Year: 2007

Action Alert: Senate Judiciary Mark Up On FISA — Call To Oppose Telco Immunity

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The Senate Judiciary Committee is scheduled to mark up the FISA reform legislation today, Thursday November 15.

The bottom line is that now is the time to call the Senate Judiciary Committee and ask them to oppose retroactive immunity for telecom companies that helped the Bush administration spy on Americans without warrant.

MYDD has this post with a call to action and announces that they will cover the cost of your phone call to the Senate Judiciary members. Follow the link to Chris Dodd’s campaign website to take action now!

[UPDATE 7:14 PM Thursday, by John]: I just got an email from Senator Dodd’s office announcing victory in the Judiciary Committee today. I’ll enter the letter in a comment below the fold.

Stay tuned . . . .

Lies, Damned Lies, and Understatements

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The cable industry is running scared in the face of FCC Chairman Kevin Martin demanding a vote certifying that the cable industry has met the 70/70 test.  This test gives the FCC greater regulatory authority once cable is available to seventy percent of American households and seventy percent of those households subscribe to cable.  This is clear from the way the cable industry has pulled out all stops to avoid the finding, even persuading Warren Communications News to discredit its own Television and Cable Factbook, claiming that there are technical reasons for regarding it as unreliable.

It’s worth quoting the remarks of the managing editor of Warren Communications News’ Television and Cable Factbook to Communications Daily (also owned by Warren) on the subject:

‘The figures from the Television and Cable Factbook aren’t well suited to determining whether the threshold has been met, said Managing Editor Michael Taliaferro.  Taliaferro said Factbook figures understate the number of homes passed by cable systems — and the number of subscribers — because not all operators  participate in its survey.  “More and operators are just not giving up” those numbers, he said.  “We could go with two dozen footnotes when we start to report this data.”  Cable operators participating in the Factbook survey said they passed 94.2 million homes and had 67.2 million subscribers.

‘The FCC official who asked him for the cumulative figure didn’t say how it would be used, Taliaferro said.  If he had known, he would have provided a list of caveats, he said.  “It would have been a very lengthy email,” he said.  Taliaferro said he did point out the shortcomings in a phone conversation with the FCC official but didn’t put it in writing because he wasn’t asked to.  “I had no idea what they were doing with it.”’

Taliaferro, who relies on cable industry data to put out the Factbook, clearly came under a lot of pressure from the industry to badmouth his own data, but even then he didn’t get the job done.  If the problem is understating number of households passed and number of subscribers because cable operators refuse to provide the data, as Taliaferro suggests, then Warren’s Television and Cable Factbook must understate the number of households passed and subscribers.  This means that the real numbers — the numbers we’d have if all the cable providers coughed up the data — have as a matter of mathematical certainty to be greater than 70% coverage and 70% subscription.  Taliaferro, attempting to please the cablecos, has in fact given evidence that the Warren figure of 71.4 percent of homes having gotten cable as of October 10, 2007 has to be an understatement of the reality.

The only way the Warren data could fail to support invoking the 70/70 rule would be if cable providers systematically over-reported the number of households covered and number of subscribers.  And they’d have to be crazy to do that, since they want to avoid regulation at all costs.  I know from personal experience that the cablecos lie to avoid regulation.  It was patent from data submitted by Comcast and Time Warner in connection with the Comcast-Time Warner-Adelphia transaction that Comcast tried to circumvent the 30% cable ownership cap by submitting year-old data for some affected DMAs while Time Warner submitted current data. (You can see where I called them out on this in my expert submission on MAP’s Petition to Deny.)

This is why Warren is so desperate to sow confusion about its own data.  The Nielsen and Kagan numbers (which are lower than the Warren numbers) are estimates.  The cablecos don’t share nearly as much proprietary data with Nielsen and Kagan as they do with Warren, which is regarded as a safe, cable-friendly trade press outlet.  When Warren shared the data with the FCC, the footnote they neglected to provide with it should have read: “Don’t use this data for regulatory purposes because it will make the people who gave it to us very cranky.”  Hence the attempt on Warren’s part to cover up the embarrassing bits like a stripper at a police raid — by misdirection.

It’s also significant that two Republican FCC Commissioners, Deborah Tate and Robert McDowell, have made a huge  deal out of this non-story by writing to Taliaferro that “We wanted to take this opportunity to ensure that at least these two Commissioners are indeed seeking the trustworthiness, truthfulness, and viability of the data in question.”  Either they don’t understand what the mathematical meaning of the understatement by cable operators is, or they’ve decided to play cableco sock-puppets.  I’m hoping for the former, but I’m betting on the latter, athough I’d like to give them the benefit of the doubt.

In addition to voting the 70/70 finding on a 3-2 with Chairman Martin and the two Democrats forming a majority for real regulation of the cable industry, Chairman Martin should put forward a regulation requiring that the cablecos provide detailed coverage and subscription data publicly to the FCC on an annual basis, certified by the CEOs of the cablecos under penalty of perjury.  If Tate and McDowell vote for a rule like that with real teeth to keep the cablecos honest and provide the necessary data to the American people, then they really are concerned with the accuracy of data.

If they don’t, we need to ask whose hand is up the puppets’ arses.

Time For Some Hot Bi-Partisan Action on Cable: Or, Why Copps and Adelstein Need to Work With Martin Here Part I

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I gotta hand it to the NCTA – they really know how to spin the press. Given the outrageous excesses of market power displayed by incumbent cable operators, you would imagine that activists would leap at the opportunity offered by Kevin Martin to reign in cable market power – regardless of whether one likes Martin personally or thinks he is a Bellhead or industry tool in other respects. But no, over the weekend, the NCTA has done an exemplary job of spinning the upcoming sledgehammer to cable market power as a bad thing.

I am talking primarily about the news that the FCC may invoke the “70/70″ provision of Section 612(g) of the Communications Act (codified at 47 U.S.C. 532(g)). For those not as obsessed with the Communications Act as yr hmbl obdnt, this provision states:

[A]t such time as cable systems with 36 or more activated channels are available to 70 percent of households within the United States and are subscribed to by 70 percent of the households to which such systems are available, the Commission may promulgate any additional rules necessary to provide diversity of information sources. Any rules promulgated by the Commission pursuant to this subsection shall not preempt authority expressly granted to franchising authorities under this subchapter.

Now you would think anyone who opposes media concentration would be jumping for joy here, wouldn’t you? At last, a clear source of authority for the FCC to regulate cable in the name of diversity, and a directive from Congress to do it (without preempting local franchise authorities). And one would certainly expect that the Democratic Commissioners, Copps and Adelstein, who have repeatedly shown themselves stalwart champions of diversity and enemies of consolidation, would rush to seize the moment. But while I hope the later is true, some normally sensible people are buying into the cable spin that this is somehow bad because (choose however many apply):

A) It’s an “archaic leftover” of another time and nowadays cable is “highly competitive.”

B) It’s not really true that the 70/70 test is met anyway so the courts will just reverse it.

C) Kevin Martin is an evil Bellhead who has it in for cable, wants to deregulate broadcast media, and shafted local franchising authorities, so you know this must somehow be evil, even though it is something media reform advocates have fought for over 20 years to achieve.

D) Somehow, this is just an effort to distract us from the fact that Kevin Martin is an evil Bellhead who eats puppies and throws kittens into trees for his amusement.

E) Martin is just slapping the cable guys around because they didn’t do family tier.

G) Somehow this helps Kevin Martin deregulate the broadcast industry.

Having spent the last several years trying to get the FCC to recognize the goddamn truth that 70/70 was met years ago, and trying to get the FCC to address leased access and carriage complaint issues, the 30% cable ownership cap, and a bunch of other reforms to address cable market power, I am just a shade peeved to see folks who should know better eating out of NCTA’s hand. Because public policy is not about whether I like or dislike the current FCC Chair or whether I would rather he focus on reigning in telcos rather than cable cos. It’s about what is the best public policy. And what Martin has put out for a vote: 70/70, reform of leased access and the carriage complaint process, and reaffirming the 30% cable ownership cap, are all things justified by the record and urgently needed.

We have already seen that when the Democrats work with Martin to protect independent programmers, good things happen. Holding the cable operators accountable under the set-top box law, letting The America Channel arbitrate its case against Comcast, these are areas where Copps and Adelstein recognized that their interest in promoting diversity and free expression converged with Martin’s interests in restricting cable market power and worked together to create well-crafted rules that promote the public interest without selling anyone out. This is that “bipartisan” thing everyone claims they want – work together where you can, oppose each other when you must, and always keep in mind the public interest rather than your partisan ends.

Below, I run through some background on what’s going on — especially with the 70/70 test. Since that will make this ridiculously long, I will save for Part II why Copps and Adelstein need to seize this opportunity before the NCTA gets a chance to work its mind-clouding magic and once again get a quorum to vote that slavery is freedom and market power is competition. And, since Martin’s motives appear to absolutely rivet everyone’s attention, I will give my best speculative guesses followed by my explanation of why Martin’s motives don’t matter. Because, as in all good politics, Martin has maneuvered it so that he will get his political pay off whether the Democrats vote for the cable items or not. So rather than waste the best chance at cracking cable market power in the last 20 years and give Martin a political victory anyway, the only sensible thing to do is vote for the items and make it clear that doing the right thing in cable over here doesn’t give Martin a pass on previous bad Orders (like preempting local franchise authority) or give a license to deregulate broadcast ownership.

More below . . . .

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The Media Ownership Endgame: Martin's Opening Gambit on Newspaper-TV Cross Ownership

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As I’ve said before, Kevin Martin plays a mean game of hardball — but an honest one. And while I’m happy to have him on the right side in limiting cable market power, it makes fighting on the media ownership side an utter bitch and a half. Like Belichik prepping the Patriots, Martin has carefully studied the mistakes of Michael Powell, studied the strategies of the media reform movement, carefully considered his own strengths and weaknesses, and set up his game plan with a determination to win.

This tends to make some of my friends and colleagues in the movement hate Martin personally, or get bogged down in the distractions and the moves Martin throws. But that’s as stupid as letting yourself get distracted by trash talk. To win this fight, we need to keep our eye on the game, stay nimble, have our own special teams prepped, and remember we’re in this to win in the long haul.

With this in mind, we turn to the opening moves in Broadcast Media Ownership Endgame. Martin already has one key advantage in that because he is the Chairman, he can set the agenda. He controls the timing and can float trial balloons, decide when to hold new hearings or release new studies, and finally declare when he wants a vote. Martin demonstrated his skill in this over the last month, gradually building to the end game, alternating period when nothing seemed to be happening with sudden frenzied activity. Each such move requires us to mobilize resources and exhaust ourselves, and forces us to make process demands for more time and reasonable opportunities for comment. Martin can then chose to acede to our requests in a limited way, letting a deadline slip a few weeks or postponing something by a month. This makes it look like Martin is being reasonable and accommodating, and casts us in the role of partisan foot draggers. Worse, it makes it increasingly difficult to mobilize our troops, because how many times do we have to fight and win these minor skirmishes over procedural issues and timing? People get tired of the issue, or think we already won when what we achieved was merely a temporary respite. Then, like a matador administering the coup de grace on the exhausted bull, Martin plunges his point directly into the heart. (‘Scuse me a minute, I need to check to see if my ears and tail are still attached.)

But Martin has now clearly committed to the final moves of the end game with a PR blitz/charm offensive similar in many ways to his approach in the 700 MHZ proceeding. And, as with the C Block “open access” condition, I do not expect Martin to make signifcant changes to his proposal now that he has put himself out in front and committed to a public position. Martin the Matador has dropped the cloak and gone for the sword. The question is whether the media reform bull is as exhausted or confused as Martin thinks, or if we still have sufficient wits and stamina to give him a surprise.

More below . . .

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Self-destruction of a monster?

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My cable company seems to be self-destructing. We can only hope.

Recently I wrote about my cableco cutting off my service, and not turning it back on until I answered questions about my and my wife’s social security numbers and download habits.

Last Monday I called to complain that despite the premium I was paying for 3Mb/s service, I was getting 300 Kb/s downloads and worse. They responded by cutting me off completely. I’ll spare you the dialog, but you can just substitute any page from Franz Kafka or Lewis Carroll. A guy came on Wednesday to replace my cable modem and splitter, and it appeared in his immediate testing to yield close to the expected 3000 Kb/s.

Over the next few days I found that I only got that speed immediately after rebooting the cable-modem. After a few minutes, it would drop to 1500, 600, 300, 150, and finally 30 Kb/s. Slower than an acoustic modem from before my children were born. All through the rest of the week, I would reboot, and watch as the speed fell off.

Charter stopped taking my calls altogether. They just hung up on me over and over again.

After one of these calls we ordered DSL from our local phone company. The modem arrived Friday. I plugged it in and it worked! 3.5 to 4 Mb/s. And it has stayed that way ever since. I’ve been trying to get my mail and Webpages copied off from Charter, but they won’t let me log in.

Since then, I’ve discovered two things I didn’t know or pay any attention to when things just worked:

  • Charter Communications is run by Microsoft co-founder Paul Allen. What an asshole.
  • Despite increasing their revenue from saps like me by more than 10% over this quarter last year, they announced this week that they’re losing even more money than ever, and their stock lost nearly 20% of it’s value. Couldn’t happen to a more deserving group.

    • Salon loves them some Sundman!

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    Or rather, they used to. For some reason I just checked out Salon.com’s “Best of Salon2003” list. It includes 32 articles, four of them by me. I remembered that the Loebner article made the list, but had forgotten that the Human Genome one did too-also. Holy crap. I musta been a contender.

    This discovery, I think, calls for a repeat-performance link to this little Wetmachine chestnut about the time I got snubbed by Salon editor Joan Walsh. (See, there are some perks to getting laid off. It gives you endless hours to spend polishing your peerless prose, for which you might even get a party invite, not to mention a few hundred bucks, or whatever it was they paid me. If I ever get laid off again (God forbid!) and have time on my hands, maybe I’ll ring up Joan and pitch a few idears.)

    OK, lunch break over. Here endeth my little diversionary walk down literary lane.

    My Brothers In Pakistan

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    “Go to every corner of Pakistan and give the message that this is the time to sacrifice. Don’t be afraid. God will help us, and the day will come when you will see the constitution supreme and no dictatorship for a long time.”

    –Iftikhar Mohamed Chaudry, Chief Justice, Supreme Court of Pakistan

    A man in a tailored suit, surrounded by a cloud of tear gas, hurling something at police. Mobs of hundreds of lawyers surrounding a jury-rigged loud speaker so that they can hear the revolutionary message of a deposed Chief Justice under house arrest: “rise up and spread the revolution of the rule of law!” Given our view of lawyers in popular culture today, these images seem surreal, almost comical. Lawyers? Rising as the bulwark of democracy and the rule of law? Aren’t lawyers about preserving the status quo and circumventing the law? Who can forget the cheering crowds when a giant Tyrannosaurus ate the smarmy lawyer in Jurasic Park as he fled to hide in the port-a-john? Or the lawyers as “ambulance chasers.” I have a friend and fellow progressive who would never consider voting for John Edwards because he was a plaintiff’s lawyer, even if he was about suing mammoth corporations to hold them accountable for shafting otherwise defenseless citizens. So when we see lawyers standing before armed soldiers with guns, shouldn’t we be cheering for the soldiers? After all, how many times have I heard that what you call 100 dead lawyers is “a good start?”

    But ’twas not always so. Consider a different time, when lawyers like John Adams, or serious legal philosophers such as Benjamin Franklin, believed that the rule of law was a matter to die for. As one of their number so aptly put it:

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

    And indeed, listed as the first grievance against King George:

    He has refused his Assent to Laws, the most wholesome and necessary for the public good.

    He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

    He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

    He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

    He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

    He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

    Law, law, law — the Rule of Law. And of the 56 men who signed the Declaration of Independence, 24 were lawyers while several others, such as Samuel Adams and Benjamin Franklin, had extensive knowledge and experience of the law and it practice.

    It has been a long time since lawyers in this country rose in revolution to defend the Rule of Law against the encroachment of a tyrant bent on establishing the direct rule of one man. In the interim lawyers have not been idle in the defense of freedom. But even the lawyers who have forsaken profitable careers in private practice to pursue the goals of social justice or defend indigent defendants because the rule of law depends on providing a vigorous and zealous defense to everyone accused still live lives of relative comfrt and security. We forget, in a country where the rule of law has remained settled for so long we take it for granted. (If anything, we take it perhaps too much for granted, and have come to pay for our complacency.) When I speak to other activists around the world, I am reminded that people like me are “disappeared” or arrested on a regular basis. And that what protects me is that the respect for the rule of law is so deeply embedded in all of us that the idea that the industrial interests I opposed would have me killed seem like bad fiction. But for many lawyers and other social activists around the world, it happens all the time.

    So I am reminded by my brothers and colleagues of the bar in Pakistan once again of the value of the Rule of Law as a bulwark against violence and tyranny. I salute those who could live comfortably off the status quo and drift with the wind of the regime, who instead rise to pledge their lives, their fortunes, and their sacred honors. And while I hope I never come upon such a “time of sacrifice,” I also hope that I — and perhaps others as well — can appreciate why the rule of law remains a cause to inspire and thing to defend.

    Stay tuned . . . .

    Put Up Or Shut Up At the FCC on Net Neutrality “Principles”

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    When the FCC deregulated broadband by declaring it an “information service,” it also adopted four principles that purported to give broadband subscribers a right to “access lawful content of their choice,” “run applications and services of their choice,” “connect their choice of legal devices that do not harm the network,” and enjoy “competition among network providers, application and service providers.” All subject to “reasonable network management,” of course. So when a bunch of us in 2006 pressed Congress to pass a network neutrality law, a lot of folks claimed we didn’t need one because the FCC already had the authority to deal with any problems that might arise. And, when questioned on this very subject at his confirmation hearing for a second term, FCC Chairman Martin said the FCC had ample authority to deal with any violations of the four principles that might arise.

    Thanks to Comcast and their decision to “manage” their network load by degrading BitTorrent,it’s put up or shut up time at the FCC. My employer, Media Access Project, along with Free Press and Public Knowledge, just filed a formal complaint against Comcast and a general Petition for Declaratory Ruling asking that the FCC hold that deliberately messing with a customer’s application while refusing to admit doing it when asked pint blank violates the FCC’s “four principles” and does not constitute a “reasonable network management practice.” This will also press the FCC to find out exactly what the heck Comcast is actually doing (since some folk remain uncertain). Given that Comcast initially denied the very idea as “internet gossip,”, instructed their line staff to lie to customers about it, and are still maintaining that nothing of interest is going on, it looks like the only way will actually find out what the heck is going on and why is to have the FCC pry it out of them.

    Hey, maybe they are telling the truth. But the FCC is in a much better position to know whether Comcast is deliberately lying to its customers and, if so, why. Because while my friend and opposite number Jim Harper at Technology Liberation Front may be content to see if the market punishes Comcast for its “lack of transparency”, I see a lot of bad consequences in letting Comcast throttle traffic as a network management tool and then lie (or, at best, mislead) about it when asked about it point-blank by their customers.

    At any rate, whether folks think we should regulate this kind of behavior or not (and I recognize that a number of smart folks not employed by cable operators feel we shouldn’t regulate this even if everything bad said about Comcast is true), we deserve to know whether the FCC has the authority to regulate this behavior, and the willingness to do so on an enforcement basis. Because if the cable and telco companies that swore up and down that we didn’t need new rules now come in and say the FCC has no authority to take complaints about their behavior after the fact or no authority to order any remedies, then we should know that. And if the FCC is going to leave us high and dry when broadband providers start degrading applications, then we should know that. Because while some folks may think that lying to your customers is an acceptable network management technique, or even an acceptable technique for managing elected members of Congress, I think most Americans would disagree. And I certainly want to know that by November ’08.

    Stay tuned . . . .

    When the writer strikes!

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    I’ve been keeping a desultory eye on the gathering strike by the Writer’s Guild of America, which is the screenwriters’ union — where “screen” means movie screen and television screen.

    One of the points at issue is whether computer screens and iPhone screens also count as “screens”, that is, the writers want compensation for works of theirs that are distributed on the net, and, as I understand things, the other party doesn’t want to give it to them.

    As a person who has made his living as a writer, kinda-sorta, since April, 1980, I find the notion of a writer’s union intriguing and somewhat baffling. It’s hard to imagine a technical writer’s union negotiating terms with Sun, Microsoft, or IBM. But why is that, exactly? Screenwriting is a much more solitary endeavor than technical writing, so on the face of it, one would expect screenwriters to be even less likely to unionize than technical writers. But then again, the stakes are higher in Hollywood, where the difference between an OK screenplay and a good screenplay is measured in millions of dollars at the so-called bottom line. So writers have more clout, is what I’m trying to say.

    Recently my friend the Hollywood actor/producer/script-doctor has been making some noises about pimping the movie rights to my novel Acts of the Apostles. (It would make a great movie, by the way!) I have no understanding of the craft of screenwriting; nor do I have any free time not taken up by the day job & so-called life. So I’m not a very strong candidate to try my hand at writing a screenplay of my book. On the other hand, I’m not in the Guild, and, given that it is a guild— meaning that it’s hard to even gain admission to it— I’m unlikely to be in it anytime soon. So maybe I should go for it.

    Act one, Scene one: Exterior. A dark and stormy night. . .