Author Archives: Marvin Ammori

Support for Title II–the Only Sound Basis for Open Internet Rules

The following have urged the FCC to reverse course and pursue Title II.

US Senators

  1. Ed Markey (MA)
  2. Barbara Boxer (CA)
  3. Bernie Sanders (VT)
  4. Charles Schumer (NY)
  5. Ron Wyden (OR)
  6. Richard Blumenthal (CT)
  7. Jeff Merkley (OR)
  8. Elizabeth Warren (MA)
  9. Sheldon Whitehouse (RI)
  10. Ben Cardin (MD)
  11. Kristen Gillibrand (NY)
  12. Corey Booker (NJ)
  13. Al Franken (MN)
  14. Carl Levin (MI)
  15. Angus King (ME)
  16. Bill Nelson (urging consideration of Title II as a “sounder path”)

Members of the House

  1. Nancy Pelosi (CA)
  2. Keith Ellison (MN)
  3. Raúl M. Grijalva (AZ)
  4. Earl Blumenauer (OR)
  5. Michael E. Capuano (MA)
  6. André D. Carson (IN)
  7. John Conyers, Jr. (MI)
  8. David N. Cicilline (RI)
  9. Peter De Fazio (OR)
  10. Donna F. Edwards (MD)
  11. Sam Farr (CA)
  12. Alan Grayson (FL)
  13. Rush Holt (NJ)
  14. Mike Honda (CA)
  15. Jared Huffman (CA)
  16. Marcy Kaptur (OH)
  17. Barbara Lee (CA)
  18. John Lewis (GA)
  19. Zoe Lofgren (CA)
  20. Alan Lowenthal (CA)
  21. Betty McCollum (MD)
  22. Jim McDermott (WA)
  23. Jim McGovern (MA)
  24. Jerrold Nadler (NY)
  25. Eleanor Holmes Norton (DC)
  26. Beto O’Rourke (TX)
  27. Mark Pocan (WI)
  28. Charles B. Rangel (NY)
  29. Tim Ryan (OH)
  30. John Sarbanes (MD)
  31. Jan Schakowsky (IL)
  32. Bobby Scott (VA)
  33. José E. Serrano (NY)
  34. Carol Shea-Porter (NH)
  35. Mark Takano (CA)
  36. John F. Tierney (MA)
  37. Pete Visclosky (IN)
  38. Michel Michaud (ME)
  39. Anna Eshoo (CA)

Mayors and States, etc.

  1. Mayor Bill De Blasio (NYC)
  2. Mayor Edwin Lee (SF)
  3. Mayor Charlie Hales (Portland)
  4. State Library of Kansas
  5. Massachusetts Department of Telecommunications and Cable

Tech Companies & Startups Across Economy

  1. Netflix
  2. Automattic/WordPress.com
  3. Reddit
  4. Dwolla
  5. Meetup
  6. Kickstarter
  7. Etsy
  8. General Assembly
  9. Foursquare
  10. Gilt
  11. Spotify
  12. Upworthy
  13. Vimeo
  14. Cogent
  15. Opera Software ASA
  16. Codecademy
  17. CodeCombat
  18. Contextly
  19. OpenCurriculum
  20. Touchcast
  21. Heyzap
  22. VHX
  23. Pocket
  24. Warby Parker
  25. Mozilla
  26. Floor64/Techdirt.com
  27. Golden Frog
  28. Data Foundry
  29. ThoughtWorks
  30. MobileWorks
  31. LendUp
  32. Distinc.tt
  33. Twilio
  34. Badger Maps
  35. Linear Air
  36. Poll Everywhere
  37. Publitas.com
  38. RebelMouse
  39. Shapeways
  40. TerrAvion
  41. Rewheel
  42. Gandi
  43. Fandor
  44. Embedly
  45. Apportable

Telco and Cable Companies

  1. NTCA (rural telco association)
  2. COMPTEL
  3. Sunset (fiber provider)

Trade Associations

  1. AARP
  2. CCIA
  3. Engine
  4. Writers Guild of America, West
  5. i2Coalition

Investment Firms

  1. Y Combinator
  2. Union Square Ventures
  3. Trillium Asset Management
  4. Calvert Investments
  5. Arjuna Capital/Baldwin Brothers Inc.
  6. Zevin Asset Management
  7. First Affirmative Financial Network
  8. Clean Yield Asset Management
  9. Colorado Sustainable Financial Planning
  10. Nathan Cummings Foundation
  11. Park Foundation
  12. As You Sow Foundation

Public Interest Organizations

  1. Free Press
  2. Electronic Frontier Foundation
  3. Public Knowledge
  4. Fight for the Future
  5. Demand Progress
  6. National Hispanic Media Coalition
  7. Open MIC
  8. New America Foundation Open Technology Institute
  9. MoveOn
  10. American Civil Liberties Union (ACLU)
  11. Access
  12. Consumers Union
  13. Common Cause
  14. CREDO
  15. ColorofChange
  16. Center for Media Justice
  17. Future of Music Coalition
  18. Benton Foundation
  19. Voices for Internet Freedom
  20. AimHigh LA
  21. Appalshop
  22. Art Is Change
  23. Chicago Media Action
  24. Clarisel Media
  25. Common Frequency
  26. Dignity and Power Now
  27. Easton Community Access Television
  28. Families For Freedom, Inc.
  29. Generation Justice
  30. Hispanic Association of Colleges and Universities (HACU)
  31. Iguana Films
  32. Institute for Intellectual Property and Social Justice
  33. Iraq Veterans Against the War
  34. Latino Rebels
  35. LatinoJustice PRLDEF
  36. Librotrificante Movement
  37. Line Break Media
  38. Main Street Project
  39. Martinez Street Women’s Center
  40. May First/People Link
  41. Media Action Grassroots Network (MAG-Net)
  42. Media Alliance
  43. Media Literacy Project
  44. Media Mobilizing Project
  45. Message Media Education
  46.  Mexican American Opportunity Foundation (MAOF)
  47. MujerLatinaToday.com
  48. National Association of Hispanic Journalists (NAHJ)
  49. National Association of Latino Independent Producers (NALIP)
  50. National Consumer Law Center, on behalf of its low-income clients
  51. National Institute for Latino Policy (NiLP)
  52. National Latina Institute for Reproductive Health
  53. News Taco
  54. Organizing Apprenticeship Project
  55. Paper Tiger TV
  56. Presente.org
  57. Radio Bilingüe 45. Ruth Livier
  58. St. Paul Neighborhood Network
  59. The Greenlining Institute
  60. The People’s Press Project
  61. TURN (The Utility Reform Network)
  62. Women In Media & News (WIMN)
  63. Women, Action & the Media
  64. Working Films
  65. Working Narratives
  66. Young Women United
  67. Center for Rural Strategies | Whitesburg, KY
  68. Access Humboldt, Eureka, California
  69. Access Sonoma Broadband, Cazadero, CaliforniaRURAL
  70. Akaku Maui Community Media, Kahului, Hawai’i
  71. Anne Braden: Southern Patriot Project, Whitesburg, KY
  72. Appalachian Citizens Law Center, Whitesburg, Kentucky
  73. Appalshop, Whitesburg, Kentucky
  74. A Prairie Populist, Minnesota
  75. Athens Area Council for the Arts, Athens, Tennessee
  76. Bluegrass Rural, Melber, Kentucky
  77. California Center for Rural Policy, Arcata, California
  78. The Canadian Record, Canadian, Texas
  79. Central Appalachia Regional Network
  80. The Central Collective, Knoxville, Tennessee
  81. Coal River Mountain Watch, Naoma, West Virginia
  82. Gourd & Associates, Park Hill, Oklahoma
  83. Grassroots Foundation, Joes, Colorado
  84. Greenville Museum of Art, Greenville, North Carolina
  85. Independent Living Resources, Richland Center, Wisconsin
  86. Institute for Agriculture Trade and Policy, Minneapolis, Minnesota
  87. Institute for Local Self Reliance, Minneapolis, Minnesota
  88. June Appal Recordings, Whitesburg, Kentucky
  89. K12 Handhelds, Inc., Portal, Arizona
  90. Living Independence Network Corporation, Boise, Idaho
  91. Media Literacy Project, Albuquerque, New Mexico
  92. Missouri Farmers Union, Langdon, Missouri
  93. National Network of Forest Practitioners, Athens, Ohio
  94. Ohio Valley Environmental Coalition, Huntington, West Virginia
  95. The People’s Press Project, Moorhead, Minnesota
  96. Progress Lakeshore, Manitowoc, Wisconsin
  97. Public Relations Association of Louisiana, Shreveport, Louisiana
  98. Public Relations Society of America, Shreveport, Louisiana
  99. REACH Healthcare Foundation, Merriam, Kansas
  100. Redwood Alliance, Arcata, California
  101. Rural Broadband Policy Group, Whitesburg, Kentucky
  102. Rural LISC, Washington, DC
  103. Root Deeper Marketing, Athens, Ohio
  104. Shawn Poynter Photography, Knoxville, Tennessee
  105. Southern Idaho Rural Development, Shoshone, Idaho
  106. Summit City Lounge, Whitesburg, Kentucky
  107. Terzetto Creative, LLC, Huntington, West Virginia
  108. Tribal Digital Village Network, Pala, California
  109. The Utility Reform Network, San Francisco, California
  110. Virginia Rural Health Association, Blacksburg, Virginia
  111. Washington County Council of Governments, Calais, Maine
  112. The Watershed Center, Hayfokd, California
  113. WV Community Development Hub, Fairmont, West Virginia

Candidates

  1. Ro Khanna

The following would support the FCC if it pursued Title II.

  1. Senator Harry Reid (would “lead the fight” to defend “any” open Internet rules)
  2. Senator Jay Rockefeller (urging FCC to consider “all viable options”)
  3. Congressman Henry Waxman (proposing the “undisputed Title II” authority as a backstop); then coupled with 706 for substantive authority
  4. Yahoo (as a “last resort”)
  5. AOL  (as a “backstop”)

Leaked Nude Celebrity Photos Banned on Twitter #JenniferLawrence

The incident of celebrity photos being leaked on 4chan has everything to make it a fascinating law school exam question, a sociological novel, or a Supermarket tabloid–all wrapped in one. 

Let’s begin with the Supermarket tabloid

There are:

  1. Celebrities
  2. Naked celebrities
  3. Doing what normal people do (taking NSFW images with their iPhones), without their makeup etc.
  4. Hackers
  5. The underbelly of the Internet
  6. Bitcoin!! The new digital currency’s first celebrity scandal?
  7. Anticipation of new photos
  8. Law enforcement

And let’s turn to the sociological novel

  1.  Misogyny 
  2. Celebrity-obsession
  3. Insecurities about digital life
  4. Victorian sensibilities about sex (and women having it)
  5. The privacy standards we as a society should allow celebrities (or not)
  6. Blaming the victim (the women for taking photos)
  7. Hypocrisy (also blaming the women for taking photos)
  8. The role of companies like Apple in our lives (and their obligations)
  9. Cloud computing and privacy
  10. How being leaked without permission and forbidden to share make them either more or less appealing to people 

Then there’s the law school exam. We have interesting questions of:

  1. Speech versus privacy in the digital age (the right of some to share the photos and others not to have their photos shared).
  2. Speech versus privacy for public figures in the digital age.
  3. Speech versus civility/harassment online, particularly towards women (see Without My Consent).
  4. Speech versus degradation of women (remember the debates typified in the Hudnut case).
  5. Private speech power: what principles should private speech platforms like Twitter and reddit adopt regarding speech, privacy, and civility, and when should they be liable for making the wrong call.
  6. Whether these private speech platforms have too much or too little say regarding our speech and/or privacy today. 
  7. Whether the platforms should distinguish between sharing the photos for news value or prurient value. 

If you talk to lawyers at the web companies, they’ll be quick to say there are 10 other hard questions they have to answer every day; this is just the tip of the iceberg. I just published an article in the Harvard Law Review about free expression on Internet platforms like Twitter and I’m sometimes asked my thoughts when Twitter bans photos or videos (LA Times, Fox Business, etc.) Since Twitter is suspending accounts for sharing Jennifer Lawrence’s leaked stolen photos, I might get questions, but the questions (above) will be more interesting than the answers I’d give. 

And there are also security engineering and personal security-practices exams in here too, but I’m a lawyer and will leave that to technologists.

Senator Harry Reid Would Support Title II

Looks like Title II, the only authority capable of supporting real net neutrality rules after a court decision in January, is now politically feasible. For months, opponents of Title II suggested that Congress would destroy the FCC if it chose the Title II path. One skeptic of strong net neutrality rules wrote: “Republicans and pro-telco Democrats in Congress will grind the FCC to a standstill, starve its budget, and do everything in their power to inflict permanent harm on the agency.”  Even the FCC Chairman apparently mentioned politics as a reason against Title II.

Since then, over a dozen Senators and dozens of Congressmen (and dozens of companies, investors, and trade associations) have come out strongly for Title II.

And the Majority Leader, Senator Harry Reid, has sent a letter saying that if the FCC does the right thing and stands up a rule under Title II, the Majority Leader would lead the fight to defend the rule.

That’s a far cry from where we were months ago, when one could plausibly claim that the FCC would successfully be defunded and crippled for adopting real net neutrality. In fact, the political arguments were, effectively, that of course the House (controlled by Republicans) would make the FCC Chairman’s life difficult no matter what. Unless the Senate has the Chairman’s back, he couldn’t do anything. That means the Chairman needed to know if Senate Democrats would support him if he pursued Title II and this letter answers that question. Yes.

Kudos to Senator Reid. This is a game changer. It allows us to argue on the merits, rather than have the FCC hide behind their political fears.

From Bloomberg:

Senate Leader Harry Reid Pledges to Support Open-Internet Rules

2014-07-29 21:17:28.128 GMT

By Todd Shields
July 29 (Bloomberg) — Senate Majority Leader Harry Reid said in a letter he would support “any Open Internet rules” passed by U.S. regulators, language welcomed by supporters of strict rules opposed by telephone and cable companies.
The pledge gives the Federal Communications Commission political cover to regulate Web services like a utility, rather than relying on less robust rules that allow for so-called fast lanes on the Internet, said David Segal, executive director of Demand Progress, a Takoma Park, Maryland-based policy group that received the letter dated yesterday.
Reid’s support is “a reason for the FCC to move ahead with the strongest rule possible,” Segal said in an interview. Other groups that are urging the FCC to approve rules requiring Internet service providers to treat Web content equally also received the letter from Reid, Segal said.

From Vice:

Senate Majority Leader Harry Reid has given the Federal Communications Commission a much-needed political boost as the agency decides whether to move toward a more robust Open Internet policy favored by many net neutrality advocates.

“First, Reid’s letter undercuts the FCC’s argument that Senate Democrats won’t support a Title II order,” Segal said. “Second, it undercuts the FCC’s argument that there won’t be much of a political fight over a 706 order. Reid makes clear that he expects a political fight either way, and with his backing, now the FCC can decide this issue based on the merits, not on the politics.”

Segal makes a good point. The simple fact is that many Republican lawmakers oppose any kind of net neutrality rules whatsoever, whether issued under the authority of Section 706 or Title II. …

“Here’s why this letter matters,” Aaron told Motherboard. “There’s no longer any question that Tom Wheeler has the political support to do the right thing. And the right thing is reclassifying broadband access providers as common carriers under Title II of the Communications Act. Senator Reid makes clear that when Wheeler reclassifies that the Senate leadership will have his back.”

From National Journal:

Reid’s letter did not urge the FCC to use its authority under Title II. But he acknowledged that liberal groups are pressing the FCC on the issue and said he would support “any Open Internet rules” the FCC enacts.

David Segal, the executive director of the advocacy group Demand Progress, said the letter shows Senate Democrats will defend the FCC if it uses the Title II option and that Republicans would likely fight the rules no matter what authority the FCC uses.

Thirty Companies Believe Title II is Essential for an Open Internet

The FCC Chairman Tom Wheeler has proposed to end net neutrality–while claiming to uphold it. Comcast and AT&T unsurprisingly support the Chairman’s proposal, even though they have fought net neutrality for over a decade, tooth and nail. So that should probably tell you all you need to know about the Chairman’s proposal. Oh, also millions of Americans, hundreds of companies, venture investors, churches, and consumer groups and democracy activists stridently oppose the Chairman’s proposal.

Indeed, you can look at the proposal’s language: it authorizes for ISPs “negotiating individualized, differentiated arrangements with similarly situated edge providers.” That is legal-speak for: ISPs congesting their networks then discriminating technically, creating fast lanes and auctioning them off to large companies, while leaving everyone else in a crappy slow lane and killing startup innovation and jobs.  (At least, that’s what over 1 million people are saying.) Chairman Wheeler is actually resting his proposal on a part of the law (called Section 706 of the 1996 Telecom Act) that requires giving the ISPs “substantial room for … discrimination in terms” and simply cannot “bar broadband providers from charging” websites for fast lanes. Meaning, you can’t do net neutrality under Section 706–you can only authorize discrimination and new tolls.

Hundreds of companies have made it clear they don’t want a world of individualized deals and slow lanes, but the Chairman’s office seems to insist that people specifically point to Title II (the part of the law that he should use instead of Section 706) as the essential evidence of disagreement with the Chairman proposal. That’s a little odd–it’s very clear, for example, that the Internet Association Comments (an association of the largest tech companies) is deeply opposed to almost every facet of the Chairman’s proposal, from his exempting mobile and interconnection to permitting discrimination and paid prioritization. The Internet Association is just focusing on substance, not jurisdiction, in its comments.

Nonetheless, I have been keeping a list of companies that have filed something in the FCC docket specifically and explicitly calling on the FCC to rely on Title II not Section 706.  If you have more, please let me know.

  1. Y Combinator
  2. Netflix
  3. Automattic/WordPress.com
  4. Union Square Ventures
  5. Reddit
  6. Dwolla
  7. Meetup
  8. Kickstarter
  9. Etsy
  10. General Assembly
  11. FourSquare
  12. Gilt
  13. Spotify
  14. Upworthy
  15. Vimeo
  16. Cogent
  17. Opera Software ASA
  18. Codecademy
  19. CodeCombat
  20. Contextly
  21. OpenCurriculum
  22. Touchcast
  23. Heyzap
  24. TerrAvion
  25. VHX
  26. MobileWorks
  27. LendUp
  28. Distinc.tt
  29. Pocket
  30. Warby Parker
  31. Rewheel
  32. Mozilla
  33. Floor64/Techdirt.com

Why You Should Care About Net Neutrality

I wrote an article for the Chaldean News, a paper in Michigan for the Iraqi-Catholic-American community.  Continue reading

FCC’s “Commercial Reasonableness” Standard Already a Dismal Failure

T-Mobile filed a petition today making it clear that the FCC’s commercial reasonableness standard is a failure.

Anyone following net neutrality knows that the FCC is proposing to authorize discrimination and pay-for-priority deals known as fast lanes. The FCC is claiming we need not worry, however, because the FCC can make sure that entrepreneurs and users face only “commercially reasonable” discrimination. That is loosely defined: even exclusive deals are presumed commercially reasonable. And, if a startup wants to prove that it’s being offered a commercially unreasonable discriminatory deal, it must sue one of the world’s largest companies (be it Verizon or AT&T or eventually Comcast) at the FCC (or ask the FCC’s “ombudsman” to do it). The startup would then have to meet an extremely vague standard regarding harm to competition, to consumers, or to civic participation, contributing any funds they may have to their favorite lawyers, expert witnesses, and economists. (Yes, ironic, to have a test turning on harm to competition, consumers, and civic participation, since the FCC’s authorization of discrimination, on its face, harms all three.)

Said another way: under the FCC’s rule, discrimination will be authorized and startups would have no recourse at all.

Nonetheless, some at the FCC keep asserting that the vague “commercial reasonableness” standard will be an important safeguard and we should give it a chance (a chance to change the Internet as we know it, perhaps irreversibly).

The commercial reasonableness standard was first used in an order involving data roaming–deals between AT&T and Verizon Wireless and smaller carriers, like T-Mobile. The FCC set out 16 factors (plus a catch-all “other” factor) to determine whether data roaming deals were commercially reasonable.

T-Mobile filed a petition essentially explaining that the FCC’s factors provide far too little guidance to the market and have been ineffective. 

Since adoption of the data roaming rule, however, carriers have continued to report that “the negotiation of data roaming agreements has not meaningfully progressed.” Problems have included offers of wholesale data roaming rates many orders of magnitude higher than the offering carrier’s retail rates to its own data customers, delays of more than eight months to obtain even initial responses to roaming requests, requests for detailed long-term traffic projections and proposed hefty penalties for any resulting deviations from those projections, and testing procedures and queues that would drag on for undisclosed or indeterminate periods of time.
 
These issues continue to persist today, and in some cases are getting worse.
 
Now the FCC wants to bring this approach to the Internet. It’s a bad idea. 

If It Ain’t Broke: “Status Quo” From 2004 FCC Has Often Acted to Protect Net Neutrality

The cable and phone companies are telling people in DC that the Internet has benefited from “no” net neutrality rules. They claim, since there were no rules for a decade, we don’t need them now. They’ve got the story exactly backwards: we have had active FCC interventions on net neutrality. That’s one reason we have had a neutral Internet till now. Indeed, since 2004, we have had enforcement actions, policy statements, merger conditions, spectrum conditions, and a rule. The first time we have had the FCC announce that it would not ensure neutrality but would instead authorize fast lanes … was Chairman Wheeler’s comments earlier this year.  

I explain that here. This post was originally part of the comments filed with the FCC by Engine Advocacy, an organization based in San Francisco that advocates for startups in DC. 

While often imperfect, the FCC has done much to ensure an open internet. Carriers have not historically engaged in rampant discrimination partly due to the threat of FCC action. In 2004, the FCC’s Chairman issued a speech about the “Four Freedoms” online, which promised to keep the Internet an open platform. In 2005, the FCC punished Madison River, a small telephone company that was blocking Vonage, an application that powered online phone calls competing with Madison River’s own service. In 2005, the FCC adopted an Internet Policy Statement and pledged to respond to any violations of the statement with swift action. In 2008, after it was discovered that Comcast, the largest ISP in the nation, was interfering with some of the internet’s most popular technologies—a set of five peer-to-peer (P2P) technologies—the FCC enjoined Comcast in a bipartisan decision. Much of the cable industry was engaging in such actions, so this wasn’t a small exception. In 2010, the FCC adopted the Open Internet Order that was only recently struck down.

Additionally, in the years since 2005, the FCC has conditioned spectrum assignments and mergers on net neutrality rules. The largest three broadband providers have been (or remain) subject to net neutrality for many years. AT&T accepted two-year net neutrality conditions in its merger with BellSouth, and SBC accepted a two-year condition in its merger with AT&T. Verizon accepted a similar condition in its merger with MCI.  Verizon purchased a 22MHz band of spectrum (the C block) in the FCC’s 2008 700MHz auction for $4.7 billion dollars, and did so subject to open internet conditions modeled on the Internet Policy Statement. Comcast has been subject to network neutrality rules since its merger with NBC in 2011, and the merger condition extends for seven years. Both Verizon and Comcast’s conditions still apply today. Moreover, Congress imposed contractual obligations on internet networks built with stimulus funds—nondiscrimination and interconnection obligations that, at a minimum, adhered to the internet Policy Statement, among other obligations.

In light of these merger obligations, license conditions, FCC adjudications and rulemaking, stimulus conditions, and consistent threats of FCC action, startups have enjoyed a generally neutral network that is conducive to, and necessary for, innovation. These actions provided some certainty that startups would not be arbitrarily blocked, subject to technical or economic discrimination, or forced to pay carriers so that the carriers’ consumers can access all the innovation online. 

Following the Verizon v. FCC decision, and under the Chairman’s proposal, that will likely change, in ways that harm entrepreneurship and the public interest.

The past decade of tech innovation may not have been possible in an environment where the carriers could discriminate technically and could set and charge exorbitant and discriminatory prices for running internet applications. Without the FCC, established tech players could have paid for preferences, sharing their revenues with carriers in order to receive better service (or exclusive deals) and to crush new competitors and disruptive innovators. Venture investors would have moved their money elsewhere, away from tech startups who would be unable to compete with incumbents. Would-be entrepreneurs would have taken jobs at established companies or started companies in other nations. The FCC played an important role. The Chairman and this FCC shouldn’t break that. 

See the comments for all footnotes.

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