In Front of Aspen Tech and Telecom Audience, Pai Defends His FCC Goals

Pai suggested critics aren’t seeing beyond their concerns over hot-button issues, like the rollback of common-carrier regulation of broadband service, to look at the commission’s focus on extending broadband. He mentioned positive comments about rural rollouts he heard during his trip. He also got an even-bigger coffee mug from New Mexico Gov. Susana Martinez (R), which he joked might make the original, oversize Reese’s mug jealous. That "mug has taken on a persona of itself,” he said. A report on HBO’s Last Week Tonight against net neutrality deregulation featured the original large mug (see 1705080042). “Crowdsourcing has typically not been in my favor,” Pai quipped about the TPI moderator's suggestion he run an online poll about which mug he should use. “I love my trolls.”

On a more serious note, Pai recalled the advice of many past commission chairmen he consulted, who counseled concentrating on the job. “I’m going to stay focused on my agenda,” Pai said: “I truly believe that we are doing the right thing” for consumers. He defended a much-criticized video where he rebutted fears that non-common carrier regulation of ISP service would kill popular net services and pastimes. “It was simply a way to jab back at some of the hysteria prophesies of doom that we hear,” Pai said now.

Pai wishes as many people watched his videos about other policies and travels as viewed his net neutrality video, which drew scorn for including a defender of conspiracy theories. “If you actually go back and listen to what I said, I’ve said exactly what transpired” in the few months since the regulatory rollback took effect, he said. “All the people who are just up in arms about just a two-minute video need to get over it and just focus on the facts. … Let’s focus on what we all can agree on.” He cited an open internet and digital investment.

The IG report on the Electronic Comment Filing System meltdown during a net neutrality comment period under Pai “was a terrific report,” he said: “For those who actually take the time to read it, rather than only reading the headlines about it, you can see it vindicates” the agency. Experts told the FCC that they were “99 percent sure that it’s bots” behind the problems, Pai recounted now: “We want to make sure this does not happen again. We’ve encouraged both reform" of ECFS and are exploring things like CAPTCHA authentication for commenters to show they are individuals, not automatons.

ECFS fixes are on the way, as is the economics office, but both may take a little time, Pai said. On ECFS, “I can’t predict, because in part IT systems are not something you can [overhaul] overnight, but it’s certainly something we expect to do as quickly as we can,” he said. The new economics office will start after “procedural steps” the agency is going through with stakeholders like unions and Congress, the chairman said. He hopes soon “to have it up and running.”

On Sinclair/Tribune, Pai understands the matter remains pending before the agency’s administrative law judge after commissioners referred it there. After the referral, Tribune pulled out of the deal. White House Counsel Don McGahn’s call about the deal was “pretty unusual” for the Trump administration, Pai said. “It’s the first time I got a status inquiry of that kind.” It was “a typical status inquiry” and “not at all” improper, Pai said. “This was pretty mild stuff” compared with Obama taking to YouTube asking the “FCC to change course on an NPRM,” Pai said.

Some disagreed, including Wheeler, Pai’s predecessor who changed course on net neutrality after Obama’s request. “There is a huge difference between a public comment on an FCC proceeding and a secret call that only became known when it was forced into the open at a congressional hearing” (see 1808160071), Wheeler told us. “I admire the chairman’s honesty when asked at the hearing, but what other secrets are there?” Wheeler repeated his preference the agency he used to lead not resolve the inquiry without a public hearing (see 1808140048).

Public Knowledge Senior Counsel John Bergmayer noted it’s not “inappropriate per se” for presidents to weigh in on FCC policy initiatives. But “Obama’s YouTube message was a matter of public record -- he wasn’t trying to hide anything or use behind-the-scenes influence,” Bergmayer noted. “There is nothing wrong with getting a status check” on Sinclair/Tribune, either, he added. “Trump’s various Twitter comments on matters before the FCC” and DOJ are also “a matter of public record, including his comments on Sinclair.” The president opposed sending the matter to an ALJ (see 1807250057).

TPI Notebook

A top DOJ lawyer doesn't think trade disputes between countries are affecting foreign nations' antitrust enforcement action. But "there may be one or two examples on the margins that I can’t talk about," said Deputy Assistant Attorney General-International Affairs Roger Alford. Another Antitrust Division front-office official told TPI that Justice won't shy away from litigation when necessary (see 1808200056). On Monday's panel with Alford, an ex-FTC member and a Qualcomm lawyer sought more transparency in international antitrust actions, to verify there isn't such interference. George Mason University Global Antitrust Institute Executive Director Joshua Wright hopes Alford is correct about no interference. The FTC should continue to "keep trade out of this stuff so we can speak bilaterally with the 130 agencies around the world" that also deal with antitrust, he said. "When one of those agencies has a substantial deviation" from norms, don't rely on trade sanctions but "community sanctions," he recommended. "You rarely see U.S. agencies discussing substance of decisions with foreign nations." When a case gets differing rulings from agencies in various countries, he thinks antitrust enforcers could make public some results. "Show people and the deviation will speak for itself and you let people decide how to interpret the evidence," Wright said. "It has a salutary international impact." Qualcomm Head-Global Antitrust Alvaro Ramos doesn't know "what motivates a certain decision. They’re not showing their work, so I don’t know what they’re trying to do." That's "why I insist so much in due process." Have "an independent person review the decision," he said, "so we can have a conversation of substance." Ramos doesn't "know if you are protecting the competitive process or helping a friend," regarding some antitrust decisions.

The tech industry defended platform immunity under Communications Decency Act Section 230, which MPAA CEO Charles Rivkin criticized Monday at the event as he slammed piracy (see 1808200059). The section "was written specifically to enable good online actors to police and remove illegal and illicit content from their platforms," an Internet Association spokesperson said. "Without intermediary liability protections it would be harder, not easier, for online platforms to keep bad actors off the internet."

The most-important tech issue of 2018 is data, said conference attendees in an unscientific poll Monday. That includes data collection, security and analysis, with 54 percent of 46 respondents saying data is the No. 1 issue in tech now. Cybersecurity ranked second, with 35 percent rating it the most important tech subject, followed by 28 percent identifying both artificial intelligence and the IoT. Seventeen percent said both spectrum and 5G and 15 percent identified cryptocurrencies. The survey allowed respondents to pick more than one top issue, a TPI staffer noted.