Author: Harold

A Happy New Year From The Kosher Contingent In The Sausage Factory

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Tonight, the Jewish month of Tishrei will begin. Tishrei ushers in a season of numerous Jewish holidays, starting with the ones everybody has heard of (Rosh Hashannah) and concluding with the ones people are convinced we are making up to get out of work (Shmini Atzeret/Simchat Torah). Unless you live in Israel, or it comes out as one of those years when the holidays overlap with the weekends, it tends to make for a very, very compressed month on the secular side. As a result, I expect to post a heck of a lot less than usual this month.

I just want to wish regular readers a happy New Year and trust that those of other religious faiths will forgive the hubris of those Jewish people — including me — who believe that (a) God is judging the entire world (including you guys) this Tuesday and Wed.; and, (b) the entire world hinges on our showing up in Synagogue on time to put in a good word for everyone.

And, btw, a happy Eid ul-Fitr to those celebrating that this new moon as well.

Stay tuned . . . .

Waxman Gets It Right On USF Reform –Use Subsidies To Open Networks.

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Although it doesn’t have a chance of passing this Congress, particularly with the utter gridlock over the bail out, but I gotta give a shout out to Rep. Henry Waxman (D-CA) for his targeted approach to solving the roaming problem in wireless. The proposed bill, H.R. 7000, says that any wireless provider that takes Universal Service Fund (USF) money needs to provide roaming to all other carriers “at just and reasonable rates, consistent with Sections 201 and 202” of the Communications Act. It does not require tariffing or rate regulation. It refers disputes over whether the terms are reasonable or the technology technologically compatible to the FCC, to handle under its well developed wireline procedures.

An entity can opt out of the program at any time by saying it no longer wants high-cost USF subsidy. But if you take government money, you need to provide roaming at just and reasonable rates.

And here is the kicker that makes it effective. The obligation to provide roaming applies to the entity accepting the USF, and any affiliates. In other words, if you have a rural subsidiary of one of the major carriers, then that carrier has to enter roaming agreements for its entire network. So if AT&T or Verizon are getting subsidies for “rural affiliate co.,” taking the money would require them to do roaming agreements on reasonable rates throughout their systems nationally. Don’t like it? Either stop taking public money or sell the rural carrier off to someone else who will do reasonable roaming.

I expect critics to say that this will mean wireless rural carriers will go under and the only thing to do is give wireless carriers money with no strings attached. I am dubious myself. Yes, the larger carriers may value their control over roaming to divest rural carriers. But there are plenty of mid-size carriers or small carriers willing to absorb these companies in exchange for federal subsidies who won’t mind making roaming agreements. Nor am I so convinced that the major carriers will actually decide they’d rather forgo the considerable subsidies they get now simply to preserve their control over roaming. Besides, if excluding parties from commercially reasonable roaming agreements is such an important element of the business model of major carriers, we have a bigger problem that needs to be more broadly addressed.

For too long, we’ve succumbed to the twin arguments that we must subsidize business to get policy goals, but we cannot actually demand anything in return because that would scare away the shy little beasties we are trying to coax, cajole and outright bribe into good behavior. I think it’s time to test that theory a bit. Although I’m doubtful the Waxman bill goes anywhere in the current Congress, I can hope that when Congress reconvenes in 2009 it will be reintroduced and given serious consideration.

Or instead, perhaps carriers will see the writing on the wall and try to solve this problem at the FCC before Congress reconvenes. Either way, its a good bill that nudges us closer to a more pro-competitive roaming policy.

Stay tuned . . . .

JAPO (Jewish American Prince/Princesses for Obama) Promises To Get Designer Boots On The Ground For Campaign.

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Alright already! So you’re a fellow landsman who is getting all faklempt because your grandparents think that someone named “Barack” is a Moslem even though you keep pointing out to them that Israel had a Prime Minister named Barak and that the name also comes from the story of Deborah in the Book of Judges? And you have some free time over Columbus Day weekend? Mazel tov! Have I got a deal for you . . .

You need to join the Great Schlep. No, I’m not talking about taking the subway from Park Slope to Midtown! The Great Schlep is all about getting all the young Obama peshers to talk the Hilary altercockers by having them visit their grandparents in Florida (and elsewhere! You think you should forget your grandmother in Cleveland just because she didn’t move to Miami with the rest of her Haddasah chapter? Shame on you!) to schmooze about Obama and how for a guy with a goyishe kop, he’s really a mensch who isn’t going to sell out Israel or turn your condo over to the schvartzes for reparations for “stuff I shouldn’t even feel guilty about because we were in a schtetle in Odessa during slavery and believe me it was no picnic and besides your mother did all that marching back in the sixties so why is it my fault I’m asking.”

Will it really work? Nu, could it hurt? So the worst thing is you’ll see your grandparents, who mentioned just last week that you never call or write and why do they have to go to something called “flashr” or “flickr” or something to see your picture when they haven’t seen your face or heard your voice since your cousin Tiffany’s bat mitzvah. It’ll get you to visit Bocca when it isn’t that meshuganah spring break or whatever where you do all that stuff I don’t want to hear about or I would die of shame.

So go already.

Stay tuned . . . .

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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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 . . . .

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 . . . .

McCain Invented the Blackberry? Maybe Not, But It May Make A Good Symbol.

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I know that staffers often feel intense loyalty to their bosses, but can we please try to keep the hero worship to a minimum? Otherwise, you end up accidentally making the other side’s argument.

According to this story, Douglas Holtz-Eakin, a top McCain policy adviser, held up his Blackberry and told folks: “You’re looking at the miracle that John McCain helped create.” Mind you, Reasearch In Motion is a Canadian company. When sold in the United States, it requires a contract with a wireless carrier. Each carrier controls which models it will permit on its system and what applications it will permit to run.

Or, in other words, the “miracle” is that we not only limit the development of technology in this country and force our hi-tech jobs to other countries, we actually allow a handful of wireless carriers to break the technology, limit it further, and jack up the price. This was probably not the miracle that Holtz-Eakin had in mind.

Still, the voter interested in tech policy and following up on the “McCain Miracle” for wireless would do well to visit the Blackberry Website. Notice how many models Blackberry makes? What applications it can run? Now select country U.S. and compare carrier by carrier. The carriers you can connect to at all each have a limited set of models and applications they permit you to use. Want one of the other Blackberries? Tough. Want to run an application the carrier doesn’t like? Too damn bad. Want to bring your own device so you don’t have to pay an early termination fee justified by an “equipment subsidy?” Dream on.

McCain was quick to dismiss this fulsome praise as a “boneheaded joke.” Still, it is worth noting that I am aware of no major leadership or initiatives by McCain on tech or media issue comparable with, for example, his efforts on campaign finance reform. This is not to say McCain has been devoid of accomplishments. He deserves credit for a strong stance in promoting low-power FM and for twice sponsoring the Community Broadband Act, designed to eliminate restrictions on the ability of local governments to provide broadband services. But by and large, as reflected in his tech policy, McCain’s chief accomplishment for tech — and his plan going forward — is to not do anything and let the private sector work its magic.

If you are satisfied with the “King Log” approach to tech policy and don’t mind that AT&T, Verizon, and other carriers get to call the shots over what Blackberry and other companies can do on wireless networks, then McCain is absolutely your man. If Holtz-Eakin was trying to make the point that McCain will let wireless carriers continue to “own the customer” and control how Blackberry and other devices evolve, and we peons should be content with whatever technological “miracles” the carriers graciously allow us, then he has a point. But if Holt-Eakin was trying to say that McCain got out there, showed real leadership in the face of political presure, and established lasting policies that even his political rivals now try to embrace as their own, sorry. I lived through it, and that ain’t how it happened.

Stay tuned . . . .