Attorney General Merrick Garland told news media execs in a meeting Tuesday (Sept. 13) that his department was committed to protecting a free and independent press, including ensuring that journalists are not compelled to reveal their sources or information as part of law enforcement investigations.

In July 2021, Garland announced a new policy to restrict compulsory processes to get information collected in the "scope of newsgathering activities." Those protections are necessary in the absence of a federal shield law and include a prohibition on subpoenas, warrants, certain court orders, and "civil investigative demands."

Also: Journalists Press for Shield Law

Garland told the news executives, which included execs from CBS, NBC, CNN and NPR, that the act of codifying that July 2021 policy shift, which was announced in a memo, would be ready and posted online in the next three months.

The prohibition does not apply if a journalist is him or herself being investigated for criminal conduct, such as insider trading, or to a journalist who used criminal methods -- breaking and entering, for example, to obtain information. But the prohibition does apply if a journalist has obtained and published government information, including classified information, in the course of their reporting.

There is also the traditional carveout -- typical for state shield laws -- for subpoenas or warrants or other legal processes employed to prevent imminent risk of death or serious harm to people or critical infrastructure.

Justice also supported a federal shield law as part of that July 2021 rethink, but none has yet to make it through the Congress despite multiple attempts over many years. 

Jessica Rosenworcel has tapped a policy veteran, Carmen Scurato, to be her legal advisor for consumer and public safety issues, and shuffled some of the responsibilities of her current legal advisors.

Most recently, Scurato had been association legal director and senior counsel for telecommunications, privacy and technology, for Free Press, which has long advocated for the net neutrality rules, media competition, and broadband subsidy spending that are also priorities for Rosenworcel.

Scurato's resume also includes VP of policy and general counsel for the National Hispanic Media Coalition, the FCC's Consumer Advisory Committee and work with the Department of Justice.

If nominee-in-waiting Gigi Sohn were to make it on the commission, Scurato would be a familiar face. They shared a dais in March 2019 when both testified before Congress about the anticompetitive effects of a Sprint-T-Mobile merger, even sitting side by side and Sohn shaking her head in agreement at Scurato's testimony about the deal's harms.

In other legal advisor moves, David Strickland, who has been assistant bureau chief in the Enforcement Bureau, will serve as legal advisor, media, while Ethan Lucarelli will be legal advisor for wireless and international and Ramesh Nagarajan will be legal advisor for wireline and enforcement. ■

Free Press, Common Cause and a bunch of other progressive groups and civil rights advocates have called on the biggest social media companies to combat disinformation in the run-up to the midterm elections, the first national election since the January 6 Capitol insurrection, saying if they don't, they are "the dominant threat" to the democratic process.

That came in the form of letters to the CEOs of Meta, Twitter, YouTube, Snapchat, Instagram, TikTok, and Alphabet from over 100 groups.

Also: House Dems Grill Facebook, Google, Twitter

They pointed to disinformation hangover from the 2016 presidential election, like the stat that a recent poll found that over 40% of Americans said they didn't believe President Biden was the legitimate winner of the election, or what has become known as "the Big Lie."

Among the steps they want Big Tech to take are preventing disinformation targeting non-English-speaking communities, consistently apply "civic integrity" policies to all their live content, prioritize fact checking, including of political ads and posts from public officials, and provide watchdogs and outside researchers real time access to data.

Also: Big Tech Defends Twitter Trump Ban

"Election disinformation targets voters year-round," said Nora Benavidez, Free Press senior counsel and director of digital justice and civil rights, in a statement. "This is a systemic effort to discredit and disenfranchise certain voters—and especially those in communities of color—that has been made worse by platforms and their inability to protect their users from bad actors. These social media companies must do better in the run-up to November's midterms, starting with fixing their algorithms, protecting people equally, and increasing their transparency."

The groups concede that social media can be an important tool in promoting democracy, but only when there is responsible oversight and protections. Without those, they warn, their platforms will "become known as the dominant threat to a thriving democratic process." ■

Free Press Action Fund has released an online guide to, and assessment of, the tech and media policies of the presidential candidates and Sens. Bernie Sanders and Elizabeth Warren are the standouts. 

The guide looks at the candidate's positions on six main areas, net neutrality, affordability, media ownership and mergers, surveillance and privacy, reliable networks, and journalism, and weighs them against Free Press' policy platforms in those areas. 

The candidates are confined to those polling at least 3% in recent national polls. 

"Senators Bernie Sanders and Elizabeth Warren stand out for their detailed and innovative proposals to expand broadband access, make internet access affordable and confront corporate power," says Free Press Action co-CEO Craig Aaron. "Sanders has also offered the most detailed ideas about addressing the crisis in journalism. Senator Amy Klobuchar, a member of the Senate Commerce Committee, also receives high marks in most categories."

Free Press said former Vice President and current Democratic presidential candidate Joe Biden has it all wrong when it comes to what should be online social media sites' copyright liability.

Biden said in an interview with the New York Times Friday (Jan. 17) that Sec. 230 of the Communications Decency Act should be revoked. “It should be revoked because [Facebook] is not merely an internet company,” Biden told the paper according to Free Press. “It is propagating falsehoods they know to be false...” The section holds web sites harmless for third party content posted on their sites and allows them to moderate content, including taking it down if it violates the law or their content policies. It was meant to spur the growth of the web as a minimally policed neutral public square.

Free Press Action senior policy counsel Gaurav Laroia said the Vice President is right to be concerned about the power of Big Tech, including surveillance and tracking systems that violate privacy. "But he has it wrong in almost every way when it comes to his criticism of Section 230," Laroia said. “Repealing Section 230 as Biden recommends would return us to the world of the early and mid ’90s, when the law gave internet companies a choice — either allow nearly all speech and posts, including hate speech and falsehoods, with few rules and nearly no moderation, or assume editorial and legal responsibility for every single post or utterance on their sites." Tech platforms have said the latter is an existential threat to their business models.

Related: Tech's Sec. 230 Sweetheart Deal Must End

But an increasing number of Democrats--Free Press's traditional allies on internet issues as well as Republicans--are questioning whether online giants should retain such a copyright carveout, including the author of Sec. 230, Colorado Sen. Ron Wyden.

House Speaker Nancy Pelosi (D-Calif.), for example, tried unsuccessfully to exclude Sec. 230 language from the just-passed USMCA trade deal given those concerns.

The U.S. Court of Appeals for the D.C. Circuit has declined to overturn the FCC's restoration of the UHF discount on the grounds that the parties challenging it--Free Press, Prometheus Radio--did not have standing to bring the challenge.

That could be a big boost to broadcast M&A, though it might not be the big boost for the Sinclair-Tribune deal given the FCC's other problems with it.

The UHF discount means that only half of a UHF TV station's audience counts towards the 39% national ownership cap. The discount allowed Sinclair to bid for Tribune stations that otherwise would have pushed it to almost double that 39% cap.

“I’m pleased with the court’s decision to reject this challenge to the reinstatement of the UHF discount pending the completion of our comprehensive review of the national ownership cap," said FCC chair Ajit Pai.

During oral argument last April, the judges clearly had concerns about not having statements from individual members of the associations establishing particular harms related to the Sinclair-Tribune deal, which the petitioners used as an example of the harms of the discount. The court wanted the petitioners to have identified at least one Free Press member or Prometheus member in a Sinclair market that would have been affected by the potential merger.

Related: Dems Tell Pai to Wait for UHF Court Decision

The three-judge panel of the court said the argument did not even warrant a published opinion, adding that it did not have to reach the merits of the decision because of that lack of standing.

Those merits were whether it was within the FCC's discretion to reinstate the UHF discount pending “a broader review of the [national ownership] cap” itself after the FCC, under previous chair Tom Wheeler, had concluded it had erred in eliminating the UHF discount before that review.

Since there is no published opinion, it is unclear whether the petitioners could have won on the merits, though two of the three judges appeared inclined to agree with them. Most observers of that oral argument had speculated that, if the standing issue did not derail the challenge, it had a good chance of succeeding and the discount repealed and remanded back to the FCC.

But in a two-page document dismissing the petition to overturn the FCC decision, the three-judge panel said: "Membership organizations may assert standing on behalf of their members, but in order to do so they must show that at least one member “would otherwise have standing to sue in [his or her] own right.”

The court said Prometheus and Free Press did not do that, and it did not accept those showings in a supplement filed after oral argument.

Related: Free Press to Court: Sinclair is Exhibit A on UHF Discount Harms

Now that the court has ruled, Pai is expected to proceed with an item that combines the discount with re-thinking the 39% national audience reach cap to which the discount is tied, perhaps by raising it to 50%, as some broadcasters have asked for, with a review of that move down the line in case it needs some more raising.

Free Press and Prometheus can appeal the three-judge decision to the full court.

Free Press attorney Andrew Schwartzman had no comment on next steps, saying he was still processing the decision and that it was too early to make that call.

"This should remove the cloud hanging over broadcasters, preventing them from further growth. The next, and most important, step is for the Commission to eliminate the national cap altogether," said Adonis Hoffman, former top FCC staffer and currently head of Business in the Public Interest. "Taken together, these actions will give broadcasters the regulatory foundation yo compete in a rapidly changing media market against the likes of FAANG [Facebook, Amazon, Apple, Netflix and Google]."

Equity Research analyst Marci Ryvicker called it a "nice and unexpected positive for the broadcast space."

“This decision is deeply disappointing," said former FCC Chairman and Common Cause Special Advisor Mike Copps. "Rather than decide the merits, the court throws out a major case on a technicality over “standing” that the court itself more than hinted petitioners could easily overcome. On substance, the FCC presented a ludicrous case during oral arguments. There is no defense for maintaining the UHF discount – a technologically obsolete loophole that only allows broadcasters to buy stations beyond ownership limits. It’s more than regrettable that an awful FCC decision that paves the way for more media consolidation is allowed to stand."

“NAB is pleased the court rejected the challenge to the FCC’s decision reinstating the UHF discount," said National Association of Broadcasters SVP Dennis Wharton. "The Wheeler FCC’s decision eliminating the UHF discount without consideration of the national TV ownership cap was inappropriate and ignored the market power of massively deregulated pay TV providers. FCC Chairman Pai deserves enormous credit for righting this wrong, and for providing an opportunity for local broadcasters to better serve our tens of millions of viewers.”

FCC chair Ajit Pai has told Fox & Friends that net-neutrality protesters have "crossed a line" with hateful signs that target his children.

Fox News Channel reported Monday (Nov. 27) that demonstrators had been gathering outside Pai's home after last week's release of the order to reclassify ISPs as information services not subject to mandatory access regulations and to eliminate most of the bright-line network-neutrality rules.

Signs posted on the street outside the FCC chair's home included some naming his children and asking how his kids could look him in the eye as he was "murdering Democracy in cold blood," according to a tweet by one of Pai's neighbors that was cited in the Fox & Friends story.

I have a friend that lives near @AjitPaiFCC. Net neutrality "activists" posted these signs, featuring his children's names, outside his house. Pizzas also reportedly sent to his house every half-hour last night. pic.twitter.com/jWI4gV6Hvc

— Brendan Bordelon (@BrendanBordelon) November 25, 2017

“It certainly crosses a line with me,” Pai said on the show. “Families … should remain out of it, and [protesters should] stop harassing us at our homes. ... It was a little nerve-racking, especially for my wife, who’s not involved in this space.”

Former FCC chair Tom Wheeler also had protesters outside his home before he switched to a Title II approach to net-neutrality rules -- the approach Pai is now moving to roll back -- but the demonstrators were not threatening, and Wheeler even spoke with them and posed for a photo at one point.

Protesters had taken to Pai's street back in May, as well, after the FCC voted to propose the Title II rollback, but the tone of the newest protest had an uglier edge.

Pai chief of staff Matthew Berry also condemned -- by way of retweets -- some of the hateful and even racist messages aimed at Pai and his family by opponents of his proposal, including one that said he should get cancer and his family should be executed so they could not pass his genes on.

Former FCC chair Michael Copps, now a special advisor to Common Cause, is one of the strongest critics of Pai's proposal, but he told B&C that, as he tweeted over the Thanksgiving Day weekend, there is not a place for such hateful speech in the net-neutrality discussion, and anyone who directs it toward the current chair is no ally of his.

Copps added that when he was on the commission, he was concerned about hate speech and would like to see more done to rein it in, adding that given how much uncivil dialog is going on these days, the problem should be a little more obvious.

Fred Campbell, president of Tech Knowledge, which backs Pai's Title II rollback, stood up for the chair and against the protests.

“The repeated racist attacks against FCC chairman Ajit Pai and his family in their own home during the holiday weekend are horrific," he said. "The perpetrators of this villainy should be ashamed. These attacks aren’t net-neutrality advocacy. They are terrorism.”

Free Press president Craig Aaron distanced his group, which is strongly opposed to the Title II rollback, from the attacks on Pai and condemned the tenor and tactics.

Should go without saying, but we'll say it again and again. #NetNeutralitypic.twitter.com/LiiYCgDC3e

— Free Press Action (@freepressaction) November 27, 2017

"We don't condone this type of harassment. We believe in rigorous public debate," said Evan Greer, campaign director at Fight for the Future, which called for protests of the pending vote to roll back Title II. "People who care about this issue should be channeling their anger productively and calling on their lawmakers to take action to stop the FCC vote."

Free Press and the other challengers to the FCC's decision to reinstate the UHF discount have told a federal court that it makes no sense for the FCC to reinstate a rule it concedes is obsolete "based on the mere possibility that the Commission will, in the future, open a proceeding to consider something that, as of now, a majority of the Commission believes it cannot or should not do."

That came in their filing in support of a request for an emergency stay of the implementation of the UHF discount, which was scheduled to happen June 5 but was delayed by the U.S. Court of Appeals for the D.C. Circuit to allow more time to consider the stay request and the FCC's response. The filing was also in response to Sinclair's intervention in support of the FCC and in opposition to Free Press' motion for the stay.

The discount means that a station group only has to count half the audience of its UHFs toward the 39% ownership cap, which dates from the pre-digital TV days when UHFs were the weaker signals. Staying the FCC decision would put a crimp in Sinclair's proposal to buy Tribune, which without the discount would push Sinclair's national reach past 70%.

In defending the stay to the court, Free Press attorneys pointed out that even in voting for returning the discount, Republican commissioner Michael O'Rielly said he did not think the FCC had the authority to adjust the statutorily-set 39% cap on a TV station group owner's national audience reach, the reconsideration of which FCC chair Ajit Pai had given as a reason for reinstating the discount he conceded was likely obsolete and instead reviewing the discount along with the 39% cap.

Related > Sinclair to Senate Dems: Let's Talk

With Democrat Mignon Clyburn voting against restoring the discount, that made the two of three commissioners the Free Press filing referred to, and potentially changing the cap was the thing Free Press is saying the FCC could or should not do, according to O'Rielly and Clyburn.

Sinclair argued that eliminating the discount did not guarantee the FCC would approve its transaction or other future deals, but Free Press said Sinclair did not point to a single example "this century." Free Press also said that while Sinclair said that if the court were to reverse the commission it could mean the divestiture of stations bought "during the pendency" of the case's outcome, that flew "in the face of the reality that no mandated television divestiture has been effectuated in decades."

"Reinstating the discount now, rather than awaiting the outcome of this hypothetical future proceeding, will usher in a wave of media consolidation that undermines the agency’s core statutory objectives," Free Press said. "This consolidation will harm the public by reducing the diversity of voices in the national marketplace of ideas and limiting competition in program production and procurement, thereby lowering the quality and quantity of programming available to the public.

"Unless this Court stays the FCC’s order, the nation’s television ownership structure will be significantly and irreparably altered well before this Court will have time to reach a determination on the merits," Free Press continued. "Granting a stay would maintain the status quo pending judicial review, would not harm broadcasters, and would protect the public interest during the course of this proceeding."

At the Senate Commerce Committee's FCC oversight hearing Wednesday (March 8), agency chairman Ajit Pai would not be drawn into the debate over President Donald Trump's attacks on the media, refusing to comment on Trump's "enemy of the people" characterization, but he stood by his past statements against the government pressuring news outlets to cover stories in a certain way and pledged to run an independent agency.

Outlining Trump's "open hostility toward media outlets" -- many of which have business before the FCC, "from regulatory matters to potential merger reviews" -- as well as Pai's historic statements in support of a free press and against White House pressure on independent agencies, Sen. Tom Udall (D-N.M.) asked Pai whether he also views the press as the enemy.

While Pai said he would not comment on issues beyond the commission, he associated himself with the comments quoted, including an op ed in which he wrote, "The government has no business pressuring media organizations into covering certain stories," and an interview in which he said the FCC should use the bully pulpit to continue advocating for free speech.

Udall said the president was using bully tactics against the media and asked Pai whether he agreed with Trump's comments.

"I don’t want to get into the larger political debates, but I will simply reaffirm the quotes that you offered," Pai said, referring to his own quoted statements.

"So you refuse to answer that," Udall noted.

"No," Pai said, adding, "I believe that every American enjoys the First Amendment protection guaranteed by the Constitution."

Pai would not comment on whether his discussions with Trump, including one earlier this week, covered any specific media companies, saying he would leave that question to the White House to answer. But asked if the FCC would operate independently of the White House, Pai said, "Absolutely."

Udall pressed further, asking if Pai would resist "any attempt by the White House to use the FCC to intimidate news organizations." Pai said he has consistently stated the FCC is independent and that he would render decisions based on law, precedent and what he and his colleagues think is in the public interest.

The chairman said he has not had any conversations with anyone at the White House about CNN or the AT&T-Time Warner deal.

Asked if he would immediately report to the committee if the White House contacted him about taking any favorable or negative actions regarding any media or communications business, Pai said he would follow all the appropriate ethical requirements that would apply.

WASHINGTON — Sen. Ed Markey (D-Mass.) laid down another marker on the issue of broadband privacy Monday (Feb. 28), headlining a press conference with privacy groups vowing to fight Republican efforts in Congress and at the FCC to roll back the regulator’s broadband privacy rules.

Markey said Democrats would wage a historic battle to preserve the rules, as well as the Open Internet order to which they is linked. He called ISPs gatekeepers, and said Federal Communications Commission chairman Ajit Pai was doing their bidding by trying to roll back the rules, starting with data-security protections. Markey said that would allow ISPs to ignore best practices and make sensitive information more vulnerable.

Republicans in Congress are trying to roll back the framework using the Congressional Review Act (CRA).

Neema Singh Guliani, legislative counsel for the American Civil Liberties Univion, said at the press conference that consumers would be harmed most by the rollback, with poor and vulnerable communities particularly affected.

She pointed out that the rules require clear notice of the data they collect and do not allow ISPs to make consumers providing information a quid pro quo for receiving service. She said that "take it or leave it" approach requires consumers to choose between giving up their privacy and using the Internet.

She also said consumers need protection from discriminatory ad practices based on the information collected and shared about them.

Gaurav Laroia, a policy counsel at Free Press, said consumers need the FCC rules to be protected from abuse.

All of the speakers argued that ISPs are essentially monopolies, so consumers have little choice between giving up personal information or acceding to their practices.

The public is not going to give up the protections without a fight, Markey said.

Pai last week pledged to stay the FCC’s implementation of the initial set of new privacy rules — data security requirements — set to take effect March 2. He has signaled that the FCC will rethink the entire regime to the degree that it diverges from the Federal Trade Commission’s lighter-touch approach to edge providers.

The FCC in October voted along party lines to require ISPs to obtain subscribers’ permission to share their Web-surfing data, app use histories and other "sensitive" data with third parties for marketing and other purposes. It was billed as based on transparency, consumer choice and data security. The FTC has no such opt-in requirements for the data collection and sharing of edge providers like Google and Facebook.

The vote on the FCC framework was 3-2, with one concurrence from Democratic commissioner Mignon Clyburn, over the absence of a prohibition on mandatory arbitration clauses, and two strong dissents from Republican commissioners Pai and Michael O’Rielly. Since then, the FCC has lost both Democratic chair Tom Wheeler and commissioner Jessica Rosenworcel, with the two dissenters now in the majority.

ISPs have said the FCC opt-in regime could take a big bite out of the free-content model that powers the Internet, since it relies on targeted marketing to remain free. They asked the FCC to stay the rules, arguing they need to be harmonized with the FTC’s approach.

Separately on Monday, Rep. Frank Pallone (D-N.J.), ranking member of the House Energy & Commerce Committee, asked the GAO to study the broadband regulatory landscape given the fluctuating authority issues and ongoing threats to consumer data and security.

The ISP-backed 21st Century Privacy Coalition is all for re-setting the FCC framework, including via the CRA.

CPC co-chair Jon Leibowitz, former Democratic chairman of the Federal Trade Commission, said that a CRA would leave no enforcement gap because "Section 222 of the Communications Act will still apply, even in the absence of specific rules. Section 222 has applied to ISPs since the FCC adopted the Open Internet Order and, in an enforcement advisory in May 2015, the FCC made clear that it would use the statute to ensure ISPs protect their customers’ privacy. A CRA resolution of disapproval therefore would not leave ISP customers’ privacy rights unprotected," he said.

"To the contrary, it would restore the status quo in effect for the 18 months prior to the passage of the October 2016 privacy rules. Moreover, the FCC is not hamstrung moving forward,” Leibowitz said. “The FCC could adopt new rules not ‘substantially the same’ as the rules adopted in October which could, for example, include an approach similar to the FTC’s proven privacy framework."

A new study from Free Press, "Digital Denied," asserts that "communities of color find themselves on the wrong side of the digital divide for home-Internet access – both in terms of adoption and deployment – in a manner that income differences alone don’t explain."

For example, among those households with family incomes less than $20,000, 58% of White households have Internet access, while it is only 51% for Hispanics and 50% for Blacks in that same income bracket.

"[E]ven after accounting for such differences in income, age, education and other factors, many racial and ethnic groups continue to lag behind Whites in home-Internet adoption."

The report also asserts that the main culprit in the persistence of a digital divide is wired broadband.

"[T]he relatively higher levels of competition and choice in the mobile market have largely closed such divides in mobile internet and cellphone adoption," the report notes.

By contrast, it says, wired broadband is a duopoly at best.

Saying "public policy intended to address the digital divide has largely failed to close the gap, the report proposed some fixes, including lower prices and "a functioning resale, wholesale market."

The FCC under chairman Tom Wheeler attempted to reregulate prices for business data services, but ran into a new Administration warning them off the proposal before it could be voted.

The report concluded that "contrary to one popular narrative, people of color who do not adopt home internet have a very high demand for it," which means they would "benefit greatly from lower prices and more choices for service."

The report asserts that while "only 18% of non-adopting White households say they would subscribe at a lower price, 33% of non-adopting Hispanic households and 28% of non-adopting Black households say they would."

NCTA: The Internet & Television Association had no comment on the report, but its largest member, Comcast, is adding flexible plans that could help with as-needed access. Last summer, the company announced pay as you go, prepaid TV and Internet plans that have no contract or credit check. It is testing them in Illinois, Michigan, Georgia, Florida and Indiana and plans to offer the option everywhere in its footprint.

Online petitions opposing the proposed AT&T-Time Warner merger have collected 115,000 signatures and counting, according to Demand Progress, Free Press and Credo Action, which are all hosting petitions on their Web pages. The wording is different but the message is the same.

"Stop the merger of AT&T and Time Warner, which would hurt consumers, decrease competition and drastically increase market concentration," the Credo petition says, which is targeted at the Justice Department's antitrust division (the FCC may or may not be vetting the deal depending on whether it can be structured to exclude the handful of FCC licenses Time Warner has).

The groups talk about the merger being "dangerous concentration of economic and political power," essentially lumping it in with other "megamergers" as being about lining the pockets of big business instead of consumer welfare.

"“Unless you’re a Time Warner shareholder, one of its corner-office executives, or an AT&T lobbyist, this merger would be catastrophic,” said Free Press field director Mary Alice Crim.

AT&T and Time Warner say the deal is about making the combined company a stronger online video competitor to traditional cable, particularly on the mobile broadband front.

The Senate Judiciary Antitrust Subcommittee is scheduled to look into the competitive impact of the deal in a Dec. 7 hearing.

Reaction was mixed to the Justice Department's announcement it was OK with the Charter-Time Warner Cable merger, with conditions, and FCC Chairman Tom Wheeler's circulation of approval of the deal, with conditions.

Free Press was not sanguine about the prospects, laying some of the blame at Wheeler's feet. "“Chairman Wheeler has just tarnished his legacy as head of the FCC," said Free Press President Craig Aaron. "As he nears the end of his term, this wasteful merger undermines his oft-stated priority of ‘competition, competition, competition.’ I guess he decided it was time for a new mantra....“There’s nothing about this massive merger that serves the public interest. There’s nothing about it that helps make the market for cable-TV and Internet services more affordable and competitive for Americans."

The Stop Mega Cable Coalition, which was strongly opposed to the deal, appeared to be at least slightly assuaged by the conditions on access to over-the-top content and interconnections. But it signaled it still had issues it wanted the FCC to deal with before voting on the proposal.

“The conditions proposed by Chairman Wheeler represent an important first step towards protecting the interests of consumers and preserving competition in the cable and broadband marketplaces," the coalition said.

“While the draft order circulated today would target a number of key issues tied to Charter’s mega merger" -- the chairman signaled some of what was in it -- "it still falls short of addressing all of the threats to competition and consumers posed by this transaction. Among other things, the conditions proposed in the draft order do not fully prevent Charter from using its dominant position in the marketplace to thwart competition from over-the-top (OTT) streaming services and to stifle competitors in underserved, rural communities. For example, Charter should be required to offer a stand-alone broadband service that would enable consumers wishing to 'cut the cord' to have that option. As the merger review proceeds at the FCC, our members urge the Commission to consider the public interest above all, and to impose conditions that truly solve for the competitive harms presented by this merger.”

Stop Mega Cable Coalition members include Dish, Consumers Union and the Writers Guild of America, East and West.

The Writers Guild of America, West, would have been happier if the deal had been blocked, but was pleased with the conditions and their seven-year duration.

“The WGAW does not believe the merger of Charter, Time Warner Cable and Bright House Networks is in the public interest. However, we commend the Department of Justice and Federal Communications Commission for recognizing the harm to video competition presented by the merger and for imposing conditions to limit anticompetitive behavior.

One of the WGAW’s key concerns has been that the merger would significantly increase both the ability and incentive of the merged firm (New Charter) to use its market power to limit online video competition. In this case, the DOJ’s proposed conditions will limit New Charter’s ability to restrain programmers from licensing content to online video distributors (OVDs). Further, the FCC conditions prohibiting data caps and interconnection fees for seven years will help protect both content creators and consumers in this growing online market."

Zero-rating plan foes got together over the weekend to collect signatures on a letter they plan to send today (March 28) to FCC chairman Tom Wheeler urging him to crack down on zero-rating plans before they "break the Net."

The FCC is currently investigating zero-rating plans -- in which some video content does not count against usage caps -- from a handful of top ISPs as part of its Open Internet general conduct standard of review for business practices that could impede a free and open Internet, including Comcast's Stream TV, which has a complaint filed against it.

The groups appear to have no doubt the practice violates both the spirit and the letter of the new FCC Open Internet rules.

"As currently offered, these plans enable ISPs to pick winners and losers online or create new tolls for websites and applications," they wrote.

Referring to the Comcast, AT&T, Verizon and T-Mobile plans being vetted by the FCC, the groups say the services "distort competition, thwart innovation, threaten free speech and restrict consumer choice." Those are all harms the FCC's Open Internet rules were meant to prevent, they argue, and allowing them would be "a serious threat to the Open Internet."

The groups also made a point of saying the FCC's Open Internet order "ensures that Internet users control the content they access, not their ISPs."

"The Open Internet rules say that ISPs cannot pick winners and losers online by slowing down some applications and services while speeding up others," they added.

The net-neutrality rules do not hold edge providers to the same standard, however, since, as Wheeler has pointed out pointedly, the rules to not apply to them.

That disparity hit the fan last week when Netflix conceded its users did not have control over the Netflix content they accessed over AT&T and Verizon broadband service -- Netflix said it was limiting the quality to keep users under bandwidth caps, though the company added it was working on a technology to give users control over bit rates vis-a-vis bandwidth caps.

A spokesperson for those groups calling for no zero-rating plans was checking at press time whether they were also concerned about Netflix throttling online video without telling customers or the companies.

Among the groups signing on to the letter were MoveOn.org, ColorOfChange, Center for Media Justice, Fight for the Future, Demand Progress, Free Press and Open Technology Institute.

Free Press policy director Matt Wood said he sees a clear difference between ISPs as carriers subject to neutrality rules, and Netflix, which is not.

"The bottom line for me is that net neutrality prevents carriers from dictating what we say to each other,” he told Multichannel News. “It doesn't dictate what we say to each other ["we" including Netflix as a speaker]. Netflix is free to transmit its content however it wants. If users want to leave that behind because they don't like that, that's fine. I'm not here to defend anything Netflix is doing, but you can't shoehorn this into net neutrality because it is not about the carrier in the middle interfering with content."

"Free data services are pro-consumer, innovative offerings that we should all embrace," said Brad Gillen, EVP at CTIA, which represents wireless ISPs. "It should also come as no surprise that mobile consumers love free data so they can watch videos, listen to music or use the Internet without charges to their monthly data allowance. The FCC should reject efforts to take away from consumers these free data services and options."

“To claim that zero rating is anything other than good for consumers makes zero sense," says Mobile Future board chair Jonathan Spalter. "It is almost as ridiculous as defending Netflix on Friday (March 25) for secretly throttling video to millions of unsuspecting customers and turning around on Monday to attack consumer-friendly free data offerings. "New service options that make it easier for consumers to afford access to more content is a good thing. Free mobile data offerings give consumers more than they pay for, which is particularly important for price-sensitive consumers. If the FCC is trying to encourage competition and consumer choice, it will reject efforts to thwart carriers from vying for customers with differentiated new service offerings. Doing anything less will make America’s wireless consumers the ultimate losers.”

Mobile Future members include Samsung, Verizon, and Qualcomm.

Stakeholders and interested observers didn't even wait for the FCC to finish outlining the new broadband privacy proposal--and its opt-in requirement for sharing targeted ads--to reporters before they were peppering them with comments.

Privacy groups were looking for sector-specific rules and they got them. ISPs were looking for a lighter hand, although FCC officials signaled it was the beginning of a process--it is rulemaking proposal--with plenty of time for input and alternative proposals, some of which have already been offered up.

Cable operators and other ISPs had suggested the FCC use the FTC model, which is to inforce privacy polices under its unfair and deceptive practices authority, rather than come up with a new regulatory regime. Apparently, that didn't happen. Consumer privacy activists pushed for strong rules, saying the FTC model was too weak, relying on enforcing company promises. The FCC appeared to be listening.

Out of the gate almost before the electrons had dried on the FCC fact sheet was Public Knowledge, one of those who had called for tough new rules.

“We applaud the Chairman for taking a decisive step to protect consumers," said staff attorney Meredith Rose. "That he has done so despite overwhelming industry opposition shows a deep commitment to the Commission’s role as a consumer protection agency. Laws enshrining the right of consumers to enjoy safe, secure communication date back to the very earliest days of the Postal Service; and, much as access to letter carriers was at that time--and access to the telephone network was a generation ago--access to broadband Internet today is an absolutely ecessary conduit for participation in modern society."

Tech think tank, the Information Technology and Innovation Foundation (ITIF), was not happy.

"A sector-specific privacy rulemaking for broadband providers is misguided," said telecommunications policy analyst Doug Brake. "Under the FTC’s enforcement of best practices and broadband provider policies, privacy protections are already well balanced with other values, such as cost, usability, or innovation. Moreover, a sector-specific rulemaking ignores privacy-protecting technologies like encryption and virtual networks, and the fact that all major broadband providers already allow consumers to control how their information is used."

Free State Foundation President Randolph May agreed.

"FCC Chairman Tom Wheeler appears determined to use the expansion of the FCC's power resulting from the agency's Open Internet order classification of broadband Internet providers as common carriers to adopt new, more burdensome privacy regulations applicable to ISPs," he said; "This is another case of the FCC wanting to exercise expansive regulatory authority because it can, not because it is wise."

As to the FCC's claim it was taking a flexible approach to a privacy regime it signaled was clearly needed given the customer info ISPs had access to.

“The FCC is ‘solving’ a problem entirely of its own making,” said Berin Szoka, president of TechFreedom, following the release of a fact sheet on the proposal. “There was no ‘regulatory vacuum’ over broadband privacy until the FCC ‘stole the FTC’s jurisdictional lunch money,’ using ‘strong net neutrality’ as pretext for a naked regulatory power grab....“When Wheeler claims his proposed approach will be ‘flexible,’ he really means the Chairman and Enforcement Bureau chief will retain unfettered discretion to make essentially arbitrary decisions about the future of broadband."

Senior FCC officials pointed out Thursday (March 10) that the proposal does not affect search engines and edge providers, something ISPs argued left a privacy gap.

But Gaurav Laroia, policy counsel for Free Press, another fan of strong rules, suggested there was a difference. “As with the social media sites or search engines we use, our broadband providers can monitor and misuse our most private information, Laroia said. "But while we can choose among millions of options when it comes to websites and apps, we have little to no choice when it comes to our Internet service providers. That’s why Congress was wise to require that the FCC maintain special privacy protections for customers of all common carriers. It’s crucial for the FCC to modernize these protections and apply them to broadband. By initiating this rulemaking, the FCC is taking the first step toward fulfilling its responsibility under Title II to protect the privacy of all telecommunications customers —including broadband Internet users. Chairman Wheeler and the other commissioners must establish the agency as  a strong defender of online privacy.”

Jeff Chester, executive director of the Center for Digital Democracy, was another fan.

"The proposed FCC opt-in for most consumer transactions can provide a foundation where data is under a person’s control—not a broadband company or some unknown third party," he said. "It’s a major step forward for the U.S., which has lagged behind other countries when it comes to protecting consumer privacy rights. As Americans learn more about the actual privacy-threatening practices of ISPs, we expect them to support speedy approval of new privacy safeguards by the FCC."

Allison Remsen, executive Director of Mobile Future, saw the item as clouding that future.

“While protecting privacy is a priority for the industry, the key question is how best to ensure simplicity, transparency and consistency for consumers," she said "The goal here should be to ensure consumers get the protection they deserve and expect whether they are interacting with a service regulated by the FTC or the FCC. Imposing conflicting or overly prescriptive FCC rules that stray from the FTC’s proven approach will not keep pace with innovation and will only serve to give consumers a false sense of security and fewer competitive service offerings. With the FCC’s role to regulate in this area far from certain, this proceeding adds another layer of uncertainty to America’s mobile sector.”

Senate Commerce Committee member and leading privacy advocate Edward Markey (D-Mass.) had urged the FCC to adopt strong rules and clearly thought that was what he got.

“I applaud Chairman Wheeler for releasing a proposal to ensure broadband customers have their privacy protected. Internet service providers have a duty to protect the privacy of consumers who use the company’s wired and wireless infrastructure to connect to the world," he said. "I urge the Commission to take up the proposal at its March meeting and move quickly to put these rules on the books.”  

The fact that the FCC is applying the rules to edge providers search engines and Web sites is a big issue with Fred Campbell, director of Tech Knowledge.

"Private consumer information is like any other secret. Even if you only tell a few friends you think you can trust, your secret will likely spread. And the Internet companies the FCC refuses to hold accountable for your privacy — like Google — aren't your friends," he said. "They're in the business of selling your secrets — secrets so valuable that Google is now the largest company the world has ever known. Yet the FCC plans to exempt Google and the Internet's other biggest secret-sellers from its new privacy rules. It's the equivalent of adopting a nuclear weapons ban that applies to everyone except the United States and Russia — the world’s biggest nuclear powers — and claiming the ban will keep the world safe from nuclear attack."

USTelecom was taking the FCC at its word that it was seeking input on the proposal and that it was still, at least in some respects, a work in progress.

“Consumers should be able to count on privacy rules that are evenly applied across the Internet economy. We are pleased the commission’s proposal includes the general principles emphasizing consumer choice, transparency and data security outlined in the broad industry framework presented by USTelecom and four other associations representing the vast majority of the nation’s Internet service providers," said USTelecom President Walter McCormick. "As the FCC considers proposals that will be submitted into the record in this proceeding, we believe it is important to develop an accurate picture of how consumer Internet information is used and by whom. We urge the commission to implement the general principles we have outlined in a flexible way based on the Federal Trade Commission’s longstanding and effective approach to privacy that has applied across the Internet, including to broadband providers, for years. Fragmenting current privacy protections for using the Internet won’t serve anyone well.”

The FCC will first have to collect likely at least a couple monthsworth of comments before it could vote on an order. Officials signaled they were still open to new ideas, and sought comment in the proposal on a number of issues, including whether some information needed more protection than others and exactly what customer information could be shared on an opt in vs. op out basis.

Free Press research director Derek Turner said FCC commissioner Ajit Pai was flat-out wrong when he said investment by larger ISPs has flat-lined since the FCC's decision a year ago to reclassify Internet access as a Title II telecommunications service subject to common-carrier regs.

In a speech on Feb. 26 marking the one year anniversary of the vote, Pai said the reclassification had decreased investment, discouraged innovation and injected uncertainty in the marketplace, all things he pointed out he had predicted in voting against the regs.

In response, Turner, said Monday (Feb. 29): "The broadband industry’s apocalyptic predictions about how the adoption of enforceable Net Neutrality rules would destroy the market have failed to materialize in the year since the FCC’s historic vote. Network investment is up. Revenues and profits are higher. And subscriber growth continues at a high level even as prices rise and the market nears saturation."

He called Pai a "dead-ender" peddling a false claim and then blaming the FCC's new rules for a nonexistent result.

“Policymakers like Pai should stop going on about imaginary harms and start tackling real problems," Turner said "Future threats to the U.S. broadband market come not from regulation, but from the consequences of market-power abuses that are likely to arise as the industry becomes more concentrated and less competitive.”

Free Press plans to hold a rally outside the FCC's last meeting of the year Thursday, Dec. 11, to once again urge the FCC to reclassify network neutrality under Title II.

The FCC is not voting on any network neutrality related items at the meeting, and it is not clear whether or not the chairman will circulate the hybrid Sec. 706/Title II proposals for additional comment.

In addition, signs are pointing to at least February for a vote on new rules, and maybe later.

But Free Press wants to press the issue.

“Wheeler claims he needs more time to mull over Net Neutrality, but he should have all the info he needs right now to safeguard the open Internet,” said Free Press field director Mary Alice Crim in a statement. “Americans can't afford any further delays. The overwhelming public support for Title II protections is all the agency needs to take immediate action."

The rally will feature selected readings from network neutrality public comments and some visual aids--signs, props--to "to remind Chairman Wheeler that the public is still watching and waiting for real Net Neutrality action."

Given the 4 million-plus comments and the President's call for Title II, the chairman probably does not need reminding.