Month: September 2008

Evaluation of the Comcast/BitTorrent Filing — Really Excellent, Except For The Gapping Hole Around the Capacity Cap.

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After Comcast surprised me with their filing on Friday, I really wanted to believe they had turned a corner. Not to anthropomorphize too much, but I had hoped that Comcast had gotten such a bad public relations disaster out of this that they were determined to work so hard to be good little puppies that even a Democratic Congress, Democratic President, and Democratic FCC would believe that the we no longer needed rules. And I would be totally down with that (their behaving that is, we still need rules). I love it when companies learn their lesson and stop misbehaving. Remember, public policy is (IMO) all about result. If swatting Comcast on the nose like a naughty puppy gets them to stop pooping on their customers, then they deserve a pat on the head and a tummy yummy treat when they behave.

But I’m having a “Columbo moment” here. For those who did not grow up in the 1970s and therefore do not recognize the reference, Columbo is a television detective who every episode goes to talk to the chief suspect about the circumstantial evidence, and the chief suspect always has a fully prepared and perfect alibi. On the way out, apparently as an afterthought, Columbo will turn around and say: “there’s just one thing that bothers me.” This question on a minor inconsistency turns out to open a gaping hole in the suspect’s alibi and — in classic television fashion — allows Columbo to solve the crime by the end of the show.

I do not pretend there is any mystery here left to solve. Comcast’s filing very neatly explains their past practices, how we reached this point, and how Comcast intends to change its practices. It includes benchmarks for performance and a plan for informing its subscribers. It looks exactly like what the Commission ordered.

There’s just one thing that bothers me. Footnote 3 of Attachment B. Comcast stresses in footnote 3 that its 250 GB per month cap is not a network management policy, is not a replacement for its current network management practices, and therefore is not actually a proper subject of this disclosure report. Now why did they go out of their way to say that?

If you will excuse me, sir, while I adjust my raincoat, a bit more analysis below . . .

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ESPN360.Com Locks Up It's Content — Let The Fragmentation Games Begin!

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There’s been a lot of back and forth over whether letting broadband providers lock up content, or content providers lock out ISPs, is a good thing or a bad thing. And now, ESPN360.Com is going to kick off the fragmentation games and let us all find out.

It is a fine old Republican free market anti-deregulatory tradition to deregulate critical infrastructure and hope for the best, pooh-poohing doomsday predictions as ignorant exaggerations and fear mongering by business-hating regulation-loving quasi-commies. And since this philosophy worked so well with our financial sector, we have now moved it to the next major engine of the economy — broadband.

I am so excited! For those who have developed a taste for Lehman Bros-type thrill rides, the ESPN360.com deal will bring back fine memories of your first subprime derivative. You (and the rest of us along for the ride) can look forward to the thrill, the excitement, the dramatic highs and lows of playing high stakes roulette with our digital future. True we’ve lost our mortgage money (literally and metaphorically) playing “follow the Subprime queen.” But don’t worry. As any economist will tell you, the combination of a lack of information, high transaction costs, complex interrelated markets, and poorly understood network effects is just tailor made for that wild west anything goes atmosphere that made all them miners rich in the Sacramento gold fields!

Bet our critical infrastructure? How can we afford NOT TOO!!!

Details below . . .

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Bush and Paulson to Nation: “UP AGAINST THE WALL, MOTHERFUCKERS!!”

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If you’re not reading Atrios as the class war goes into high gear (the money class has the virtual Panzers and hellfires fired from drones and legions of off-the-books Blackwater goons, but to quote the late great tripped-out lizard king himself, ‘you got the guns but we got the numbers’), you really should be. I love this dog bark: Nationalize it all, baby. It’s Kapitalism with a kapital k! Fuck yeah! And don’t forget to bail out Phil Graham’s foreign bank while you’re at it.

This is fun! The Republicanism of the Bush/Cheney/Rove/Norquist era has always been about nihilism, the pure joy of fucking shit up, vandalism, destruction, and setting loose the dogs of war. But until now they’ve pretended it was about other stuff. As the movie comes to its climax, Dracula is showing his fangs: no more pretense of being a misunderstood minor aristocrat from foreign Transylvania. It’s bloodsucking time, suckas, and you sure look tasty to me!

Man, I’ve got to find my old Jefferson Airplane records. There’s a song a need to hear, the perfect soundtrack for this rape and plunder, the New Republican Anthem :


We are forces of chaos and anarchy
Everything they say we are, we are
And we are very
Proud of ourselves
Up against the wall
Up against the wall, motherfucker
Tear down the walls
Tear down the walls

But please, President Bush, don’t be so totally mean. I mean, don’t bogart that joint, dawg. Everybody needs to get toked up to watch this show, dontcha think?

I Am Pleasantly Surprised By Comcast Complaince, But Am Still Nasty And Suspicious By Nature.

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Well, after saying that while Comcast might fully comply with the FCC’s requirement to report on September 19, but I expected them to play games instead, Comcast handed me a very pleasant surprise. Not only do they appear to have made a thorough disclosure of their current network management practices and their future network management plans, not only have they submitted the required compliance plan with benchmarks, but they actually served me with an electronic copy. As I pointed out last time, this last was not required but is generally good form.

The downside, of course, is that I must go and actually read the filings. That nasty suspicious nature they beat into me at law school rears its ugly head again. Still, it’s a “problem” I enjoy having so I can’t really complain.

But it looks like Comcast has decided that its best interest lies in complying and getting this behind them (with the exception, of course, of the Petition for Review). While I am by no means ready to lower my guard and drop my own Petition for Review (that nasty suspicious nature again), I give credit where it belongs. At first glance, Comcast appears to have complied as thoroughly as I could wish. Assuming this bears out after proper verification, I hope I am pleasantly surprised a second time when Comcast complies on schedule.

Stay tuned . . . .

NPR takes its cue from Howie Carr: Blame it on the Negroes!

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The other day I was listening to the exasperating Howie Carr’s talk show. Carr is a Boston-based populist Republican who purports to be an Independent. Like all Republican talk-show hosts, he’s an asshole. However, he does have his good points. For one thing, he took on the corrupt and dangerous Bulger brothers, risking his life to do so (Whitey Bulger is the model for the Jack Nicholson character in The Departed). For another, Carr, who is Catholic, took on the Catholic Church over the child rape scandal and helped drive Cardinal Law from our shores. And finally, he is relentless in exposing corruption and hypocrisy among Democrats in office, especially those in state or city offfices. In a corrupt one-party state like Massachusetts, this is a valuable service.

But he’s basically a Republican shill, and his commentary on the Big Shitpile crisis has been horrible. Last week he was going on and on about how the problem was that so many mortgages had been written for poor people in innner cities (Black people, that is, by obvious implication) who got in over their heads and defaulted, so now banks were failing and Wall Street could collapse, taking our whole way of life with it. And all because of the Negroes! And the Libruls, of course, who forced the banks to make these loans by way of “anti-redlining” laws promoted by Joe Kennedy and his ilk.

And I heard similar stuff on National Public Radio yesterday.

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Ayn Rand in Heaven

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Ayn Rand was a muddle-headed thinker who wrote wooden prose, “novels” that were really merely polemics .1 She maintained the beliefs that all wealthy people merited their wealth, that all poor people merited their poverty, that selfishness was a virtue, that the myth of Robin Hood was pernicious because Robin Hood stole from the rich and gave to the poor. Because she did not believe in history (or complexity or nuance), Rand did not count as important that Robin Hood lived during feudal times. In her philosophy, it does not matter to her how wealth and poverty were distributed in feudal times, nor how the wealthy got wealthy. Her fictional world is ahistorical. In her world, government is synonymous with force, but in her worldview, the only legitimate use of force is to take from the poor and give to the rich. She loathes democracy and thinks well of plutocracy. The current Bush/Cheney government of plutocrats would be very much to her liking, I think.

She is a high priestess in the Cult of the Market Gods.

Ayn Rand’s writing is known be esteemed by, among others, Alan Greenspan (“the whore”, as my father calls him), and by impressionable teenage boys with little social success. I don’t know if Dick Cheney is a fan of Rand, but he is the epitome of a Randian hero.

Anyway, Rand is dead, presumably in Heaven. From whence she must be beaming down upon us with great joy at the developments of the past few weeks, when a hundred billion dollars was taken from the treasury and given to the investor class, all in the name of “stabilizing the market” (Market gods angry! Market gods want eat money! Must feed market gods! Paulson! Bernanke! Feed market gods more money! Now!) The wealth transfers of the “Resolution Trust Corporation” bailout of the S&Ls under the Reagan regime, the Bear Stearns and Fannie Mae/Freddy Mac handouts of more recent times were as mere hors d’oeuvres before the meal of the Great Investor Class Bailout of 2008. It’s about time for a Randian beatification or maybe even apotheosis, wouldn’t you say.

UPDATE: I forgot to include a link to this diary entry over on Daily Kos, which got me thinking. I agree with the post 100%.

1. When the woman who is now my wife and I were first dating, we found ourselves talking about Ayn Rand novels one afternoon. I had read Atlas Shrugged and one or maybe two others, but not The Fountainhead. She summarized it for me in one memorable sentence: “In this one he’s an architect.” Really, if you’ve read one of her novels, you’ve read them all.

What Will Comcast Do Today? First Compliance Check On Comcast/BitTorrent Order.

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Back on August 20, the FCC released its Order resolving the complaint against Comcast for blocking P2P protocols. As part of the remedy, the FCC ordered Comcast to provide a full report on its current “network management practices” within 30 days, along with a transition plan for how it intended to manage traffic after it discontinued its current practices. The FCC then invited Free Press and anyone else interested to keep a sharp eye on Comcast.

Comcast has sworn up and down that it will comply with the FCC’s Order and it is only appealing in the D.C. Circuit as a matter of principle. I, nasty cynical public interest dude that I am, so doubt this noble intention that i have filed a law suit of my own to get the FCC to clamp down on Comcast now. So, here we are at last on September 19. What does Comcast do?

Comcast has a range of options. Comcast could refuse to comply, forcing the FCC to take action and potentially giving Comcast grounds to go to the D.C. Circuit for an emergency stay. I think that pretty unlikely, given what a big deal Comcast has made about complying.

Comcast could fully comply. But, to paraphrase Arlo Gutherie, that isn’t very likely and I don’t really expect it.

What I expect is for Comcast to file something incomplete, possibly with a request for the FCC to protect its proprietary data. But more likely they will file something that will be just enough compliance to present Kevin Martin with a nasty political choice: Does he enforce the letter of Order and go in guns blazing against Comcast, knowing that Comcast will make great political hay of his supposed “vendetta” against them? Or does he let Comcast thumb their noses at him and — in addition to the humiliation factor — have public interest groups question whether he really intend to enforce that end of the year deadline and thus call his hard-won consumer protection credentials into question? The situation is further complicated by the internal politics of the Commission. Whichever choice Martin makes (and he gets to make it himself, since it is an enforcement action and not subject to a vote of the full Commission), it is almost certain that two Commissioners will call him on it publicly. McDowell and Tate are almost certain to regard whatever fig leaf Comcast files as sufficient, whereas Copps and Adelstein will likely raise a hue and cry if Martin lets Comcast get away with filing an incomplete report.

As an aside, I also expect Comcast to file after close of business and to do so by hand rather than electronically, so that the content is not immediately accessible. I also do not expect to get a service copy, despite being counsel to complainants. That’s perfectly legal of Comcast, as it can take the position that this is a report to the FCC and not a pleading that needs to be served on the complainant or complainant’s counsel. But it does mean I don’t expect to see what Comcast actually filed until sometime next week.

Happily, I put my trust in the advice of the Bible and do not put my trust in princes — or FCC Commissioners. In this case, the pending Petition for Review gives us a certain leverage, and Comcast will have to consider that it will have a tough time arguing my Petition is moot and pointless when they are not actually in compliance with the FCC’s Order.

Perhaps I misjudge Comcast. It would certainly make my life easier if they just complied and filed something open that detailed their past practices and explained how they planned to go forward (including details of he 250 GB cap). In particular, I very much want to know if Comcast intends to exempt its own content from the 250 GB cap. That would be rather anticompetitive, and without any actual rational connection to the stated need to reduce last-mile congestion. Comcast originated packets running from the head-end to the subscriber take up as much capacity as non-Comcast originated packets.

See, there goes that nasty and suspicious mind of mine again. Still, I hope I’m wrong and Comcast comes clean.

Stay tuned . . . .

This Is Ready From Day 1?

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In his most recent emphatic response to the financial crisis that cannot in any way be blamed on the former Chairman of the Senate Commerce Committee (because really, it was those bozos over at Banking, Housing and Urban Affairs and possibly the folks over at the Judiciary’s Subcommittee on Antitrust), former Deregulator turned Regulatory Hawk John McCain told a cheering crowd of supporters that if he were President he would fire SEC Chairman Christopher Cox.

“The chairman of the SEC serves at the appointment of the president and in my view has betrayed the public’s trust,” McCain said. “If I were president today, I would fire him.”

Firey, determined, definitely a stern rebuke to the Bush Administration and its lackeys who — although confirmed by McCain and the rest of the Republican Senate back in 2005 despite nasty bad bad partisan allegations that Cox had been involved in some shady investment schemes — certainly have nothing to do with McCain the Reformer!

Except, of course, that the Chairman of the SEC does not serve at the pleasure of the President and cannot be “fired,” only impeached by Congress. The President can “demote” Cox by redesignating someone else on the Commission as Chairman — which would probably prompt a Chair to resign before letting that happen. But still, saying you would fire someone you have no authority to fire? This is ready from Day 1?

I suppose I could give McCain the benefit of the doubt and assume he knows the actual law, and that he was just shorthanding “I can’t actually fire him, but I would certainly embarrass him and harass him out of a job faster than a Wasilla Librarian who refused to censor books!” To the more dramatic “I would fire him and then be all embarrassed when I was told I can’t actually do that.” But either way, it’s a pretty stupid response when McCain spent all his time as Chair of the Commerce Committee perfectly happy with the way the SEC regulated the financial sector. (I know, I know, wrong committee, not my fault . . . .)

Stay tuned . . . .