Month: January 2008

An expensive way to learn elementary-school civics

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The Wall Street Journal published an opinion piece the other day, called The Lessons of Iraq, by one Erik Swabb, who, according to the journal, “served in Iraq as a Marine infantry officer.” Here’s the lede:

“While the improved security situation in Iraq is changing views about the chances for success there, one common belief has remained unchanged: that the war is eroding U.S. military capabilities.

It is true that repeated deployments have caused considerable strain on service members, equipment and our ability to respond to other contingencies. These problems, however, only tell half the story. The Iraq war is also dramatically improving the military’s understanding, training and capabilities in irregular warfare. Since this is the preferred method of Islamic extremists, the experience in Iraq is transforming the military into the force required to help win the Long War.”

The article goes on to make the case that the war is not all bad for the fighting forces, because now they really “get it” that they’re not in a big war against Soviet armoured divisions on the plains of northern Europe.

As a former Peace Corps Volunteer, I find this embarassingly thin gruel. In fact, it borders on noxious.

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Cleland's “Common Sense.”

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“You keep saying that word. I don’t think it means what you think it means.”
–Inigo Montoya, The Princess Bride

I suppose it’s just overkill for me to pounce on Cleland’s over-the-top (even for him) blog post purporting to make the “common sense case” against our complaint against Comcast and Petition for Declaratory Ruling. After all, Dave Isenberg and others have already taken this on. But (a) it helps to restate the facts and focus on the issues, and (b) it gives me a chance to quote Angels by Within Temptation, and I ABSOLUTELY LOVE THAT SONG (In fact, if y’all haven’t done so, scurry to your favorite place to buy music online and download this and their other stuff. I’ll wait . . . .)

Cleland’s claims can be divided into two: whether Comcast’s behavior was “reasonable network management” and whether the FCC Policy statement is enforceable. I shall address each (and get to the music quote) below . . . .

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Time Warner May Pilot Metered Pricing With Easy Consumer Monitoring Tools. Good for now, but bad for ecommerce in the long run.

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As reported by Broadband Reports and now confirmed elsewhere, a Time Warner internal memo indicates Time Warner will pilot a program where it has an explicit bandwidth cap, and users that exceed the cap will pay additional explicit fees — rather like what happens now with your standard cell phone package where you buy a bundle of minutes and then pay for any overages. The pilot will include a website to allow customers to track their usage, moderate their behavior, or buy additional capacity if they wish.

I agree with Dave Isenberg that this is the best way for Time Warner to handle its network capacity constraints and address the supposed 5% of users gobbling 50% of the bandwidth. We can expect some heavy users to move to other networks without caps, but also expect that users that use much less capacity and frustrated by congestion caused by heavy use by others to prefer plans like Time Warner’s because it should produce a less congested pipe overall.

I would be remiss if I failed to note that I was just musing about this the other day, giving me a chance to do another Stephen Colbert I CALLED IT!!! dance.

O.K., shameless gloating over. Analysis below . . . .

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And counting!

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Harold’s post, below, on the subject of ATT’s being [bleep!], is Wetmachine item #1000.

A while ago I came up with the notion of some kind of fireworks display to mark this momentous milestone, but somehow I never got around to it.

The “Nucleus” software that we use to drive this site assigns item numbers not monotonically, but according to some heuristic I cannot figure out. So Harold’s is not necessarily the 1000th blog entry here. But close enough. Harold, you win the booby prize! Which is a lifetime subscription to the Tales of the Sausage Factory RSS feed! Lucky you!

Parsing website stats is an arcane science art perhaps best done under the influence of burning oak leaves. When your referrer log is populated with pornsite spam, and your top search items are things like “freckled breasts” and “Katrina Witt Naked”, which have been driving dozens, or even hundreds of people to this site each month for years, it’s hard to take the numbers too seriously.

Yet even these rough metrics tell you something. According to my records, when Harold made his first post here, in December, 2002, we got 47 visitors on our biggest day, with an average of 26/day for the month. Lately we’ve been getting about 1100/day.

I’ll check back in with yz when we get to item 2000, s’OK?

Oh Canda! Lessons for My Native Land.

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Someone tell me why Canadians seem to be so much smarter than we are, at least on the public policy fronts that I cover. Maybe we should try to convince Michael Geist to take a position at one of the local law schools here in DC?

Whatever it is, two recent developments in Canadian media and information policy highlight that a does of common sense and a willingness by government ministers to (a) actually listen to what people have to say, and (b) learn something from our mistakes.

First, the Candian Radio-Television Commission (CRTC) just announced it will impose new national ownership limits and cross ownership limits on its broadcast media. Why? As stated in the CRTC release:

The trend toward greater consolidation in the broadcasting industry has raised concerns that a large ownership group could achieve a dominant position through acquisitions, which could bring about a reduction in the diversity of local, regional and national content. To address these concerns, the Commission has decided to:

* impose limits on the ownership of broadcasting licences to ensure that one party does not control more than 45 per cent of the total television audience share as a result of a transaction; and
* not approve transactions between companies that distribute television services (such as cable or satellite companies) that would result in one person effectively controlling the delivery of programming in a market.

While I think their national cap is too high, I applaud CRTC for recognizing the need for regulation staring them in the face as consolidation continues to grow. What a far cry from the debate we have in public policy circles in this country, in which regulators vie with each other for who can do more favors for their industry patrons, discuss how to raise ownership limits to permit more consolidation, and argue over whether to deregulate just a little more or a whole lot more.

The second “Canada is smarter than we are” example comes from last month’s succesfull citizen campaign to delay introduction of a “Canadian DMCA”. When Canada’s Conservative government seemed quite willing to acquiesce to industry demand to produce — in a fair use parody of Simpson’s Comic Book Guy — the worsht copyright ever, a grass roots movement organized that apparently shocked the government with its vehemence and popularity with mainstream Canadians. The government delayed introduction of the proposed Copyright Bill until at least the end of this month, where hopefully Canadian common sense will once again send it packing.

Meanwhile, in the United States, Democrats and Republicans join together for bipartisan legislation designed to turn the Department of Justice into the enforcement arm of the entertainment industry, and judges weigh whether the act of copying a legally obtained CD onto your computer for your own personal use constitutes a copyright violation for which you can be fined and/or do jail time.

Oh Canada, why can’t you teach my native land a thing or two?

Stay tuned . . . .

Dave Sez: AT&T Are [Bleep!]

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My friend “Dave” recently moved from San Francisco to Sacramento. Being of the modern mobile generation that has “cut the cord” and lives by the cell phone, Dave wanted to get “naked DSL.” i.e., DSL (or other broadband) without any kind of telephone or video contract (Dave also refuses to pay for cable TV, on the grounds that 99% of the programming “sucks”). To his surprise and disappointment, Dave couldn’t find any naked broadband available in his neighborhood. So he wrote to me, as the known expert on all things broadband. “Isn’t there any way I can just get broadband without a telephone contract?” Dave wrote me in an email.

So I thought about it, and I said: “Is Sacramento AT&T territory?”

“Yeah.”

“Well AT&T has to offer $20 naked DSL, as a merger condition from when they bought BellSouth. Why don’t you try for that.”

So Dave dug around until he found the offer for AT&T DSL until he found the AT&T Yahoo! High Speed Internet Package With No Voice Contract:

Basic 768 kbps $19.95
Express 1.5 mbps $23.99
Pro 3.0 mbps $28.99

We talked, and I recommended the “Express” package as probably the best suited to his needs. Dave went to order it. His reactions below (warning, contains frank language and highly suggestive ASCII)….

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Follow Up On MI PEG Lawsuit

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So the judge heard the motion for a restraining order by Dearborn and Meridian to keep Comcast from migrating PEG channels to digital. The court issued the restraining order, finding that the towns were more likely than not to prevail on several of their issues, that Comcast would suffer no harm from the delay, but that the cities would potentially suffer irreparable harm if Comcast migrated the PEG channels to where most citizens couldn’t see them. (You can find the opinion, the pleadings, and other useful information here.)

On the question of the definition of “basic tier” I raised in yesterday’s post, the court found:

1) Nothing requires a cable operator to offer the basic package as all digital or all analog, so it is more likely than not that Comcast can migrate PEG to digital while keeping broadcast channels analog.

2) However, cable operators must offer the basic tier on equal terms. Requiring rental of additional equipment to get part of the basic tier therefore is more likely than not a violation of law.

A preliminary restraining order is not a final judgment. The court must make a determination on what arguments are “likely to prevail.” But the court may rule otherwise once the questions are fully briefed and argued. Hence, the “more likely than not” language.

But the courts findings produce some oddball results. By implication, at least so far, the court accepts that the obligation to offer a “basic tier” persists even after the FCC finds “effective competition.” But despite what I would think is fairly straightforward legislative language and strong legislative language, the court thinks it more likely than not that cable operators can treat the elements of the basic package in a different way from each other.

I expect fights over the basic package and the meaning of Section 623(b)(8) to become much more common, as cable operators try to migrate more popular programming to digital and look to stop carrying analog after the digital transition. For me, the real question is: “Will the FCC weigh in?” If so, when, and how? Under NCTA v. Brand X (yes, that Brand X), the FCC can weigh in at any time, since a decision by a court deciding the issue does not alter the deference due to the agency. So there’s no rush for the FCC to assert jurisdiction on its own. Cable operators are rather unlikely to rush in and ask the FCC to start a rulemaking to preempt the states on this issue. So will someone else go to the FCC and ask them to resolve the issue? PEG supporters or local governments would be a logical choice, but they don’t exactly have warm fuzzy feelings about this FCC Chairman given his willingness to preempt local franchise authorities to the detriment of PEG and local consumer protection. Especially given the outcome in Michigan (which buys time) and the possibility of Congressional help, I expect the PEG folks to wait and see what the new FCC looks like before going to the FCC.

Broadcasters might also look to get the FCC involved early, rather than wait for a situation to develop. But that seems unlikely. Still, if folks at PBS or folks representing the independent affiliates get spooked, or if problems develop in the field, we may see the broadcasters come in.

Finally, the FCC itself could wake up and notice the issue. But that also strikes me as unlikely.

Stay tuned . . . .

Martin Gets the Ball Rolling On “Blocking” Investigation: What Does It Mean And What Happens Next?

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As always, I am impressed with the ability of so many people to hate whatever Kevin Martin does, and for so many different reasons! At CES, Martin announced that the FCC would investigate allegations of blocking content and determine whether they violated the FCC’s four broadband principles. Comcast pledged to cooperate in any investigation (although, unsurprisingly, Comcast representatives — along with supposed object of Martin’s affection AT&T and other big telcos and cablecos — said at CES they would restructure or eliminate FCC altogether).

As I said in my PK blog post, while details remain unclear, I am “cautiously optimistic” that this will be a good thing. But it did not take long for the folks in the “Martin is a bastard 24/7 crwd” to express themselves. DSL reports doubted this would go anywhere, while the “why ya gotta hate on cable” crowd at Techdirt opined that Martin would never investigate if it were a telco rather than a cable co.

So we flash forward to yesterday, when new developments began to percolate out of the FCC. Of significance:

1) The FCC issued a public notice asking for comment on our Petition for Declaratory Ruling that Comcast’s “network management practice” of messing with BitTorrent uploads violated the FCC’s “Broadband Policy Statement,” which includes a principle that network operators may not block or degrade content or applications. In a separate public notice (but as part of the same proceeding), the FCC also seeks comment on the Vuze Petition for Rulemaking on how broadband access providers handle and shape IP traffic generally. (Copy of Vuze Petition here, copy of our Petition here).

2) Separately, the FCC issued a separate public notice seeking comment on a Petition filed by Public Knowledge and the usual suspects asking the FCC to declare that wireless carriers cannot deny short codes or block text messaging. This goes after Verizon’s high profile “oopsie” of denying a request by NARAL for a short code. Although, as we pointed out in the Petition, the more likely and pernicious problem is with plain old anticompetitive blocking, such as denying a short code to VOIP provider Rebtel.com and denying applications to major banks offering competing services.

3) Comcast confirmed that the FCC has lanched a formal inquiry into whether it violated the FCC’s broadband policy statement. Comcast reiterated that it will fully cooperate with the FCC, and expects any investigation to show that Comcast did not block content and has engaged in legitimate network management practices.

Not bad for a commitment made a week ago. But what does it mean and where will it go from here? Analysis below . . . .

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DOA RIAs: Curl, OpenLaszlo and Web 2.0 Noir

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Over on his ZDnet column Universal Desktop Ryan Stewart, who describes himself as a Rich Internet Application mountaineer, makes his annual predictions about where the Web is going. Prediction number seven caught my eye:

7. The days of smaller RIA technologies are numbered. I hate to say it but I think technologies like OpenLaszlo and Curl will continue to gain traction in some niches but won’t see widespread adoption. Those companies will still bring revenue but Microsoft and Adobe are pushing too hard and putting too many features into their runtimes for the smaller companies to keep up.

I hate to say it but I think he’s right1.

Watching RIA trends play out is a bit like watching a Film Noir movie (DOA comes to mind), where the good guys don’t win and the bad guys prosper– but not because of any particular genius on their part, merely because of inexorable fate.

I observe this particular web-noir movie from the perspective of an extra actually on the screen. I play a guy cut down by a stray bullet for the crime of being in the wrong place at the wrong time. For I was manager of information architecture at Curl from April 2000 until being laid off along with most of the engineering staff in April 2002, and I was the sole doc guy on the OpenLaszlo project from April 2003 until being laid off November 2007 as Laszlo Systems gave a quarter of its staff the axe.

Below the fold, a few brief observations on the Web 2.0 drowning pool. Said observations are undoubtedly greatly corrupted by time and rationalization, so take them with whatever quantity of salt you like. I’m just recording them for my own record.

(1)Note: although Stewart now works for Adobe, he’s always been fair-minded about competing technologies. I don’t see him as a shill.

UPDATE: edited a few sentences for clarity & one new comment at the end, in response to private reactions to this entry.

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Potentially Much More At Stake In Michigan Than PEG — NAB, PBS and Folks Worried About Bundling of Services Better Wake Up And Pay Attention!

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Compared to the primary battles in Michigan, the fight between Comcast and local governments about Comcast’s decision to migrate Public Educational and Government (PEG) channels to digital seems like small potatoes. But potentially, the lawsuit filed by the cities of Dearborn and Meridian in local federal court could have huge impact on how cable operators carry broadcast television and even how they bundle video services with their voice and broadband offerings.

For those just tuning in: Comcast has decided take advantage of Michigan’s franchise reform law and forcibly migrate PEG channels to digital tier, which will require anyone who wants to see PEG channels to get a digital box and will put the PEG channels waaaay up the dial where channel surfers rarely tread. This has prompted angry protests by city officials, and even a reprimand from House Commerce Chair Rep. John Dingell (D-MI). While other cable operators have used such tactics in the past, Comcast appears to be the first operator to do this for an entire state at once.

As a result, Dearborn and Meridian challenged Comcast’s right to move the PEG channels without consent by the localities in federal court. But while this focus remains on PEG, it goes much further. In 1992, Congress mandated that cable operators must offer subscribers a “basic tier” that consists of the broadcast channels and PEG channels. Congress also prevented cable operators from bundling this “basic tier” with any other service or “buy through.”

For reasons having to do with the Telecommunications Act of 1996, cable operators may no longer need to offer a “basic tier.” But if that’s true, what does that mean for broadcasters? Can cable operators forcibly migrate broadcast channels in the same way they claim they can forcibly migrate PEG? And — looking ahead — does that mean that cable operators will have the freedom to change how they bundle packages? Right now, cable operators generally offer their basic video product and then offer all manner of additional services. But what happens if the “basic tier” requirement is really dead? Will we see cable operators get more aggressive, forcing customers to take additional services if they want video programming?

From where I sit (which is really just looking at the plain language of the statutes), it’s a real muddle. I’m glad I’m not litigating. But if I were the NAB and PBS, I’d start paying real close attention here. Otherwise, they may wake up and discover that they are also going on a forced march migration to digital, even if they can keep their channel position and not end up in the 900s.

Analysis below . . . .

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