Author: Harold

H.R. 2666: House Prepares to Give ISPs License To Price Gouge (Even More).

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The House Rules Committee has scheduled a floor vote for Friday April 15 (today!) for an amended version of H.R. 2666 aka the “No Rate Regulation of Broadband Internet Access Act,” aka the “Twice The Evil of the Beast” Act. Ostensibly, the bill is supposed to codify the commitment made by President Obama, FCC Chair Tom Wheeler, and just about everyone else that the FCC would never use the classification of broadband as a Title II service to engage in “utility style rate regulation.”

 

Surprise! As I explain in a much shorter version over here, H.R. 2666 basically removes the authority of the FCC to take action on any complaints relating to overcharges, fees or other nasty practices that broadband providers may do to overcharge you — provided they disclose them honestly (and, since there is not exactly a lot of competition, disclosure doesn’t help much). It also effectively strips the FCC of its authority to address zero-rating — even in the worst anticompetitive cases where a provider zero-rates its own content while applying its broadband cap (however discriminatory) to rival services. Along the way, it renders various merger commitments involving offering low cost service to the poor unenforceable and has lots of other nasty impacts.

 

Needless to say, the collective trade associations of the broadband industry are thrilled.

 

That’s not just me talking. That’s from the President’s veto threat message. Additionally, this group of 50 public interest groups think H.R. 2666 is a very, very bad bill, and 30 groups signed on to this letter explaining how H.R. 2666 will screw up privacy protection by letting ISPs charge you for it (aka “pay for privacy” like this from AT&T).

 

I’m going to repeat a pitch here I will repeat often: If you think letting broadband providers price gouge and undermine net neutrality is a bad thing, please call your Representative in the House directly, or use this link to go to BattleForTheNet.com and call your Representative (they have a tool to help find your Rep and have a script — but use your own words, that is always more convincing.

 

Made your call? Good. See below for lots more details so you can explain to your friends why they should call. . . .

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If McConnell Trusted His Own Party, He’d Follow the “Bork Precedent” and Hold A Vote.

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There are a lot of interesting questions about the possibility that the President will appoint Judge Sri Srinivasan to replace the late Justice Antonin Scalia on the Supreme Court. For example, what happens if the D.C. Circuit has not yet voted out the net neutrality case? If Srinivasan is nominated and confirmed, would he be able to participate in an appeal of the net neutrality case? I, however, do not propose to answer either of those questions here.

 

No, I’m going to take a moment to urge Republicans to do the right thing and follow the Bork precedent of which they make so much — have a vote and reject a nominee you don’t like. That’s what the Constitution says ought to happen, and it’s a perfectly legitimate thing to do.  The meaning of “with advice and consent of the Senate” has changed a bunch over the years, but it is clearly intended as a restraint and means of forcing cooperation between the Senate and Executive, as discussed by Hamilton in Federalist No. 76.  (Hamilton thought the power to reject appointments would be little used. Unfortunately, George Washington was right about the corrupting influence of party factionalism.)

 

So why have Senator Mitch McConnell (R-KY) and Senator Chuck Grassley (R-IA), the Chairman of the Judiciary Committee, refusing to hold even a hearing on the as-yet-unnamed Obama Appointee? Fear. They cannot trust their own party to toe the line, especially the 8 Republican Senators facing difficult re-election fights in swing states.

 

While the check on the President is the need for advice and consent of the Senate, the check on the Senate is that they do their work openly, with each member accountable to their state. If Republicans really believe that “the people deserve to decide,” they would vote to reject the nominee and let “the people decide” if they approve of how their Senator voted. But of course, that would mean letting the people actually talk to their Senators while considering the vote, and potentially voting against those Republican Senators who disappointed their independent and swing-Democratic voters.

 

So the GOP elite leadership have conspired once again to take matters out of the hands of the people. Not by following the Bork precedent, which got a floor vote. Not even by filibustering the nominee, as the combined Republican/Dixicrat alliance did for Abe Fortas. No, the GOP leadership have such little trust for their own party, and the voters, that they will not even let the matter come to the floor.

 

More below . . .

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What You Need To Know To Understand The FCC National Broadband Report.

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The FCC is required by Congress to do lots of reports. Of these, the one that gets the most attention is the annual Report on broadband deployment under Section 706 of the 1996 Telecommunications Act (47 C.F.R. 1302). Sure enough, with the latest report announced as up for a vote at the FCC’s January open meeting, we can see the usual suspects gathering to complain that the FCC has “rigged the game” or “moved the goal post” or whatever sports metaphor comes to mind to accuse the FCC of diddling the numbers for the express purpose of coming up with a negative finding, i.e. That “advanced telecommunications capability” (generally defined as wicked fast broadband) is not being deployed in a timely fashion to all Americans.

 

As usual, to really understand what the FCC is doing, and whether or not they are actually doing the job Congress directed, it helps to have some background on the now 20 year old story of “Section 706,” and what the heck this report is supposed to do, and why we are here. At a minimum, it helps to read the bloody statute before accusing the FCC of a put up job.

 

The short version of this is that, because between 1998 and 2008 the FCC left the definition of “broadband” untouched at 200 kbps, Congress directed the FCC in the Broadband Data Improvement Act of 2008 (BDIA) (signed by President Bush, btw) to actually do some work, raise the numbers to reflect changing needs, and take into account international comparisons so as to keep us competitive with the world and stuff. This is why, contrary to what some folks seem to think, it is much more relevant that the EU has set a goal of 100% subscription of 30 mbps down or better by 2020 than what is the minimum speed to get Netflix.

 

Also, the idea that the FCC needs a negative finding to regulate broadband flies in the face of reality. Under the Verizon v. FCC decision finding that Section 706 is an independent source of FCC authority to regulate broadband, the FCC gets to regulate under Section 706(a) (general duty to encourage broadband deployment) without making a negative finding under Section 706(b) (requirement to do annual report on whether broadband is being deployed to all Americans in a “reasonable and timely manner”).

 

So why does the FCC do this report every year if they already have regulatory authority over broadband. Because Congress told them to do a real report every year. This is what I mean about reading the actual statute first before making ridiculous claims about FCC motivation. Happily, for those who don’t have several years of law school and are ld enough to have actually lived through this professionally, you have this delightful blog to give you the Thug Notes version.

 

 

More below . . . .

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My Amazingly Short (For Me) Quickie Reaction To Oral Argument

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So, I suppose you’re wondering, how did oral argument went.  Since we have less than an hour before Shabbos, I will give you all my short version. You can download the recording from the D.C. Circuit here: Part I (wireline), Part II (wireless, First Amendment, Forbearance).

 

As always, the usual disclaimers apply. It is always perilous to try to guess from oral argument how things are going to go. Judges may ask a lot of questions to explore options, or they may let one judge pursue a line of inquiry while hanging back.  And there’s lots of issues that never get discussed that are part of the appeal and will get decided based on the written record. Or the judges may be leaning one way, but when they start drafting and hasj things out further they change their mind.

 

Taking all that into account, here are my impressions based on sitting in the front row listening and watching the judges and attending to all the nuances, as filtered to my obvious bias in wanting to see the FCC affirmed.

 

More below . . . .

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Net Neutrality: Tomorrow Is The Judgement Day (Well, Oral Argument).

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So here we are. One day more until oral argument on the FCC’s February 2015 decision to reclassify broadband as a Title II telecom service and impose real net neutrality rules. We definitely heard the people sing — 4 million of them sang the songs of very angry broadband subscribers to get us where we are today. But will we see a new beginning? Or will it be every cable company that will be king? Will Judges Tatel and Srinivasen and Senior Judge Williams nip net neutrality in the bud? Or will we finally meet again in freedom in the valley of the Lord?

 

You can read my blog post on the Public Knowledge blog for a summary of the last 15 years of classification/declasification fights, rulemakings, and other high drama. You can read my colleague Kate Forscey’s excellent discussion of the legal issues in this blog post here. This blog post is for all the geeky Tales of the Sausage Factory type factoids you need to know to really enjoy this upcoming round of legal fun and games and impress your friends with your mastery of such details. Thing like, so how do you get in to the court to watch? What opinions have the judges on the panel written that give us a clue? What fun little things to watch for during argument to try to read the tea leaves? I answer these and other fun questions below . . .

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A Reflection on the First Thanksgiving.

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It is fashionable now to conflate the 250 year American experience between the European settlers and the Native Americans as simply one of oppression and displacement. Or, as one friend put it: “I’m Thankful that a bunch of European religious fanatics came over and displaced the native population.”

But it wasn’t like that at the First Thanksgiving, or for about 35 years thereafter. In failing to appreciate the efforts of English settlers and Wampanoag tribes in the region to live together in peace in the first three decades of English migration to Plymouth, we ignore both that a better world was possible — and that we have the capacity to build a better world today . . .

 

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In Memoriam: Wally Bowen — Internet Pioneer, Community Activist, and A Hell of God Guy.

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Last week, we lost a true leader for rural communities, a true champion of social justice in communications policy, and a personal friend and inspiration.  Wally Bowen, founder of Mountain Area Information Network, died of ALS (aka “Lou Gehrig’s Disease”) on November 17 at the age of 63.

You can read his official obituary here. As always, such things give you the what and the where, but no real sense of what made Wally such an amazing person. I don’t have a lot of personal heroes, but Wally was one. Simply put, he gave the work I do meaning.

It’s almost Thanksgiving, and I am truly thankful for the time we had with Wally on Earth, even if I am sorry that it ended too soon. I elaborate below . . .

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LTE-U v. Wi-Fi: The Abreviated Version

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I recognize that Part I and Part II of my LTE-U/Spectrum Game of Thrones ran somewhat long and dense, even by Tales of the Sausage Factory standards. So for those of you looking for something a bit lighter, I’ve prepared an abbreviated version — this time based on a different epic saga involving the supernatural, mysterious circumstances, and . . . Scoobie snacks?

Ruh roh! Time to solve another groovy mystery below . . .

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My Insanely Long Field Guide To the LTEU Dust-Up Part II: A Storm of Spectrum Swords.

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The Vorlons have a saying: “Understanding is a 3-edged sword.” In this case, the three edges are the Wi-Fi dependent, the LTE dependent, and the Federal Communications Commission (FCC).

 

Last time on Spectrum Game of Thrones (hereinafter “SGoT”) I spent 6500 words discussing the first two edges of the sword. The Wi-Fi dependent side has strong reason to suspect the LTE-U crowd of either reckless indifference or actual malice toward deployment of Wi-Fi based streaming services in the newly refurbished U-NII-1 band up in 5 GHz. Even if the Wi-Fi Dependents could trust the motives of the LTE-U crowd, what happens if everyone is wrong about the ability of the two technologies to co-exist? Under the current structure, the Wi-Fi dependents would be screwed, and they could do nothing about it. So the rational Wi-Fi Dependent must fight tooth and nail against deployment of LTE-U.

 

It doesn’t help that the Wi-Fi Dependents know that this is an utterly impractical solution for the long term. Unless there is a way to answer the two questions central to the survival of Wi-Fi streaming in U-NII-1 in the face of LTE-U (what happens if something goes wrong, what happens if somebody deliberately does something bad post-deployment), rational Wi-Fi dependents have no choice but to fight deployment.

 

The LTE-U crowd, for its part, has good reason to want to deploy LTE-U and has a legitimate gripe that Wi-Fi Dependents cannot keep saying no without defining the conditions for yes. If we admit the possibility that we can deploy LTE-U consistent with reasonable use of Wi-Fi (which everyone does), then there has to be some way to actually deploy it. And while I savor the fine irony of seeing licensees in the same position I have been in countless times, it is still crappy policy. Also, unlike me and other would-be new entrants, the wireless guys and Qualcomm have enough political muscle to make the current stalemate untenable. Eventually, they will get to deploy something.

 

Which brings us to the third edge of the Vorlon sword of understanding – the FCC. As I shall explain below, government actually is the solution here. Not by imposing a standard or a rule, but by providing both sides with a process for resolving the problem. As a happy side effect, this will also help resolve the general class of problems that keeps coming up on how to manage more and more intense use of the airwaves. Just like we all learned in high school math, and most of us forgot about 30 seconds after the exam, you solve an intractable problem by trying to break it up and simplify it into solvable problems.

 

The only problem is, and I know most people are not going to believe me, the FCC actually hates asserting and clarifying its authority. Yes. Really. Which gives rise to the question of whether the FCC actually has the willingness to do what needs to be done and create a general solution, or if they will continue to try to do the minimum possible, what I call the “Snow Goons Are Bad News” approach immortalized in this classic Calvin and Hobbes strip.

 

So, as we get to SGoT 2: Storm of Spectrum Swords, we come to another dramatic turning point. Will the Wi-Fi Dependents and the LTE-U Dependents see the wisdom of allowing the FCC assert authority over the land of Spectrumos? Can the FCC be persuaded to fulfill its destiny and its duty? And will the anti-Regulatory Zombies from beyond the Wall crash the party and devour both Wi-Fi and LTE-U because of their hatred of the FCC?

 

More below . . .

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My Insanely Long Field Guide To The LTE-U Dust Up. Part I: Spectrum Game of Thrones.

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I keep reading about the LTE-U/LAA dust up and deciding that, as I predicted back in January, this has become the epic Spectrum Game of Thrones. Which means it’s time for an epically long series of Insanely Long Blog Posts.

 

For those just tuning in, I can sum up this issue as follows: should we worry that wireless carriers are looking to deploy a protocol developed for the 4G licensed world (LTE, or Long-Term Evolution) over unlicensed spectrum (called “LTE-U” for LTE over unlicensed or “Licensed Assisted Access,” for reasons I explain later) will “kill” Wi-Fi — for various values of the word “kill.” You can read some stuff on this from my Public Knowledge colleagues here and here.

 

Let me give you the headline version:

 

  • Can you build a version of LTE-U that plays nicely with Wi-Fi? Yes!
  • Can you build a version of LTE-U that looks like it should play nicely but when you deploy it over hundreds of millions of devices it would stomp all over Wi-Fi and crush it flat totally by accident? Absolutely!
  • Can you make and deploy a version of LTE-U where it plays nicely unless the mobile carrier decides it doesn’t like competition from Wi-Fi first providers of rival mobile video and voice services? You bet your sweet patootie!

 

A lot of the argument you see in the press and from the LTE-U supporters has to do with whether the LTE-U Forum (more on them later) have the best interests of wireless users at heart, have gone to great lengths to make sure LTE-U will play nice with Wi-Fi, have released their specs on the LTE-U Forum website, etc. etc. But none of this addresses the points above. What happens if you put this out there and stuff goes bad, either by accident or intentionally.

 

To understand the thinking here, imagine Qualcomm and the rest of the LTE-U Forum are Iran building a nuclear reactor for peaceful purposes. Google and the Cable industry (and us public interest types, for all that anyone notices) are Israel and the Sunni Arab states like Saudi Arabia and Egypt. Iran/LTE-U forum maintains they are building their nuclear programs for peaceful purposes. GOOG/Cable asks how they can be certain, given that the same technology might (a) screw things up accidentally; and, (b) give the carriers the capability to screw things up intentionally, if they ever start to feel the competitive heat. Qualcomm, LTE-U Forum, et al. are shocked, hurt and offended that anyone could even suspect such a thing, despite everything Qualcomm has done in the last 3 years to turn LTE-U into a “Wi-Fi killer”, and despite some of the biggest global carriers telling 3GPP to shut out non-carriers from first generation of LTE over unlicensed. According to Qualcomm, the only reason anyone would question the peaceful intentions of LTE-U Forum is for anticompetitive reasons.

 

But here’s the complicated thing. As I’ll explain below, it’s not like LTE on unlicensed is intrinsically bad. There are lots of really good pro-competitive reasons for carriers to start using LTE on unlicensed. Heck, it may ultimately turn out that a stand alone version of LTE on unlicensed is as useful (or even more useful) than Wi-Fi is today. Who knows? That’s the beauty of the unlicensed band — innovation without permission and all that good stuff.

 

This puts the Federal Communications Commission (FCC) in a rather awkward position. On the one hand, the FCC recognizes the real problem of LTE-U, accidentally or intentionally, messing up Wi-Fi. Additionally, while Wi-Fi is in the unlicensed band and must therefore accept whatever interference comes its way, is only ONE of many, many protocols, etc., you don’t let companies with the obvious incentive to screw up Wi-Fi develop and deploy a potential Wi-Fi killer with no safeguards. But since the success of the unlicensed space comes from its flexibility and easy deployment, how do you not ultimately approve some version of LTE-U/LAA? Are we going to lock in Wi-Fi as the protocol for unlicensed the way LTE is the protocol for mobile wireless? That could be just as awful for the future of innovation as letting LTE-U/LAA trash the place.

 

To make sure all you Tales of the Sausage Factory Readers know what’s going on, I bring you yet another in my occasional “Insanely Long Field Guide” series. Below, I cover everything from a brief refresher on what the heck is “unlicensed spectrum” v. “licensed spectrum,” the history of what’s going on here, and why I focus on Qualcomm rather than the wireless carriers as the chief bad guys here. However, as this is too long even for me, I will need to break this up into two insanely long pieces. In Part 2, I’ll explain about the FCC, why it got involved, why this is so complicated from the FCC’s perspective, and what the FCC can do about it.

 

But first, our insanely long background briefer below . . . .

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