other “moment of death” videos. He pointed to the fact that YouTube takes in $16 billion to $25 billion a year in ad revenue “before, between and within videos.”

Parker said Section 230 might not have to be completely eliminated, though he wouldn’t mind if it was. “But at the very least it needs to be amended.” Legislation can be narrow and focus on graphic images and video of murder, targeted harrassment or hate speech, he said.

If there is still such a thing as bipartisanship, Parker said, it ought to be able coalesce around that.

“Our Community Guidelines are designed to protect the YouTube community, including those affected by tragedies,” a YouTube spokesperson said. “We specifically prohibit videos that aim to shock with violence, or accuse victims of public violent events of being part of a hoax. We rigorously enforce these policies using a combination of machine-learning technology and human review and, over the last few years, we’ve removed thousands of copies of this video for violating our policies. We will continue to stay vigilant and improve our policy enforcement.”

As to its profiting from violent videos, a YouTube source on speaking background said the platform would not allow ads to run in “sensitive events,” even if it is legitimate news coverage, or in video that suggests a tragic event did not happen.

In 2017, YouTube updated its harassment policy and removed flagged videos that target the victims and their families, the YouTube source said, although Parker pointed out that the flagging process means family members must watch the videos and then flag them. That includes content claiming an event didn’t happen.YouTube continues to train machine detection systems to try to get the videos down, the source said.

Also as part of its update of hate speech policies, YouTube has assigned “protected status” to victims of violence and their immediate families.

Parker is trying to get the FTC to help with the videos of his daughter, but he is looking more broadly at the Section 230 liability that prevents YouTube and other social media platforms from being civilly liable for content posted like third parties.

“Filing the FTC complaint is the only legal recourse we have until Sec. 230 is either revoked or amended,” Parker said.

Sentiment for Change Rising

There definitely appears to be a receptive, bipartisan audience for doing something. Republicans want Big Tech to be liable for what they argue is the censorship of conservative speech by liberal Silicon Valley companies, while Democrats are worried about third parties using Facebook to meddle in elections.

For example, former vice president and Democratic resurgent presidential candidate Joe Biden told The New York Times he thought Section 230 should be revoked, saying that “it is propagating falsehoods they know to be false.”

House Speaker Nancy Pelosi tried unsuccessfully to exclude Section 230 language from the just-passed USMCA trade deal among the United States, Mexico and Canada.

Sen. Mark Warner (D-Va.), co-chair of the Senate Intelligence Committee and himself a former tech executive, has said Section 230 may not make sense anymore now that half the country gets its news from Facebook. "Suddenly, that 1990s framework might not be exactly right," he told The Atlantic magazine, citing the “arrogance” of the edge.

Even the provision’s author, Sen. Ron Wyden (D-Ore.), has issues: "I just want to be clear,” he said at a Hill hearing last year, “as the author of Section 230, the days when these ‘pipes’ are considered neutral are over, because the whole point of 230 was to have a shield and a sword, and the sword hasn’t been used."

“I think this will kick-start legislation to move forward,” Parker said.

There has been a lot of talk inside the Beltway about whether tech giants have gotten to near monopoly status by anti-competitively buying up competitors in their infancy before they can trigger red flags with antitrust regulators, then reaping the fruits of never-were competitors’ innovations.

Now the Federal Trade Commission is doing something about getting to the bottom of that concern, though it is facing a challenge from a critic of edge providers trying to recraft the FTC as a digital-focused investigative arm — but one no longer independent from the Trump cabinet.

Sen. Josh Hawley (R-Mo.), arguably the leading critic of tech companies in Congress, says overhauling the FTC and merging it into the Justice Department is the best approach to regulating edge providers.

He also said the government doesn't need to create a new "unaccountable bureaucracy" to oversee Big Tech, as some have suggested Congress should do. FTC chairman Joseph Simons agreed, saying that the FTC, with added resources and authority, is the right agency for the job.

“The FTC isn’t working,” Hawley said in announcing his new campaign. “It wastes time in turf wars with the DOJ, nobody is accountable for decisions, and it lacks the ‘teeth’ to get after Big Tech’s rampant abuses. Congress needs to do something about it.”

The senator would also get the FTC out of the merger review business, leaving that duty to the DOJ (see Below).

Almost everyone, including the head of the FTC, agrees that the agency could use more tools in its tech reg toolkit, including more money and staff. That’s particularly true now that it has the principal oversight of broadband privacy and access.

Bringing FTC to Justice

Hawley wants to help by putting the FTC under Justice and making it accountable to that agency, which would be a big change but would provide more market analysis and enforcement muscle.

Currently, the agency must sue companies to enforce its policies, rather than regulate compliance. Hawley says that means it lacks the "teeth" to go after what he calls tech's "rampant abuses."

Hawley's call for an overhaul came the same day the commission said it would start flexing what muscle it has.

It sent "special order" information requests to five of the biggest tech players — Google, Amazon, Apple, Facebook and Microsoft — seeking information and documents to help it review the "terms, scope, structure, and purpose of transactions that each company consummated between Jan. 1, 2010 and Dec. 31, 2019."

The Trump administration has signaled it would take a retrospective look at some of the deals that may have passed under its antitrust radar as Big Tech got bigger, just to make sure they did not build those collective trillion-dollar market caps via anticompetitive means.

Assistant Attorney General Makan Delrahim, the DOJ’s antitrust chief, has said that big, even to the extent of being a natural monopoly, isn't necessarily bad. But he has conceded the market needs a fresh look.

“One of the FTC's biggest problems is that Congress has cut its funding over the decades, leaving the agency under-resourced to do its job,” Joshua Stager, senior counsel at New America's Open Technology Institute, said. “Senator Hawley's proposal does not acknowledge this reality, nor does he acknowledge that his own institution bears at least some blame for starving the agency of resources. It is difficult to take this proposal seriously when it ignores such a core problem.”

Argued Hawley: “The reality is the FTC is not putting even its current resources to effective use because the FTC is poorly designed.”

THE HAWLEY PLAN
The following is excerpted from Sen. Josh Hawley’s outline of a new FTC under the Justice Department:

Accountability
Restructure the FTC to operate within the DOJ

— The FTC would be headed by a single director (like the FBI), instead of a multi-member commission:

• The director would report to the Associate Attorney General.
• The director would be Senate-confirmed for renewable five-year terms.
• The FTC would gain new market analysis authority to direct its enforcement, assist the Antitrust Division and inform Congress.

— Transfer all authority to review mergers and acquisitions to the Antitrust Division of the DOJ:

• Create more tools for robust enforcement.
• Create authority to enforce rules requiring interoperability, data portability and data minimization.
• Create civil penalties for first-time offenses.
• Give the FTC greater research and reporting mandates.
• Give state attorneys general concurrent enforcement authority.

SOURCE: Office of Sen. Josh Hawley

WASHINGTON — Sounding a bit like Google execs in front of the Senate Commerce Committee almost a decade ago, a top Facebook official told the House Antitrust Subcommittee that it faces “vigorous” competition for its products and services, including fierce competition for revenue and low barriers of entry for new competitors.

That is according to the prepared testimony of Matt Perault, Facebook’s director of public policy.

He also said the company had been a boon to small businesses, saying it had "democratized advertising, helping millions of small and medium-sized businesses along the way."

Perault suggested Facebook had been successful because it had worked hard and taken risks. "America does not punish success,” he said. “It rewards it."

Google was represented at the same hearing by Adam Cohen, director of economic policy, who was making the same arguments in his testimony about being subject to vigorous competition for search, including from Bing, DuckDuckGo, Yahoo and "many more."

Last year, Cohen pointed out, 54% of product searches originated on Amazon, and specialized search services are growing in the areas of flights, hotels and restaurants.

RELATED: Hill Gets Pre-Pushback on Big Tech Antitrust Hearing

Amazon associate general counsel for competition Nate Sutton weighed in, too. He spoke in his testimony of how each of the company’s many businesses “faces intense competition from well-established competitors,” including its online retail business. Sutton said Amazon knows its retail customers have many options, including brick-and-mortar stores that operate their own online businesses and the third-party sellers Amazon hosts on its platform — many of which are small businesses it is helping out.

And for Apple, said chief compliance officer Kyle Andeer: “The competition is fierce. Our customers have an ever-growing number of choices when it comes to products and services. We compete against some of the largest companies in the world, both foreign and domestic."

Their statements were at odds with the general tenor of the House’s inquiry into Big Tech, which is based on the companies' massive size, market cap and dominance in various areas. Legislators on both sides of the aisle have talked about the need to rein in or break up giant edge providers, with Republicans pointing to allegations of conservative bias and Democrats speaking of the need to downsize converged corporate giants in general.

Rep. David Cicciline (D-R.I.), chairman of the Antitrust Subcommittee, gave the companies props for dynamism, immense tech breakthroughs and economic contributions. But he said they had been allowed to grow without sufficient antitrust oversight, leading to an increasingly concentrated and less open internet “growingly hostile to innovation and entrepreneurship.”

The companies’ protestations about fierce competition notwithstanding, Cicciline said Google controls nearly all the search in the country (about 90% of all searches), with Amazon controlling almost half of all online commerce, despite the company's statement that it only captures a small percentage or retail. Cicciline said Amazon’s closest competitor, eBay, controls less than 6% of the market.

Facebook controls more than half of the U.S. social media market, Cicciline said, with about 2.7 billion monthly users. Notwithstanding the growth of Chinese social app TikTok — which Perault noted as one of its fierce competitors — Cicciline said Facebook captures over 80% of global social media revenue.

Apple, the chairman pointed out, is under scrutiny for prices in its App Store and policies that may favor its own services and products.

RELATED: Big Tech Bashed in Senate Hearing On Protecting Kids Online

Cicilline said there was a good argument that the market lends itself to shielding dominant firms and producing a "kill zone" for new startups that might want to challenge them. “There is growing concern that anti-competitive practices and the gatekeeper role of online platforms is now imperiling small business in our communities,” he said, echoing the knock on ISPs inside the Beltway of the past decade.

Ranking member Rep. James Sensenbrenner (R-Ill.) raised red flags about coming down too hard on Big Tech. The antitrust laws don't exist to punish size or success, he said, adding that just because a company is big doesn't necessarily mean it is bad.

He echoed the Big Tech comments that they had actually helped small businesses, not hurt them. “Breaking up big businesses because they are large could wind up hurting small businesses throughout the country,” Sensenbrenner said.

He also said breaking up the companies would not solve all the problems, like privacy, he said.

Sensenbrenner did not dismiss the possibility of anti-competitive conduct, but said he was offering a counterpoint to some of the more radical speculation. He said they should look seriously at wrongdoing, but not break up companies by fiat because big was inherently bad. 

WASHINGTON — Big Tech has a big problem.

Facebook has signaled it may well have to pay up to $5 billion to settle a Federal Trade Commission investigation into its privacy practices following a 2011 consent decree.

And that’s not even its biggest issue to solve.

Facebook is for now the most public object of Washington’s increasingly negative view of Silicon Valley. But the problems with the social-networking platform are essentially the same for all the big so-called edge companies — Facebook, Apple, Google and Twitter — that are getting a taste of the regulatory ire long principally confined to internet-service providers under the Obama administration.

Their enormous scale, compared to predecessors, and market power over information have created enormous, unforeseen and complicated issues, from seemingly unstoppable Russian election meddlers to inopportune breaches to claims of outright censorship.

Driving it all is a massive and heavily guarded, data-driven, targeted-advertising business model that provides for all that “free” content. The price/trade-off all along appears to have been consumer privacy and data security. The companies’ biggest sin, though, is hiding that fact from consumers — and Congress — and not allowing simpler solutions for consumers, such as a comprehensive opt-out policy.

Litany of Problems, Critics

The problems the former garage-startup Silicon Valley darlings face are legion, and attacks are coming from all sides: competitors, the Federal Communications Commission, President Donald Trump, Republicans and Democrats in Congress and even activist groups that were once allied with the edge and against the internet-service providers but that have now expanded their view of “bad actors.”

Democrats and Republicans in Congress are taking a hard look at social media’s liability from third-party postings, driven by issues like online sex trafficking, hate speech, violent speech and allegations of censorship of conservative speakers.

If social-media sites are weeding out content, then they are not neutral platforms. And if they are not neutral platforms, the argument goes, then they should not get the benefit of Section 230 of the Telecommunications Act of 1996, which innoculates them from legal action targeting third-party posts.

And as one side of the political aisle hammers edge providers for allegedly censoring conservative speech, the edge also faces hammering (from both sides) for not doing enough to weed out hateful and violent speech (as defined by whoever is doing the criticizing).

If edge providers are expected to police their sites better for unacceptable content, just what content qualifies as unacceptable?

No one argues that websites shouldn’t take down terrorist threats or streamed video of mass attacks, but what about grayer areas? Facebook CEO Mark Zuckerberg has signaled content that makes the online community feel uncomfortable is subject to being blocked.

And who is making the call? A person, an algorithm, the government? Edge providers are trying to figure that out under the explicit warning from Washington that they need to do it ASAP, including from Republicans who argue social media sites are not getting it right, or are getting “too left,” as it were.

Blackburn Video Was Rallying Point

Sen. Marsha Blackburn (R-Tenn.) testified at a Capitol Hill hearing last year that an October 2017 video launching her ultimately successful Senate campaign — she was chair of the House Communications Subcommittee at the time — was removed from Twitter’s ad platform “due to my pro-life message.” It was restored and Twitter ultimately apologized, saying the removal was a mistake.

But Blackburn’s experience became a rallying point for other Republicans, who have invoked it in recent weeks in their push to regulate the edge.

In a recent speech, Blackburn said that Silicon Valley has been arrogant, with a “toxic undercurrent” to industry practices that “can’t be ignored,” and something she signaled Washington definitely wouldn’t be ignoring.

Democrats and Republicans are both on board with some form of government crackdown on Big Tech, either more vigorous antitrust enforcement by the Federal Trade Commission and the Justice Department, new privacy regulations on edge providers or both, enforced by the FTC with stronger rulemaking and fining authority.

For edge companies not wishing to be the nail to Washington’s hammer, it couldn’t be a worse time for regulators and lawmakers to wake up to the dangers of all that data collection and sharing and tracking. That’s because this new scrutiny coincides with a presidential election campaign, giving a crowded field of Democratic primary candidates a “big issue” to hitch their wagons to.

Sen. Elizabeth Warren (D-Mass.) has been the most vocal on the subject, even adding a plank in her presidential campaign platform about breaking up Big Tech.

Sen. Amy Klobuchar (D-Minn.) a familiar critic of internet-service provider size and power, is also on the record, as is South Bend, Indiana, Mayor Pete Buttigieg. Buttigieg said antitrust law “has begun to hit its limits” with regulating Big Tech, which may need shaking up or even breaking up. He said that law “was not designed to handle some of these tech companies.”

And presidential hopefuls are not the only officials looking to leverage the issue.

Shaking up or breaking up Big Tech has even made allies of Klobuchar and Blackburn. The two lawmakers have pressed the Federal Trade Commission to go public with any investigation it is conducting of Google or other edge providers given “concerns regarding potential privacy, data security and antitrust violations involving online platforms,” the duo said in an April letter to the agency.

The Federal Trade Commission is taking a new look at the edge as it relates to antitrust issues. FTC chairman Joe Simons told Congress last month that the review of how the antitrust laws should apply to high-tech conduct is not a one-off task force, but a new litigation division ready to pursue anti-competitive conduct by the edge, including getting at digital platforms through their impact on privacy.

Simons made it clear that antitrust issues are raised not only by pricing but by reductions in product quality, which could include privacy, he said.

One argument is that edge giants have been allowed to grow by buying smaller companies — acquisitions that didn’t raise antitrust alarms — then use that size as a de facto bar to future competitive startups, the absence of which can’t be measured.

At a Senate Judiciary Committee hearing two weeks ago, witness Brian O’Kelley — founder of AppNexus and the self-described founder of many of the technologies that make programmatic advertising possible — summed up his issue with big tech in general and Google in particular. He said Google has used its bundled services to “unfairly” impede the growth of his startup: “The internet giants have no incentive to address privacy issues without competitive pressure or regulatory oversight.”

Congress needs to “figure out a way to rein in these massive companies” to protect consumers and preserve startup innovation, he said.

O’Kelley also said the focus on price is the loophole that has allowed Google and Facebook to buy hundreds of companies under the antitrust radar.

New Antitrust Scrutiny at Justice

The Brookings Institution just released a report teeing up the “the major political and economic threats” posed by online platforms, arguing that while a number of lawmakers are calling for “modernizing” antitrust to match the digital age, “dominant tech companies continue to largely evade scrutiny.”

The Justice Department is also definitely looking at whether antitrust laws have kept up with the digital age and, if not, what needs to be done about that.

There is a bright spot for Big Tech in Justice antitrust chief Makan Delrahim’s cautionary words that size, even virtual monopoly power, is not in and of itself illegal. Rather, the concern is whether or not that power is used anti-competitively.

Old views of competition are already being upended by new tech, though.

In a decision that could have wider implications for Big Tech, the U.S. Supreme Court recently held that Apple could be sued for the prices developers charge for their apps on its App Store.

Somewhat mirroring the arguments for Section 230 liability protection for social-media sites for third party postings, Apple had argued, citing 40-year-old precedent, that it was not liable for the prices charged by the members (essentially third parties) of its App Store marketplace. The high court saw it otherwise — given that iOS device users do not have the option of another marketplace, and that Apple takes a 30% cut of the app price — and allowed a suit by iPhone users to proceed.

That could open the door to suits against others, including Google and Microsoft.

The Open Markets Institute, which filed an amicus brief in support of the iPhone users, called it an important win in the public’s fight against monopoly in the tech sector.

“Today, more and more of consumers’ purchases go through platforms, where sellers and buyers meet virtually via technology, instead of in brick-and-mortar stores,” Center for Democracy & Technology senior fellow Avery Gardiner said following the decision. “These technologies are evolving fast, and [the court’s] decision shows that antitrust law is — as it should be — flexible enough to address allegations that companies may misuse their market strength in novel ways. … The more we can learn about the actual impact on competition of high tech companies’ policies, the better.”

Even internet activist groups, which allied with Big Tech firms in pushing for the reinstatement of ISP network-neutrality regulations, are in the hunt for Big Tech scalps.

Fight for the Future weighed in with an op-ed in The Guardian last month calling for Zuckerberg’s resignation and providing 25 reasons why that should happen. No. 22: “Special access for tech giants: Facebook gave certain business partners like Amazon and Netflix preferential access to user data, allowing the tech giants to skirt the company’s usual privacy rules in order to grow its user base and attract more advertising revenue.”

That off-with-his-head approach is a far cry from the days when Zuckerberg’s founding of Facebook, and its explosive growth, was being celebrated in the 2010 movie The Social Network.

That Big Tech has become the new go-to target was illustrated on Capitol Hill at a recent hearing.

Rep. Greg Walden (R-Ore.) routinely raised the issue of the virtual regulatory impunity of edge providers during the FCC chairmanship of Democrat Tom Wheeler, who frequently pointed out that the agency had no regulatory authority over social media or search engines.

In defense of mobile broadband providers being investigated for sharing geolocation data with aggregators who turned it over to bounty hunters and stalkers (as Democrats claimed), Walden said most carriers had stopped sharing that data, and aggregators had instead turned to data harvesting apps and engines. Those sources provide information that was even more precise, and they were essentially unregulated.

Heading Off New Regs at the Edge

Seeing the handwriting on the wall, edge providers have signed on to some form of federal privacy legislation and have taken self-regulatory steps to better track where political and other ads are coming from. Getting paid in Russian rubles, as some were, should have already been a tipoff, some skeptical legislators have said.

Edge firms also have launched diversity audits and created content boards to look at what goes up and what must come down on their social media sites. But the massed lobbying and public relations power of the so-called FAANG companies (Facebook, Apple, Amazon, Netflix and Google) may not be enough to derail what has become a bipartisan regulatory freight train.

If they want any insight on how to deal with that, cable broadband providers have had plenty of experience, though don’t look for a lot of sympathy.

In an interview for C-SPAN’s The Communicators series in March, Michael Powell, president of NCTA–The Internet & Television Association, said edge providers’ reversal of fortune since the “halo” days of the Obama administration is the biggest case of policy whiplash he has seen.

During the Obama years, Powell said, edge providers could do no wrong — the administration was fairly teeming with Google executives — walking around the town with a halo over their heads and telling the narrative of how they weren’t evil and were connecting the world.

“Their origin myths were all positive, and I think politicians drank that Kool-Aid pretty aggressively for the last decade or so,” Powell said.

The “shocking” reversal of fortune since the 2016 election may be a bit overdone, Powell said, but it was also overdue for a sector that had been allowed to power up without “particularly thoughtful scrutiny.” Powell, a former Justice antitrust division attorney, said that kind of vigilance is what is overdue, and he sees a day of reckoning coming.

It may already be here.

The Warren Plan

WASHINGTON — President Donald Trump has caught a lot of grief from some Democratic quarters for saying his administration would block the AT&T-Time Warner deal or potentially break up Comcast- NBCUniversal. But Sen. Elizabeth Warren (D-Mass.) has announced she would break up Big Tech. Period.

This is how Warren, a candidate for president, describes the steps she will take:

“Making big, structural, changes to the tech sector to promote more competition — including breaking up Amazon, Facebook and Google.

“Passing legislation that requires large tech platforms to be designated as ‘Platform Utilities’ and broken apart from any participant on that platform.

“Appointing regulators committed to reversing illegal and anti-competitive tech mergers, including:
• “Amazon: Whole Foods, Zappos
• “Facebook: WhatsApp, Instagram
• “Google: Waze, Nest, DoubleClick.”

To read more about Warren’s “break up Big Tech” agenda, go to multichannel.com/June3.

He’s Not Joshing

WASHINGTON — One way to identify an issue ripe for the picking is when a freshman legislator adopts it with the kind of vigor conservative Republican Sen. Josh Hawley of Missouri has in making Silicon Valley reform the issue that has defined his first weeks in Congress.

In a speech to the Hoover Institute, Hawley laid out a dystopian view of new tech. He said the evidence suggests that there is something deeply troubling, even deeply wrong, with the “entire social media economy.” Rather than being a source of strength, it is “a source of peril,” he said.

Citing suspension of an account promoting an anti-abortion film, in a letter to Twitter CEO Jack Dorsey, Hawley also called for a third-party audit of Twitter’s account-suspension policies and, in a speech to the Conservative Political Action Conference (CPAC) in Washington, he said the days of a Section 230 sweetheart deal between the government and Big Tech need to come to an end.

Section 230 of the Communications Decency Act relieves social media platforms of liability for third-party content, saying, in part: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

WASHINGTON — The Department of Justice this week will launch its deep dive into the impact of online advertising on the local broadcast-TV market, an issue that came up in an investigation related to the failed Sinclair Broadcast Group-Tribune Media merger but has widened to a general review of the ad marketplace.

If the DOJ concludes that online is grabbing ad dollars from local stations, it could boost broadcasting’s deregulatory efforts against limits on both national reach and local-market duopolies. Cable operators have been pushing back on that sort of relief, concerned about broadcasters using added clout to boost retransmission-consent fees, particularly if Congress does not step in via the STELAR satellite license-renewal legislation to prevent blackouts or mandate arbitration.

Department of Justice antitrust chief Makan Delrahim signaled the investigation into broadcasters’ competitive market was coming, stemming both from Sinclair-Tribune and the Nexstar Media Group-Tribune merger that came after the first deal tanked.

Public Workshop Coming Up

A two-day workshop (May 2-3) in D.C. will look at online and mobile advertising, including “how each type of advertising may fit into an advertising campaign, how inventory is priced, the economics of advertising, developments in advertising technologies, the effects from changes in consumer behavior and the competitive dynamics of media advertising in general, in light of the rise of digital advertising.”

Delrahim has said the DOJ is contemplating whether to adjust its merger reviews given the argument that edge providers are now, for example, competing for local car dealer ads — a bread-and-butter category for broadcast — and thus should be considered part of the relevant competitive market.

Following its investigation into the broadcast ad market, Justice struck settlements with a number of broadcasters stemming from ad-related information exchanges. That inquiry grew out of the Sinclair-Tribune review.

Delrahim has said that, in some ways, Google is not so different from broadcasters. Stations have long argued Google’s competitive market has widened considerably and that should be taken into account in mergers, as well as in determining if broadcast should continue to be subject to local and national ownership limits. The more competitors in a market, the less Justice needs to worry about the anti-competitive effects of mergers.

Delrahim said that when DOJ does broadcast antitrust analysis it currently looks at spot ad rates, but ultimately the viewer — “the eyeballs” — is part of the product, since the service is free, just as it is with Google. “So, you try to make better [broadcast] programming to attract more users by which you can charge higher advertising rates,” he said. “In some ways, Google isn’t too different from that. You try to pass on a product, but ultimately that consumer isn’t the customer of that product. It is the advertisers who buy on that platform.”

Those are issues on which DOJ will gather string during the two-day workshop. A former ad association lawyer suggested it is about time.

“I cannot remember the last time DOJ had such a public forum — this is a timely and necessary workshop,” Adonis Hoffman, former general counsel for the American Association of Advertising Agencies and currently chairman of Business in the Public Interest, said.

“We are in a competitive environment where convergence has companies from across the telecom, media and technology spectrum crossing traditional boundaries and competing with one another,” Hoffman said. “As DOJ looks into this new video/television market, hopefully they will come up with a definition of the market that reflects the new realities.

“It is impossible to separate the advertising issues from the regulatory concerns, so it is good that DOJ will be looking at that critical component of the media ecosystem,” he said.

NAB Says: Count Web Players

The National Association of Broadcasters has long argued that the government should include web players in broadcasters’ competitive market.

For example, in seeking relief from the eight-voices test for local-market ownership — a broadcast-TV merger, for instance, must leave at least eight independent stations in the relevant market post-merger — the NAB said websites that can geo-target should also be considered a “voice.” It made the same argument for loosening the duopoly rules.

In 2017, following the FCC’s deregulation of some local ownership rules, NAB reiterated the need for taking the web into account as a competitor for ads: “As competition from unregulated outlets continues to grow, policymakers should support the FCC’s modernization of radio and TV ownership rules to reflect the current marketplace. To continue offering free, over-the-air service, broadcasters must be able to compete on a level playing field for audiences, advertising and investment.”

More recently, in calling for the FCC to raise the 39% national audience reach cap, which the FCC is currently mulling, NAB again raised the issue of including online in its competitive marketplace, as did Nexstar chairman and CEO Perry Sook in an April 23 speech to the Media Institute in Washington.

NAB general counsel Rick Kaplan, in a meeting with FCC chairman Ajit Pai (according to FCC documents), said that for TV stations to remain viable, they need to boost their reach to effectively compete for ad revenues with “digital advertising platforms and social media giants that dwarf broadcast TV groups in scale and scope.” Sook seconded that. Justice is seeking comment on the issue through June 15.

MORE ONLINE The DOJ workshop is open to the public. For more information, go to multichannel.com/april29

The Content Creators Coalition has told the Federal Trade Commission that its members need government protection from big edge providers they say are abusing their dominant positions on the Web.

That came in a filing with the FTC, which is launching a broad review of its competition and consumer protection regime. 

It also comes as the agency is newly charged with overseeing network neutrality after the FCC deeded it oversight in the Restoring Internet Freedom Order.

The coalition represents musicians, including multi-Grammy winner Roseanne Cash--and others. Its big beef is what it says are those edge providers' "anti-competitive and unfair practices of dominant digital platforms," particularly failing to protect their content from being pirated and widely circulated online.

"While we appreciate the tremendous achievements of digital platforms in revolutionizing access to content and facilitating interaction among users online, their lack of responsible governance has created an environment in which the creators of digital content are perpetually shortchanged, while the platforms profit handsomely from their works," C3 told the FTC.

It laid out its case for why edge providers are the dominant creative content gatekeepers. 

"[A] small number of seemingly unassailable dominant digital platforms like Google, YouTube, and Facebook have come to decide how we see the world. They choose to prioritize certain search results over others and are under no obligation to promote the most relevant as opposed to the most profitable results. They determine which ads a person sees based on massive data sets that they have culled and analyzed, sometimes without user knowledge or consent. They frame our digital experience, shape our discourse, and influence our preferences systematically in ways that are largely undetectable by users."

The FTC review comes as lawmakers on both side of the aisle are calling for government oversight of edge players in the wake of data breaches, improper sharing of sensitive data with third parties, Russian election meddling using social media, allegations of repression of conservative speech--of particular concern to Republicans--and more.

That climate was clearly not lost on C3: "If we don’t do something now to rein in these companies, after countless scandals and broken promises of change, when will we?," it asked. 

WASHINGTON — Add President Donald Trump’s re-election team to the growing list of critics of major edge providers, a list that includes cable operators and more than a few Democratic legislators.

Trump campaign manager Brad Parscale and the Republican National Committee are “demanding” that major social media platforms promise not to discriminate against conservative outlets online. That word came in a letter to the CEOs of Facebook and Twitter, Mark Zuckerberg and Jack Dorsey, respectively, and Trump supporters were asked to sign as well.

“As the president’s campaign manager, I’ve written a letter demanding that the Silicon Valley social media elites stop their rampant liberal bias and stop trying to censor your voice,” Parscale said in an email from both the Trump campaign and the RNC, saying those “coastal elites” were trying to “silence and attack” Trump supporters. The letter sought information on what Facebook and Twitter were doing to prevent suppression of conservative speech.

Edge providers have been under scrutiny in Washington over a host of issues, including sex trafficking, breaches, insufficient privacy protections, Russian election meddling and a perceived liberal bias — a concern that Zuckerberg has told Congress is understandable.

Related: Reps. Square Off Over Online Censorship

RNC chair Ronna McDaniel told Fox News Channel that she and Parscale wanted to “get out ahead of” the issue of conservative censorship on social media, talk to Facebook and Twitter and ask them for transparency and to ensure everyone has a voice, particularly in advance of the midterm elections.

Parscale referenced the blocking of social media personalities Diamond and Silk, African-American Trump supporters who say Facebook was censoring their content because of their political speech. They testified at an April Hill hearing on perceived political bias. Zuckerberg said content reviewers erred and had reached out to the pair.

Parscale believes conservative voices not getting their message out is a “big problem.” The letter says that while they acknowledged Facebook and Twitter operate “in liberal corporate cultures,” the “rampant political bias” was “inappropriate.”

Parscale and the RNC are also worried about a Facebook voter registration effort. “We ask for transparency over how Facebook determines who sees these advertisements in their news feeds,” they wrote. “This is to make sure this new feature does not become essentially an in-kind contribution to liberal candidates.”

WASHINGTON — Here are just some of the issues raised last week as the capital and the nation focused on how better to protect online users' data in a world of almost universal collection and sharing. 

If social media sites can't figure out how to self-regulate, or are unable to do so, Washington has made clear it will step in.

Related: Specter of D.C. Crackdown on Edge Looms [subscription required]

• Does there need to be a government digital consumer protection agency with powers to regulate privacy?
• How can social media sites in general balance the need to weed out terrorists, hate speech, and threats of violence without straying into censorship of non-threatening speech?
• Do consumers have a fundamental right to control their online data and can that co-exist with the social media business model?
• How will new European Union General Data Protection Regulations (GDPR) going into effect next month dovetail with U.S. policies? (Facebook, for example, has pledged to provide those data control tools and options to its U.S. users.)
• If social media platforms are expected to police their content, as legislators have made clear, who decides what gets blocked, and how is that decision made?

Related: Pai Says He's Unsure Whether Social Media Benefits Outweigh Downside

• Should the edge be more regulated, or internet service providers be less regulated? Or do both need more “regulatory motivation” to protect privacy?
• Should all the members of the virtuous internet circle be mandated to require opt-in consent from users to collect their data, to share their data, to sell it to third parties, or any or all of the above?
• Who owns and controls our online personas, and what control do we have over them?
• How do Facebook and other social media define hate speech and is there a bias against conservative and religious speech given Silicon Valley's liberal bent?
• How can social media sites protect against being weaponized in election meddling, or is a site like Facebook too big (billions of communications per day) to prevent such weaponization?

Related: Murdoch Says Facebook Should Pay for Trusted News

• Will opt-in restrictions on data sharing with marketers threaten the ad-supported model that allows for free online content, and will that need to be a trade-off for securing users' control over their data?
• Has Facebook become a "self-regulated superstructure for political discourse," and is that a good or bad thing?
• Is there tension, as lawmakers saw it, between the business interests of the edge and users’ interests, or between users' desire to share info with various apps and their desire, on the other hand, to "lock down" that info? Zuckerberg suggested it was more the latter.
• Did the Cambridge Analytica incident violate the 2011 Federal Trade Commission privacy settlement? (If so, then Facebook could face hefty fines.)
• Is Facebook a publisher, a media company, a tech company or some amalgam of all of those?
• If Congress concludes that edge providers should be regulated like a utility, does that mean ISPs will be reclassified under Title II of the Communications Act, alongside websites?

WASHINGTON — Facebook chairman and CEO Mark Zuckerberg was shown the Capitol Hill woodshed last week, and edge providers may never be the same.

“U.S. policymakers were so enamored by Silicon Valley over the last decade that they turned a blind eye to their abuses,” Roslyn Layton, visiting scholar at the American Enterprise Institute, said of what has become a bipartisan push for privacy protections aimed at edge providers.

Related: Law Limits Cable’s Use of Customer Information

Edge providers, which include Facebook, Amazon, Netflix and Google, often referred to as FANG, use a customer’s internet service provider to deliver their service.

But whether they are “abuses” or, as Zuckerberg suggested in his testimony, online tools developed for good but hijacked by the bad guys, the eyes of Washington lawmakers are open and looking toward possible regulation or legislation to give online users — that is, most of us — some degree of control over where our personal data is going and what it is being used for.

Privacy on the Edge: Legislators' Questions

Zuckerberg made clear that Facebook does not sell data to advertisers, but it does depend on targeting ads based on user data to bring in the $40 billion in business it did last year.

Expect to hear the phrase “opt-in” a lot in the coming days, as policymakers try to come up with the best way to give users control of information. Ahead of the hearing, Sens. Ed Markey (D-Mass.) and Richard Blumenthal (D-Conn.) introduced the Privacy Bill of Rights bill with opt-in for everyone.

Opting In to Opt-In

ISPs have said they can live with a regime in which customers pro-actively opt in to share personal info, as long as it applied to companies like Facebook and Google, as well as Comcast and Charter Communications.

Zuckerberg said he also agreed in principle, though he frequently used terms like “generally agree,” “the details matter” or something “useful to discuss” to avoid definitive endorsements of any particular legislative or regulatory approach. He did signal that he thinks regulation is inevitable — likely one reason he was talking not about whether there would be regulation, but making sure it was the “right” regulation.

Zuckerberg tried to draw a distinction between ISPs and the edge — he said it is lack of ISP competition versus choice in platforms — and suggested regulation should take that into account. The Facebook CEO said he certainly did not think of his company as having a monopoly. But he was not getting a lot of agreement from the legislators in attendance, most of whom are on Facebook and rely on it to reach constituents.

Facebook and others are now tasked with figuring out how to make terms of service contracts clearer, another issue that drew a lot of attention last week and multiple calls for transparency.

Related:(Law) Schooling Facebook | Facebook Boosts Political Ad Disclosures

The scrutiny of Zuckerberg from both parties in both houses of Congress certainly felt like the final crash of a drumbeat that has been building, fueled by data breaches, fake news, election meddling and third-party monetization of online information.

ISPs and others have said there needs to be a shift in the attitude of Washington toward the garage innovators that have long since morphed into data-collecting behemoths that threaten privacy like never before.

Reckoning, and Rules, Draw Closer

That day of D.C. reckoning for Facebook and other edge providers seems close at hand, the Facebook chairman’s serial apologies notwithstanding. Perhaps the larger question, in the face of European regulators who have moved much more aggressively, is: Can a Congress so stifled by partisan rancor pass any meaningful legislation soon?

Rep. Jan Schakowsky (D-Ill.) cited a long history of mea culpas, which is why she said self-regulation just won’t work. Those included apologies from 2003, 2006, 2007, 2010, 2011, 2017 and 2018. On the subject of the protections that Zuckerberg said Facebook was supplying users at the point of decision, Schakowsky asked, “Who is going to protect us from Facebook?”

Zuckerberg spent almost 10 hours over two hearings on April 11 and 12 apologizing for breaching the trust of Facebook users, saying the company had taken many steps to correct the problems with data sharing and third-party access to data, and outlined some of the changes it has made. But that rang hollow with many legislators.

They pointed to the company’s 20-year, 2011 consent decree with the Federal Trade Commission, in which it promised to give users notice and opt-in control of sharing of their data with third parties.

Zuckerberg said he did not think that access to data by Cambridge Analytica — the data firm controlled by right-wing donor and President Donald Trump supporter Robert Mercer — in violation of Facebook’s policies violated that decree, but he did say it was a mistake not to inform the FTC about the incident. Reports in The New York Times and U.K. newspapers The Observer and The Guardian cited documents which said Cambridge Analytica used data improperly obtained from Facebook to build voter profiles.

The FTC is currently investigating Facebook over that incident, as are U.K. authorities.

Zuckerberg, sounding like an ISP CEO pitching a voluntary network neutrality regime, argued last week for voluntary measures to address the company’s various issues, like mistakes in taking down conservative and political speech that did not violate its community standards, the weaponization of the platform by foreign election-meddlers, better informing viewers of how their data was being used, and more. But he also did not rule out regulation.

Seeking the Right Rules

Zuckerberg said he was not opposed to new privacy regulations, but that they had to be the “right regulation.” He seemed at least open to the possibility of a law requiring user opt-in permission for sharing their data with third parties, but said the details of such legislation were important.

And while Republicans are generally on the side of voluntary industry initiatives, this issue could be an exception.

Republican Sen. John Kennedy of Louisiana put it bluntly: “Mr. Zuckerberg, I come in peace. I don’t want to vote to have to regulate Facebook. But, by God, I will.”

Rep. Greg Walden (R-Ore.) told Fox News Channel that he wasn’t ruling out calling Twitter and Google to Washington for hearings, and sought input from Zuckerberg as to which other tech CEOs should get an invitation to testify in Washington.

Republicans are especially concerned that the left political leanings of many Silicon Valley executives translate to a bias against conservative views, a point that Zuckerberg conceded was valid. That is why some Republicans are not ready to push Facebook and others to take more control of their online content.

Just how Facebook’s new artificial intelligence algorithms decide what hate speech is, and what news to place in user’s News Feeds, is a topic of ongoing discussion, but only one of many raised by Washington’s new interest in drilling down into the edge business model.

The Facebook CEO told Congress that examples of conservative speech being censored were mistakes that had been corrected. He said mistakes involving liberal speech were also made, but that there was no directive from corporate to weed out any speech based on its politics, only on whether it was hateful or threatening. There, too, Facebook could do a better job, Zuckerberg said.

But “we’ll do better” solutions to problems involving billions of interactions among billions of people are unlikely to stem the tide.

Regulation and legislation are now clearly on the table for the Big Four edge providers — Facebook, Google, Twitter and Amazon — as Americans come to the realization of just how much of their data is being harvested and shared online. There was talk last week about hauling Twitter and Google before Congress as well.

ISPs have been arguing that any legislation or regulation of the ’net needs to include the edge, which makes more money off of, and collects far more data, from users. That argument has clearly found an audience.

If the current climate in Washington is any gauge, the death of privacy is a hot-button issue, and fueling the outrage in this partisan city are details that the Facebook/Cambridge Analytica data-mining issue involved selling the information to the Trump presidential campaign.

But it goes beyond privacy to ad dollars, the ones Facebook and others are attracting with all those billions of eyeballs, and the data being mined and monetized by relatively unregulated edge providers while their broadcast and cable competitors for those ads dollars remain regulated.

The buzz inside and outside D.C. last week over Zuckerberg’s appearance certainly made it seem like a flashpoint in the policy battle between ISPs and edge providers, though the focus was on Web users and their data.

Issue in the Spotlight

News networks blocked out coverage, on-air and online, for Zuckerberg’s testimony. The Open Markets Institute even launched a website to live-stream the hearings, and an #AskZuck digital ad campaign to get the online public to suggest questions that they wanted answered, with representatives of Free Press and the ACLU on hand to provide input as well.

“Facebook is a corporate monopoly whose business model is surveillance and user manipulation,” Open Markets Institute executive director Barry Lynn said. “It is a threat to our democracy.”

The group also launched a petition to express the sentiment that the edge not be let off the hook after the hearing lights were turned off “and Facebook’s lobbyists flood in.” The institute’s advisory board includes Tim Wu, who famously coined the term network neutrality.

That “don’t trust but verify” sentiment was echoed by several legislators during the Zuckerberg hearings as well, though Rep. Billy Long (R-Mo.) warned Congress did only two things well, nothing and overreacting, warning Zuckerberg to expect the latter.

Facebook supporters weren’t waiting until after the hearing to stick up for the social-media site. The Information Technology & Innovation Foundation was trying to head off a stampede toward regulating the edge before Zuckerberg even took the stand. The group, whose board members include representatives of Apple, Twitter, Amazon and Google, said Congress should resist the urge to legislate “how tech companies design their services.”

Instead, it said, “Members of Congress and regulators should hold Facebook accountable for its public commitments and past promises, and ensure that the company [Facebook] continues its transformation into a more responsible corporate citizen.”

Congress has now made privacy an issue, and is unlikely to look away soon.

“Facebook failed us,” Sen. Bill Nelson (D-Fla.), ranking member of the Senate Commerce Committee, said bluntly. That’s something Zuckerberg has all but acknowledged, chalking it up to a young, idealistic company whose growth and reach raced ahead of its ability to address data protection. But to Nelson that sounded more like nails on the chalkboard than chalk.

“Not only did they fail to safeguard the personal information of millions of users, they concealed it from us — and this is not the first time the company mishandled user information,” Nelson said. “Only now are they coming clean and informing those who have had their information compromised and telling us they are going to make things right.”

“The startling consumer abuses by Facebook and other tech giants necessitate swift legislative action rather than overdue apologies and hand-wringing,” Sen. Richard Blumenthal (D-Conn.) said of the need for legislation to give users opt-in control.

Still, not everyone was on the “regulate the edge” bandwagon, particularly in the House, where several members in addition to Long warned of overreacting.

Rep. Greg Walden (R-Ore.), chairman of the House Energy & Commerce Committee, who presided over one of the Zuckerberg hearings last week, told an audience at the NAB Show in Las Vegas earlier last week that the CEO was an incredible innovator. He said he was more in favor of cleaning out the regulatory underbrush so that all flowers could bloom in that landscape of permissionless innovation and light-touch regulation.

Hill Democrats, at least, have fought hard against that approach and refused to take ISPs at their pledges to protect internet privacy and openness, pledges that can be enforced by the Federal Trade Commission. Many of them seemed similarly unwilling to take edge providers at their word, particularly given that litany of past transgressions and apologies.

Putting an extra urgency on U.S. policymakers to figure out how to treat online data collection and privacy is the European Union’s upcoming General Data Protection Regulation, which take effect in May.

“These will likely become the global standard unless the U.S. acts quickly,” Layton said.

WASHINGTON — Edge providers are beginning to take more heat in the nation’s capital.

The bigger edge providers — companies that provide online applications, content or services, such as Google, Facebook or Yahoo — are being branded as gatekeepers of information, and getting called out as non-neutral online content arbitrators. That was once the exclusive province of internet service providers such as Comcast, AT&T and others, who have been branded as the snakes in the virtuous circle of content to network to consumer.

The doesn’t mean the pressure is off ISPs, particularly on the issue of Title II reclassification, but the vice is starting to twist more on Silicon Valley poster companies that pretty much got a pass in discussions about controlling the overall access to information.

The turning of that bitter worm was clear as one prominent House Democrat laid into edge providers, and at an Oct. 24 House hearing on political advertising saw newspaper publishers roll up their collective editions and spank Google and Facebook as peddlers of fake news for a buck.

Democrats on the House Energy & Commerce Committee have been talking among themselves about the optics of leaving edge providers out of the speech debate, particularly given the rise of fake news — i.e., the real kind, rather than the accusations of President Donald Trump against mainstream media.

Related: Some Troubled by 'Trump TV'

That came to something of a head, or at least to a signal of changing political fortunes, when Rep. Frank Pallone (D-N.J.) requested a briefing with edge providers that he accused of shaping news content.

“With a goal of ad clicks or driving page views, these companies’ policies are not neutral; they actively shape content on the web,” said Pallone, who sent a letter to Google, Facebook and Twitter seeking a briefing on their policies for “moderating content and advertising” as social media’s role in fake news and Russian election meddling swirled inside the Beltway.

Pallone was also responding to reports of vague, confusing and inconsistently applied content guidelines.

A Hill source said Democrats on the Energy & Commerce Committee are clearly trying to include tech firms in conversations about their role in net neutrality and the First Amendment going forward.

“The influence of the internet over our national dialogue and our lives has skyrocketed over the past decade,” Pallone said. “At the same time, the number of websites handling this traffic has consolidated to a handful of key platforms. The combination of these trends has led to these few companies taking on a quasi-governmental role policing content.”

Page Views vs. Page Turns
Pallone suggested that inconsistent application may be tied to the desire to boost page views and ad clicks, foreshadowing the complaints of the News Media Alliance at a hearing on political advertising last week.

Only a day after Pallone’s letter was made public, the head of the News Media Alliance, which represents almost 2,000 newspapers, pressed the issue in a hearing with House members on political advertising and a bill, the Honest Ads Act, that would require broadcast-live disclosures on online political ads.

Related: NMA Says Google, Facebook Business Models Fuel Fake News

While ISPs have gotten used to being called internet gatekeepers on Capitol Hill, NMA president David Chavern said that Google, Facebook and other edge players are news gatekeepers that have fueled fake news and “harmed the integrity of content and advertising.”

That’s because the edge business model is based on “not exercising responsibility over the integrity of content of the advertising that sustains its foundation,” Chavern told the House Oversight Committee’s Information Technology Subcommittee.

Chavern said that the public “should no longer have to suffer from unreliable information because it is profitable, while producers of content [such as his newspaper members] continue to hold ourselves to a higher standard.”

USTelecom took the offensive in its blog on the July 12 Internet Day of Action, which organizers meant as a protest of the FCC's planned rollback of Title II.

USTelecom president Jonathan Spalter said the real issue in the net-neutrality protest was protecting the bottom lines of "large, powerful internet companies." Among the participants in the protest are Google, Twitter, Facebook, Netflix and Amazon, for example.

"Net neutrality is something we all strongly support, and ISPs are committed to modern rules that protect the universally-embraced principles of no blocking, no throttling and no slow lanes," said Spalter, the last a reference to the no paid prioritization rule. "From Amazon to Twitter to Netflix to, yes, even Pornhub [also an Action Day participant], these online giants want consumers to insist to the FCC that only 100 pages of heavy-handed regulations written in 1934 can 'save net neutrality.' These are the same companies that grew to supremacy in the absence of this heavy-handed framework, yet suddenly now they want consumers to believe it is essential."

Read More: Complete Internet Day of Action Coverage

ISPs have argued that Washington is hyper-focused on them as gatekeepers, while keeping a hands-off approach on edge providers as though they were still struggling garage-innovators, rather than behemoths with staggering valuations and market power.

"When you log on today and see the 'spinning wheel of doom,'" Spalter wrote [the protest includes online graphics simulating those endlessly spinning "load" icons], "keep in mind that some of the biggest and most dominant online companies in the world don’t need you to fight their battles for them, but they are asking anyway."

As with other ISP groups weighing in on Advocacy Day, USTelecom wants Congress to step in. Spalter said the solution to regulatory certainty is "clean, modern net-neutrality rules that safeguard consumers’ online freedoms without sacrificing their equally keen interest in stronger, faster broadband networks — and all the innovation it makes possible."

He said FCC chair Ajit Pai, in proposing to roll back Title II for wired and wireless ISPs and interconnections, eliminating the general conduct standard and rethinking the other rules, "should be commended for seeking that balance in his net-neutrality proceeding."

But Spalter also said Congress should "do right by all consumers to make these protections permanent under the law."

Related: Rep. Walden Advocates for Internet Bill

That is a tall order in a bitterly divided Congress, with some Democrats feeling that coming to the table is not a winning strategy on net neutrality or much else.

WASHINGTON — Internet service providers that have been sparring with congressional Democrats over an opt-in broadband privacy regime now have a Republican to contend with. But the consequences of a new bill backed by House Communications Subcommittee chair Marsha Blackburn (R-Tenn.) would have a bigger impact on edge providers and advertisers.

In trying to prevent the FCC from applying that opt-in to ISPs, one of the bigger arguments providers have made is that those opt-in rules didn’t apply both to them and to edge providers such as Facebook or Google, which have a dominant share of the targeted advertising that relies on such data.

In the Balancing the Rights of Web Surfers Equally and Responsibly [BROWSER] Act, Blackburn has proposed to change that, retaining the FCC’s extension of “sensitive” information that requires opt-in consent for sharing beyond financial and health and children’s data to include web browsing, while moving enforcement of all broadband privacy under the Federal Trade Commission.

Related: Rep. Blackburn Defends Broadband Privacy Bill

ISPs have been quiet on the bill — NCTA-The Internet & Television Association said it was still vetting the measure at press time and would have no comment — but groups representing advertisers and edge providers certainly have not been.

The Association of National Advertisers is no fan of Blackburn’s BROWSER Act, sponsored by the Republican House Communications Subcommittee.

Among other things, the ANA says Blackburn’s bill repeats the “fatal mistake” of overbroad classification of sensitive information (it does not say “of web browsing,” which they feel is key), and what the industry trade group calls a “vague and confusing” opt-in regime that would “bombard consumers with annoying consent notices.”

If FCC chair Ajit Pai succeeds in rolling back classification of ISPs as common carriers under Title II of the Communications Act, the Federal Trade Commission will again have enforcement authority over both edge providers and ISPs. Blackburn’s bill could beat the rollback to the punch, designating the FTC as the sole enforcer of online privacy.

Edge providers don’t want either the FCC or the FTC to start requiring them to get opt-in permission to share and monetize browser histories.

The Internet Association, whose largest members are Google, Amazon and Facebook, said the bill “has the potential to upend the consumer experience online and stifle innovation.”

Blackburn has fired back at her critics. “I thought the Internet Association would be more supportive of protecting consumers,” she told The Hill. Edge providers have, however, made clear their opposition to extending regulations to their neck of the ’net, arguing that ISPs have a unique gatekeeper position.

“I think if you ask the American people if they’re OK with having less control over their online privacy so companies can sell their data, they’d say no,” she said.

Jonathan Taplin, director emeritus of the University of Southern California’s Annenberg Innovation Lab, warns that the government will soon have to decide whether to regulate edge-provider giants like common carriers.

The FCC has already done that with Internet service providers, via Title II reclassification, under former chairman Tom Wheeler and with the blessing of President Barack Obama, though the new administration is set on reversing that.

But in an op ed in The New York Times, Taplin said the power of the edge is something the government will need to reckon with, now or later.

He suggested that the government will likely have to step in given that "Google has an 88 percent market share in search advertising, Facebook (and its subsidiaries Instagram, WhatsApp and Messenger) owns 77 percent of mobile social traffic, and Amazon has a 74 percent share in the e-book market."

Taplin said that at a minimum those Big Three should not be allowed to do any other buying-up of companies like Snapchat or Spotify, and if the government leaves them to their own devices, it may ultimately have to force them to divest as it ultimately forced the breakup of AT&T's nautral monopoly.

"Force Google to sell DoubleClick," Taplin wrote. "Force Facebook to sell WhatsApp and Instagram."

He said other steps the government could take include regulating them like public utilities; requiring them to license out patents for nominal fees, as the government required Bell Labs to do; or removing the safe harbor from the Digital Millennium Copyright Act, which allows Facebook and YouTube to take a "free ride" on content produced by others.

He suggested that might not be a priority for the Trump administration given that Trumpthe president is close with "libertarian" tech moguls like Peter Thiel. The Obama Administration, by contrast, was generally thought to be tight with the folks at Google, and Wheeler consistently held to the position that the FCC could not regulate the edge and did not use the bully pulpit to suggest that its most powerful players were a gatekeeper threat to Internet openness on par with ISPs.

But Taplin sees it differently.

"We are going to have to decide fairly soon whether Google, Facebook and Amazon are the kinds of natural monopolies that need to be regulated, or whether we allow the status quo to continue, pretending that unfettered monoliths don’t inflict damage on our privacy and democracy," he wrote.

Taplin, a USC professor until last year, is the author of Move Fast and Break Things: How Google, Facebook and Amazon Cornered Culture and Undermined Democracy.

FCC chair Ajit Pai and FTC chair Maureen Ohlhausen took to the electronic pages of The Washington Post late Tuesday to defend the rollback of the FCC's broadband privacy regulations, a move Congress enabled last week through a Congressional Review Act resolution and President Donald Trump made official with the stroke of a pen earlier this week.

In a co-bylined op ed, Pai and Ohlhausen said "professional lobbyists" had lit a wildfire of misinformation, which the two agency chairs wanted to quell  by stating "what's really going on."

They said the "Chicken Little" warnings made no sense, but that restoring broadband privacy oversight to the FTC did. That could happen either by removing the FTC exemption from regulating common carriers or by reclassifying ISPs so they are not considered common carriers under Title II or by doing both.

Pai has long argued that Title II reclassification of ISPs under the Open Internet order, which is how the FCC deeded itself broadband privacy oversight, was a mistake in need of correcting.

They said that despite "hyperventillating headlines," ISPS have never planned to sell browsing histories to third parties -- something ISPs were saying this week and have pledged not to do in voluntary privacy principles.

Pai and Ohlhausen also pledged to come up with a new system for protecting consumer privacy.

They took aim at the FCC approach, which required ISPs to get permission to share Web, app and geolocation data with third parties while edge providers -- under the FTC's privacy-by-design regulatory approach -- did not have to get that permission, as well as the argument that disparate treatment was justified due to ISPs' unique gatekeeper status or the lack of competition for service.

"If two online companies have access to the same data about your Internet usage, why should the federal government give one company greater leeway to use it than the other?" they wrote, citing privacy policy expert Peter Swire.

"As Peter Swire, President Bill Clinton’s chief counselor for privacy and President Barack Obama’s special assistant for economic policy, explained in a paper he co-wrote for Georgia Tech’s Institute for Information Security and Privacy, 'ISPs have neither comprehensive nor unique access to information about users’ online activity. Rather, the most commercially valuable information about online users ... is coming from other contexts,' such as social-media interactions and search terms," they said.

That would be the Googles and Facebooks of the world, the edge providers that don't need opt-in permission.

As for lack of competition, they argued that doesn't hold up, either.

"As a result, it shouldn’t come as a surprise that Congress decided to disapprove the FCC’s unbalanced rules," they said.

"The American people deserve a comprehensive framework that will protect their privacy throughout the Internet," they added. "And that’s why we’ll be working together to restore the FTC’s authority to police ISPs’ privacy practices."

On Oct. 27, the Federal Communications Commission adopted a Report and Order purporting to “protect the privacy of customers of broadband and other telecommunications services." The rules require consumers to affirmatively opt-in before Internet-service providers (ISPs) can collect "customer proprietary information," which applies to information that the ISP "acquires in connection with its provision of telecommunications service."

For example, if a consumer who subscribes to Comcast chooses not to opt in, it appears Comcast cannot collect information regarding that consumer's Amazon purchases because the data would be acquired through the Comcast-provided Internet connection. However, Comcast will be able to purchase that consumer's Amazon information either directly from Amazon or perhaps from the consumer's operating system and/or Web browser. In other words, ISPs are allowed to purchase consumer information from edge providers, which are not subject to the FCC regulations, even though the edge providers have greater access to consumer information than ISPs.

FCC commissioner Michael O'Rielly discussed this important issue during his dissent: “[A]ll that the FCC has really done is raise the transaction costs. The FCC, in its typical nanny state fashion, seems to assume that consumers prefer an opt-in regime. But when consumers find out the end result is that they may have to pay more for heightened privacy rules that they never asked for, I doubt they will be grateful that the FCC intervened on their behalf. Indeed, this is a grandiose attempt to enact legacy talking points into rules so that commission leadership can pat itself on the back while consumers receive no actual, practical protections.

“Because the FCC's regulations with the opt-in default are not imposed on edge providers, such as Google, these platforms will continue to collect massive amounts of consumer information," O'Rielly continued. "As FSF scholars stated in their comments, due to encryption technologies, edge providers have a greater access to consumer information than ISPs. In order to provide targeted benefits, such as zero-rated services, to consumers who choose not to opt in, ISPs will have to purchase information from edge providers or other Internet companies.”

As commissioner O'Rielly discussed, because ISPs need consumer information in order to offer targeted benefits, these regulations simply raise the costs for ISPs to engage in online advertising, zero-rated programming or other targeted consumer offerings. Consumers who choose not to opt in will be confused because edge providers will continue to collect their information and sell it to ISPs. And it's likely ISPs will increase the price of broadband service to cover the costs of purchasing consumer data from edge providers.

The FCC order also envisions case-by-case investigations of "pay-for-privacy" practices. ISPs will be less likely to charge different prices to consumers with different privacy preferences. For example, consumers who choose not to opt in but who still want to receive targeted offerings should end up paying more than those who choose to opt in because ISPs need to purchase consumer information on their behalf. However, the FCC's investigation likely will chill any efforts by ISPs to offer differentiated pricing based on consumer privacy preferences. Therefore, if ISPs want to offset the increase in regulatory costs, the FCC's investigation is more likely than not to force providers to raise broadband prices for all consumers, not a subset.

With its new regulations, the FCC claims to "protect consumer choice" and "toughen pay-for-privacy safeguards." But by expanding the definition of "customer proprietary information" to include non-sensitive information, the effect of the FCC order will be to impose higher prices for all broadband consumers without actually creating more choices. Instead of a fraction of consumers paying for privacy, all consumers are harmed by the likely result that the FCC's new regulations will lead to higher broadband prices.

Michael J. Horney is a research associate at the Free State Foundation.

What is the price of privacy for Americans?

That’s the single question Federal Communications Commission chairman Tom Wheeler is mulling as his agency tries to craft new broadband privacy rules that would put more restrictions on cable operators and other Internet-service providers than so-called edge providers — such as search engines and social-media platforms — all of which use personal consumer information to boost their business models.

To advocates in both camps, it is yet another flashpoint in the issue of online privacy and the different treatment given to companies in different industries.

The FCC deeded itself authority over broadband privacy when it reclassified ISPs as common carriers, which exempts them from the Federal Trade Commission oversight that used to be their regulatory governor. Wheeler, joined by the FCC’s other Democrats, proposed new rules requiring customers to opt into sharing their information with third parties.

The issue has been a hotbed of debate not just for consumers, but for the affected companies chafing against regulation. At press time, “Protecting the Privacy of Customers of Broadband and Other Telecommunications Services” had generated more than 276,600 comments on the FCC’s docket; at one point, it racked up 17,753 comments in a single 30-day period. That was more than 10 times as many comments as the second-place docket.

The FCC’s current proposal to come up with bright-line rules on broadband customer privacy is only part of the larger issue of keeping consumer data safe from prying eyes while not kneecapping the targeted ad business model that allows for free online content. Protecting information from foreign and domestic hackers is a separate issue, though one that continues to dominate privacy vs. security discussions in Washington — in that case, national security.

Perhaps the biggest unknown involves the Internet of Things, which includes an endless variety of side doors into a user’s online information. (Quite literally, since it could include WiFi-controlled door locks.) As many as 200 million IoT devices could be deployed by 2020, according to Intel.

At stake for ISPs such as Comcast and Verizon Communications is their ability to profit from targeted marketing to their broadband subscribers versus edge providers ability to do so. Edge providers — firms such as Google, Facebook, Yahoo and others that provide Internet content — are not subject to the same restrictions on monetizing user information.

Wheeler’s proposed rules on broadband privacy — which include new restrictions on which types of information ISPs can share, new reporting requirements and deadlines — could come to a vote by the end of the year.

Complicating the enforcement of privacy rules is the jurisdictional issue of which agency regulates which activities. A simple question has a maddeningly complicated answer.

ISPs, for example, know where their customers are going online — and that information is highly prized by online marketers seeking to target ads. It’s for the FCC to decide how that data is used and what control consumers have over its use.

But the individual websites can also track their visitors, and that information, too, is valuable to third parties and online marketers. That data is under the FTC’s purview, although a recent federal appeals court decision has cast that into doubt.

As the FCC-branded gatekeepers of online information, cable operators and other ISPs are at the nexus of the issue.

Meanwhile, the Wheeler-led FCC says it must keep its hands off of edge providers. “[A]ny rules that apply to [only] broadband providers do not prevent” all other Internet companies from storing and manipulating that private information, said Scott Cleland, who runs NetCompetition, an e-forum backed by broadband companies.

“They only prevent one, the ISP,” Cleland said. “It is the functional equivalent of blocking one little square of a metal screen and imagining that one has plugged the whole screen.”

Public Knowledge has argued that Congress intended that broadband customers have control of how their information is used, period. They say that anonymization of that data, which ISPs say should be treated more lightly than identifiable personal information, would still “convey a windfall to the carrier at the expense of consumer control of the information in a way that Congress did not intend.”

ISPs point out that consumers also benefit through third-party use of their anonymized data since that data is the lynchpin of an ad-supported model of free online content that users have come to expect and, arguably, now view as something of an entitlement.

ISPs have pointed out that in other facets of privacy — such as app privacy and facial-recognition software — the Obama administration has sought to have stakeholders come up with voluntary guidelines rather than have government impose prescriptive regulations.

“The FCC’s proposed rules are seriously out of step with the technology-neutral approach — applied to both ISPs and non-ISPs — that that has guided the administration’s many efforts on privacy and cybersecurity policy, with great success,” Michael Powell, president of the National Cable & Telecommunications Association, told the leaders of the Senate Commerce Committee.

PAY FOR PRIVACY

The FCC’s proposed new broadband privacy rules do not ban what some dub “pay for privacy” — ISPs providing an incentive in the form of lower bills for users in return for customers allowing their information to be used for third-party targeted marketing. Indeed, Wheeler himself suggested to National Public Radio that was a way for consumers to control and monetize the value of that information.

But the chairman has left some wiggle room. The notice of proposed rulemaking asks whether “pay for privacy” is allowable under the Communications Act. It cites the example of AT&T’s GigaPower fiber-to-the-premises service that offers users a $30 price break off a $100 monthly fee for allowing their browsing information to be used to tailor ads.

ISPs have an ally in their fight against prescriptive rules in Jon Leibowitz, the former chairman of the FTC under President Obama from 2009 to 2013. He has been working hard to convince the FCC to take the FTC’s approach to privacy, which means enforcing existing privacy policies rather than creating new rules requiring customers to opt in to third-party use of their info for marketing purposes.

In a letter to the FCC, Leibowitz, co-chair of the 21st Century Privacy Coalition and a partner at Davis Polk & Wardell advocating for telecom and broadband providers, said that applying an opt-in privacy regime for ISPs that does not apply to edge providers — still subject to the FTC’s enforcement policies — would undercut consumer benefits.

Instead, he has said, the FCC should adopt the more flexible privacy-by-design approach adopted by the FTC during his tenure, tailoring protections and consumer choice to the sensitivity of the information and how it is being used, and encouraging increased transparency.

That’s a way to apply privacy regulations in a tech-neutral manner to edge providers and ISPs, Leibowitz has said. It is also at the heart of an alternative to the FCC proposal that has been championed by the NCTA and others.

SIDEBAR: Terror Watch

WASHINGTON — Terrorism has reached into various aspects of American life, online privacy among them.

Last fall, in the wake of the terrorist attacks in Paris and ongoing urban violence, some in Congress asked Federal Communications Commission chairman Tom Wheeler what the agency could do to disrupt social media or other Internet communications used by terrorists to recruit or spread their messages of hate.

Wheeler has said the FCC has a limited role — he has long insisted the agency can regulate Internet-service providers, but not edge providers such as Google, Yahoo or Facebook.

“We do not have jurisdiction over Facebook and other edge providers, and we do not intend to assert jurisdiction over them, and I don’t believe, as legitimate as your concern is, I don’t believe we have the jurisdiction to do the kind of thing that you suggest,” Wheeler told Congress when asked if the government could “shut them down.”

But some privacy groups are concerned that the Department of Homeland Security is trying to step in and start regularly monitoring social-media posts.

The Center for Democracy and Technology, a Washington, D.C.-based nonprofit group, has told DHS to back off a proposal to ask some foreign visitors to the U.S. to volunteer information about their social media participation when applying to visit, which it calls an “avenue for overly-intrusive government surveillance.”

In comments to DHS, the CDT said it was concerned about “unspecified review and [“suspicion-less”] monitoring of their public online activity,” calling it a threat to privacy and speech protections.

While DHS has said the information was voluntary, the center fears that will not be the case with folks being asked by the government to supply information in the process of trying to secure entry.

SIDEBAR: Driven to Detection

WASHINGTON — The Federal Communications Commission’s privacy purview extends to actual superhighways as well as the information superhighway.

As the auto industry begins to deploy collision avoidance and other vehicle-to-vehicle communications using dedicated short-range communications (DRSC) spectrum, consumer and privacy groups — as well as some lawmakers — are pushing the agency to come up with customer-information privacy protections as commercial and noncommercial uses are developed for the Internet of (Vehicular) Things.

The FCC opened an inquiry into the issue after Public Knowledge petitioned it for an emergency stay of the rollout of so-called Vehicle-to-Vehicle (V2V) services. Sens. Ed Markey (D-Mass.) and Richard Blumenthal (D-Conn.) wrote with their concerns, including that the FCC reserve the spectrum for matters of public safety, such as crash avoidance.

The issue is not just that cars can be hacked — which could put lives in jeopardy — but that retailers might sell commercial services using customer broadband information.

V2V services would make use of 5-GHz spectrum, the same swath of bandwidth cable operators use to fuel WiFi hotspots — the industry’s primary mobile broadband play. They’ve been pushing for more of that spectrum.

Public Knowledge says that the cybersecurity and privacy issues behind its effort are independent of the issue of sharing the band with WiFi. Delaying V2V rollout is necessary “whether or not the [FCC] allows operation of unlicensed devices in all or part of the DSRC band on a non-interfering basis.”

With regard to the retail issue, Public Knowledge points out that businesses could collect and analyze where a vehicle goes and how long it stays there — without the driver’s knowledge or consent. It could also serve them targeted ads via dashboard consoles, in-car entertainment systems or digtal billboards on gas pumps.

The House Energy & Commerce Committee has defeated two Democratic amendments to a Federal Trade Commission reform bill that would have given the agency authority to regulate broadband ISP consumer privacy and more authority to regulate edge provider privacy.

That came in a full committee mark-up Thursday (July 14) on HR 5510, the FTC Process and Transparency Reform Act of 2016, which would clarify what conduct the FTC can cite for unfairness under its authority to go after unfair and deceptive practices and how it determines that to be the case. The House Judiciary Committee is also considering the FTC reform bill. 

One amendment would have given the FTC authority to create rules that protect consumer privacy on websites. The Democrats on the committee said that if the Republicans want a level playing field in broadband privacy, rather than preventing the FCC from adopting new rules on broadband privacy, a better answer would be to give the FTC more FCC-like rulemaking authority. Republicans countered that was a slippery slope and that the FTC was an enforcement agency, not a rulemaking agency.

That amendment was defeated by a vote of 27 to 17.

A second amendment would have eliminated the common-carrier exemption that required the FCC to take over broadband privacy oversight when it reclassified ISPs as common carriers. Democrats argued that would be an elegant solution to boosting the FTC's ability to regulate privacy. But Republicans said the FCC would not give up its abusive, mission-creep authority just because the FTC also got oversight.

That amendment was defeated by a voice vote.

The Federal Communications Commission (FCC) is conducting a rulemaking proceeding right now in which the agency explains that it is trying to come up with additional regulations for Internet service providers (ISPs) that will protect consumer privacy online. 

It's a compelling sound byte, but upon closer examination of the FCC's proposal, it appears the agency's focus is on shaping the digital advertising market, not protecting privacy. The stakes are high among the existing, dominant players so it is not surprising that the FCC wants to wade in. But it is surprising that the FCC seems to want to shield the dominant players from additional competition, an odd motivation when you read the continuous stream of FCC releases on any number of issues heralding its laser focus on increasing competition, not minimizing it.

Let's review some basic facts about the online advertising market. The two largest edge companies by market cap generate more than $90 billion in global revenue per year by selling targeted advertising based on what the company knows about its subscribers. Customers' online information – what they do, where they do it and other data – is the currency on which these businesses are built. This is clearly revenue worth defending and protecting.

Comes now the FCC rulemaking, which claimed to be doing what consumers wanted by setting up a regime of regulation just for ISPs and markedly different from what the Federal Trade Commission (FTC) had already established for online companies. Public surveys reflect that consumers are not clamoring for multiple and different regulations to protect them. Sensibly, a vast majority of American consumers say they want a uniform, strong set of protections.

Related:Democratic Senators Say Digital Ad Fraud Rampant

In a recent CIGI-Ipsos Global Survey on Internet Security and Trust, 82% of Americans said they are concerned that their information may be bought or sold. Similarly, in a recent Progressive Policy Institute (PPI) poll, 97% of those surveyed said they considered online privacy and data security to be important to them, and 94% said that all companies collecting data online should follow the same consumer privacy rules. Furthermore, 90% of Americans expressed that all Internet companies should operate under the same set of rules and regulations. No matter how the data is sliced – gender, age, race, location, political affiliation – Americans are saying the same thing: they want uniform protections.

The clear divide between what the FCC says consumers want versus what consumers actually say they want raises an interesting question: Why has the FCC worked so hard to cloak its unique privacy proposal in a shroud of consumer support? At the risk of assigning a less-than-noble motive to a federal agency, it would appear that saying the proposal is about protecting consumers has effectively kept it off the radars of investors in the sector.

Investors across the Internet sector would be alarmed to find out that the FCC was in fact intervening in the digital advertising market to shield the existing dominant players from fresh competition. By constraining just the ISPs' ability to leverage the consumer information they can legally observe and package for resale to advertisers, the FCC is preventing them from directly competing with companies like Google and Facebook for online advertising. To think that FCC action here is anything other than shaping the market is to fall for the theory that American consumers are clamoring for lots of different and conflicting restrictions on what companies can and can't do with their private information.

The only thing that the FCC's proposal will do is distort the digital advertising market and protect the dominant market position of the existing providers – the very anathema of American competition policy. The health of the online advertising market is critical to the future growth and evolution of the commercial Internet.  Today's dominant players will likely be tomorrow's smaller competitors and consumers will be the beneficiaries.  Everyone is clear that the "privacy as a currency" business model is here to stay. Let's expose it to more rather than less competition and let's give Americans what they want – a consistent, comprehensive regime that protects them as well online as anywhere else.

Roger Entner is founder and lead analyst at telecom consulting firm Recon Analytics.

The Taxpayers Protection Alliance (TPA) has joined the parade poking the Federal Communications Commission for what many see as Google-friendliness on various fronts.

The Tom Wheeler-led FCC is hardly the first commission to generate speculation about the influence of the powerful search engine. One media wag, for example, once christened Julius Genachowski “Googlechowski,” suggesting he was a kindred regulatory spirit when it came to imposing network-neutrality regulations on Internet-service providers while not regulating edge providers. Genachowski told then-National Cable & Telecommunications Association president Kyle McSlarrow that the focus was not Google, but “the next Google.”

But with chairman Wheeler insisting edge providers are beyond the FCC’s regulatory reach, and proposing a set-top box regime that could give Google access to multichannel video providers’ set-top data, the chatter about this Google’s rise as a lobbying power inside the Beltway has become something of a drumbeat.

Beating that drum last week in a blog post, with accompanying cartoon, was the TPA, which illustrated a blog by its president, David Williams, with a cartoon (pictured) depicting a particularly telling renovation at FCC headquarters.

Asked about Wheeler’s alleged Google-centricity, a spokesperson for the chairman responded: “Chairman Wheeler’s proposals aim to give consumers access to increased innovation, improved access to critical communications networks and more competition. These policies — from preventing fast lanes on the Internet to opening up wireless airwaves for new mobile technologies — are intended to empower consumers rather than favor any particular company.”

— John Eggerton

NCTA Talks to NAB, Hopes Confabs Can Minimize Conflicts

The National Cable & Telecommunications Association and the National Association of Broadcasters often find themselves on opposites sides of policy arguments.

Next April, their main conventions also are in (partial) conflict. The next NAB Show is April 22-27 in Las Vegas, and NCTA’s next INTX: The Internet & Television Expo is April 26-28 in Washington, D.C.

The NAB Show is far bigger than INTX, with a reported 103,012 attending and 1,874 exhibiting this past April. The NCTA doesn’t report INTX figures but predicted at least 8,000 would attend the May gathering in Boston. A non-NCTA source told The Wire about 6,500 attendees and 170 companies ended up being there. But when INTX is in NCTA’s hometown of D.C., the attendance numbers rise as government figures can attend easily.

NCTA officials recently thanked speakers who helped out at NCTA and said they were working to minimize conflicts resulting from the schedule clash. (INTX booked its D.C. date in 2010.) How so? Mainly by working with the broadcasters’ group on when to book key public-policy speakers, NCTA senior director of communications Joy Sims said.

NAB executive VP of communications Dennis Wharton confirmed the effort at convention comity, saying, “We are working closely with our friends at NCTA to make sure FCC commissioners and other public policy folks can attend both the NAB Show 2017 and INTX.”

If only Congress could be so cooperative.

— Kent Gibbons

‘Versailles’ in NYC: Ovation Sends French Fare to Ad Agencies

To promote the Oct. 1 premiere of costume drama Versailles, Ovation TV is sending a French street-food truck to New York City ad agencies this week. On Monday it’s at MediaCom USA, Mindshare, Maxus and Meta, 498 Seventh Ave.; Tuesday, it’s at OMD at 195 Broadway; Wednesday, Carat at 150 E. 42 St.; Thursday, Mediavest and Starcom at 1675 Broadway; and Friday, UM, Initiative and BPN at 100 W. 33 St., per the network.

Bon appétit!

WASHINGTON — The former chairman of the Federal Trade Commission under President Obama is among those cautioning the FCC about its framework for new broadband-privacy rules.

In comments on the Federal Communications Commission’s framework, former FTC chairman Jonathan Leibowitz signaled he was on the same page as multichannel video programming distributors, which have pushed the FCC to adopt the FTC’s model of enforcing existing privacy policies, rather than flex its rule-making muscles with new regulations that could create an uneven playing field between ISPs and edge providers.

Leibowitz, now a partner at law firm Davis Polk & Wardell who counsels on privacy and congressional advocacy, said his approach was “not to erect stop lights dictating what companies and consumers can and cannot do, but rather to strike the right balance between privacy and innovation.”

He said he found some things to applaud in the proposal, but signaled the FCC had not gotten the balance quite right.

Leibowitz praised FCC chairman Tom Wheeler for seeking rules that were consistent with the FTC’s “privacy-by-design approach.” The FCC’s design, though, “overshoots the mark,” he said.

The regulations proposed by the FCC for broadband providers “go well beyond those imposed on the rest of the Internet economy,” Leibowitz said.

MVPDs are particularly concerned with the proposal to prevent Internet providers from sharing users’ information with third parties unless they get affirmative, opt-in consent. That’s something edge providers such as Google and Facebook are not required to do.

Such regulations would undercut the consumer benefits the FCC is trying to protect, Leibowitz said.

He recommended the FTC approach of focusing on the type of data being collected, providing heightened protection for the most sensitive information.

Leibowitz also argued, as have ISPs, for a technology neutral approach. He said the government should not pick winners and losers and that browsers, social-media platforms and operating systems have access to “all or nearly all” of a consumer’s online activity.

The FCC does not have authority over edge service providers, Wheeler has contended, though ISPs counter that the FCC has not been otherwise reluctant to use its Section 706 authority to advance communications.