Author: Harold

The FCC and the Flying Purple People Meter.

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O.K., technically, it is the Arbitron Portable People Meter (PPM). For those unfamiliar with this issue, Arbitron has rolled out a a new technology it claims will more accurately measure radio audience share. Many folks in the minority community think that the PPM undercounts minority listeners and has serious flaws in its technology. This later claim, at least, is circumstantially supported by the refusal of the Media Rating Council to certify the technology for use in some markets (but apparently permitting it in others). But since the MRC will not disclose the reasons for its refusal, and neither will Arbitron, no one can say anything for certain.

As an aside, I’ll bet it also undercounts low-power FM stations as well. I also have to wonder whether it counts the new digital stations for radios that have converted to digital. But I haven’t made a study of this and only minority broadcasters and organizations concerned with broadcast diversity have raised the issue in a major way.

You may think, “what’s the big deal?” Well, not only does millions of dollars in advertising ride on this, along with major decisions on programming, format, etc., but so does federal policy. Since we have basically outsourced all significant information gathering on mass media (because the private sector is so much more efficient and why would an industry reporter ever have incentive to manipulate the information?), the FCC now relies on Arbitron ratings for a wide variety of ownership rules and policy decisions. For example, the FCC rules prohibit the top four rated broadcast television stations in any given market to merge.

So the FCC has put out a public notice in response to a Petition for an investigation filed by a coalition of minority broadcasters and the Minority Media Telecommunications Council (MMTC) called the PPM Coalition (PPMC). (you can download the Petition here). The FCC can, of course, investigate anything it wants — especially where its rules rely on the validity of the Arbitron rating system. But does the FCC have authority to do anything about Arbitron’s roll out of the Portable People Meter?

Well, if you believe in FCC ancillary authority, then the answer is probably yes. Arbitron and its rating system are clearly ancillary to a variety of FCC statutorily mandated goals. And if the FCC can require Best Buy to put a big sign next to any analog-only televisions saying “Will Not Work After February 17, 2009,” they can require Arbitron to show they are counting everybody. OTOH, if you don’t believe in ancillary authority, it becomes a heck of a lot harder.

Still, as the study itself demonstrates, there is value even in investigation by the FCC and getting the FCC to issue some kind of report. At some level, Arbitron does have to care if people buying advertisements consider its products reliable. It would be even more embarrassing if the FCC concluded it would no longer rely on Arbitron data — something it clearly has the right to do regardless of any authority to directly regulate Arbitron. By contrast, if the FCC gives Arbitron a clean bill of health, it may not satisfy the PPMC, but it will enhance Arbitron’s claims of reliability for the broader market.

Credit to the FCC for getting this out on notice quickly. We’ll just have to see what comes of it.

Stay tuned. . . .

The Attack on Oprah: A Case Study Of The Strategies of the Conservative Noise Machine.

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If I told you after the Palin announcement that Republicans would attack Oprah, you’d have called me crazy. Oprah is beloved of the precise demographic Rs hope to win over by naming Palin. It would be suicide! Besides, what would be the grounds for the attack?

Then when I told you “because she is keeping her promise to keep politics off her show,” you would say I was doubly nuts. “Impossible! Everyone knows that when Oprah backed Obama she made it clear that she was not going to leverage her show for him. How on Earth are the Republicans going to turn that into an attack?”

Welcome to PalinPetition.com. You will find that after the initial blip on Sept. 5-6, it has slowly leaked into the mainstream media. I discovered it via the ever excellent Benton Foundation media headlines service, which linked to this trade press piece. I expect it will start to dominate the cable and broadcast news rounds via FOX and other conservative commentators soon. Timing will no doubt depend on focus group polling on whether Obama is gaining traction or if passion about Palin begins to wane. But from the current ferment in the vectors, I’m pegging it to be next week’s distraction.

The fact is that the developing attack on Oprah is an excellent case study of how the Republicans manipulate both their base and the mainstream media. It also highlights what Obama and the Ds need to do to defend. It is not simply about going after smears or going negative sooner stronger or any of these things. It is to understand that the Republican stategists at this level do not wait for targets of opportunity, nor do they hitch their train to a single issue or person. It is a matter of understanding overall methods of operation and developng proactive counter-strategies rather than reactive counter strategies. Along the way, it also helps highlight the current problem with our mainstream media and illustraights how the Rs are taking advatange of the internet in non-obvious ways.

Full analysis below . . . .

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Comcast Wins Lottery on BitTorrent Appeal.

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Yesterday, the Panel on Multijurisdictional Litigation (PMJL) awarded the Comcast-BitTorrent Appeal to the D.C. Circuit. Obviously I would prefer to be elsewhere for the same reason Comcast wants to be there (despite being actually located in the Third Circuit), i.e. the D.C. Circuit’s reputation as being a pro-industry anti-regulatory bunch of judicial activists who don’t give a squat about actual case law. Still, since some of our strongest precedent is from the D.C. Circuit, and the D.C. Circuit has surprised Comcast in the past, I am not exactly weeping in despair here.

In a portent of things to come, Comcast also filed a challenge to our standing with the PMJL. I expect this to be renewed in the D.C. Circuit once the cases are consolidated.

Anyway, for those following the sequence of events, the Ninth, Second and Third Circuits will now transfer the cases to the D.C. circuit, which will consolidate them. Folks will have a chance to intervene in either or both sets of cases, and parties may also try to file other motions (e.g., motion for stay, motion for expedited trial). Anyone involved in the matter below (or having an interest impacted by either our Petition or Comcast’s) has a right to intervene — either on the side of the FCC or on the side of Petitioner. Also expect cross intervention where parties who like the FCC’s decision in the Comcast-BitTorrent case intervene in support of the FCC and against Comcast and in support of us and against the FCC. Or in support of Comcast in the Comcast appeal and in support of the FCC in ours. PArties may also file for permission to appear as amici for one side or another.

After the time for interventions passes (which I am too lazy to calculate at the moment), and the court resolves any pending motions, the court will set a briefing schedule. It is too early to guess the time frame until we see what motions parties file (other than interventions).

Stay tuned . . . .

Leveraging Law & Order For Cell Phone Jamming.

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Ever since the FCC explicitly banned cell phone jammers back in 2005, a company called Cellantenna has been working its little heart out to get Section 333 of the Communications Act declared unconstitutional or otherwise get the FCC to legalize cell phone jammers. (Not surprisingly, CellAntenna hopes to sell cell phone jammers, among other equipment.)

CellAntenna’s latest scheme is to focus on the issue of unauthorized cell phone use by prisoners. I’ll confess, I think the bigger problem is stopping the smuggling in the first place or keeping prisoners under observation so they cannot use cell phones. Or — if I wanted to be real daring — set up detectors and tap into cell phone calls made from prison cells (guards should so not be using their cell phones on duty, so they don’t worry me — set up secure areas where prisoners are not permitted if there is a real issue).

But even assuming a real problem, I don’t see that this gets CellAntenna where it wants to go. If state and federal penitentiaries want to petition the FCC for special permission for a waiver of Section 333, that should not be too difficult. But that’s a rather small market in the grand scheme of things.

Folks hoping for legal cell phone jammers anytime soon should not hold their breath.

Stay tuned . . . .

The McCain Tech Policy In Action!

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Apparently, the Dems were accused of being too wonky by having Mark Warner talk about bringing tech jobs to America, and the Republicans vowed not to repeat that mistake. Even former EBay CEO Meg Whitman, once such a strong advocate of network neutrality she sent an email to EBay users asking them to lobby Congress, remained silent about that series of tubes that Republicans find so gosh darned perplexing. No doubt this is in deference to Mr. McCain, who has boasted that he is a computer illiterate.

But this latest gaff, running a picture of Walter Reed Middle School on the green screen behind McCain instead of Walter Reed Hospital because they screwed up a Google images search, has certainly cemented not merely McCain, but the McCain campaign, as being in the ranks of the terminally clueless on matters technical. Mind you, it seems a piece with the general slovenly way they ran the convention. In a city run like a friggin’ police state, where “preemptive raids” are being used to lock up reporters and supposedly “keep us safer,” how the heck did protesters manage to infiltrate the candidates acceptance speech? More importantly, perhaps, how is it that the Dems could keep their own convention safer with less draconian security means?

Well, I shall leave the rather blatant messages on this as an exercise to the reader. While I hope to post about the Republican manipulation of the spineless wussies of the MSM later (what a sad state of affairs when the best running commentary and reporting on the convention has been the Indecision08 blog), I intend to focus here on the McCain Tech Policy or, more accurately, the utter absence of one.

As I observed when I first wrote about the McCain tech policy, it is unbelievable that the Republicans treat a multibillion dollar industry that has become one of our most critical pieces of infrastructure and major drivers of our economy as an afterthought to the business of cutting taxes and extending offshore drilling. All this lip service about “the jobs of tomorrow” and doesn’t mean squat if you still think “the interwebs” is all about downloading porn, stealing music, and soliciting minors in AOL chat rooms and this newfangled thing called “my space.”

And no, having Carly Fiorina and Meg Whittman or Michael Powell in your party does not mean squat about your commitment to this stuff unless you actually let them talk about this stuff in prime time. The Daily Show may have mocked Warner for getting into details only geeks could love, but the fact that the Democratic keynote speaker was all about how technology brought good jobs to rural Virginia and the Dems will bring those same good jobs to the small towns and inner cities tells us something about the parties priorities. And the fact that none of the Republican speakers, even the supposed tech experts, could take time away from mocking community organizers and helping the poor to mention anything vaguely tech-related tells us something as well.

Stay tuned . . . .

“Jesus Was A Community Organizer, Pontious Pilate Was A Governor.”

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I wish I could claim credit for what is so far my favorite campaign slogan, but it comes from this Daily Kos post. I’d like to get it on an internet button and have everyone involved in community organization display it.

In the meantime, however, I recommend this excellent piece by Joe Klien on what Barak Obama actually did as a community organizer. Then tell me again how those elitist Democrats can’t possibly understand your pain in the way that the crowd of Republican delegates and lobbyist who think that being a “community organizer” is funny.

Stay tuned . . . .

The Comcast Bandwidth Cap — Blame Florida (and lack of competition and refusal to upgrade).

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As all the world knows by now (the world that follows this anyway) Comcast has imposed a new bandwidth cap, limiting downloads to 250 GB/Month. Unsurprisingly, some folks blame the FCC’s recent decision on prohibiting Comcast from blocking BitTorrent and other p2p applications as pushing Comcast to make this change, although Comcast itself has repeatedly stressed that it was not compelled to do this and planned to do this anyway so no biggie.

What the world did not know, but I thank PK’s Art Brodsky for finding, is that Comcast agreed to clarify its cap as part of a settlement with the Florida Attorney General’s office. As some of us have observed for awhile now, Comcast long had a policy of cutting off “bandwidth hogs” for exceeding a capacity cap while refusing to say what the actual capacity cap was. Well, on July 29, Comcast agreed to make clear their capacity cap and pay $150K in fines.

I highly recommend reading the full terms of the settlement — particularly the factual background which Comcast has agreed is true (without, of course, admitting wrongdoing). Of greatest import, until it announced the 250 GB/month cap, Comcast did not have an actual hard and fast cap. Rather, according to Paragraph 5 of the factual stipulations, Comcast simply knocked off the highest 1000 users regardless of their actual bandwidth usage or geographic location. Comcast is almost certainly telling the truth when it says the highest 1000 users were atypically intense bandwidth consumers. duh. Of course the top 1000 out of 14.4 million will be at the high end of the curve.

No, the more interesting question is what the hell kind of a system is it where Comcast simply goes after the top 1000 users no matter how much they actually use, and why Comcast would adopt such a policy if it wants to reasonably manage network congestion? It seems rather . . . inefficient and arbitrary. Unless, of course, one is trying to save money running a crappy network and generally discourage high-bandwidth use.

Apparently, the Florida Attorney General also thought a policy that simply shut off the top 1000 users every month regardless of actual use or congestion did not meet proper standards of consumer protection or “reasonable network management.” The settlement requires Comcast to state clearly what it means by “excessive use of capacity” in its acceptable use policy (AUP). That’s it (as well as paying $50K for attorneys fees and other associated expenses to the AG for bring this action). Comcast has total discretion to set a limit or have a limit or change a limit, as long as there is (a) an actual fixed limit, and (b) Comcast clearly communicates to its subscribers what that limit actually is. This is in line with the settlement reached last year between Verizon Wireless and the NY AG’s office that Verizon would no longer advertise its wireless internet access package as “unlimited” but would provide a hard monthly cap.

Which explains why Comcast is not going around telling the world that it adopted bandwidth caps because of the big bad awful FCC and their wicked regulatory ways. They didn’t. Rather, Comcast was using an even more ridiculous bandwidth cap the entire time, and they were required as a matter of consumer protection law in Florida to actually come clean with a real number so customers can find out what they are paying for and get full value for their monthly subscriber fee. It seems Comcast has sense enough not to play those kinds of games on something so easily verifiable. Good for them. Nice to see they learn from experience.

Stay tuned . . . .

If I Love The FCC's Comcast-BitTorrent Order So Much, Why Did I Appeal It?

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So last Friday, Media Access Project filed 3 Petitions for Review asking the federal courts to order the FCC to order Comcast to stop blocking p-2-p immediately. None of this wait until the end of the year crap. We filed on behalf of Vuze.com (in the Ninth Circuit), Consumers Union (Second Circuit), and PennPirg (a member of Consumer Federation of America) (Third Circuit).

Comcast, for its part, filed in the D.C. Circuit. I have not heard of any other filings, but it is possible.

More details, and what comes next, below . . .

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I Guess Republicans Think Community Organizing Is Funny.

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Well, things were pretty depressed at the Republican convention over the last few days. But now we can begin a rollicking good time mocking the very idea that community organizing has value.

Of all the things that both Gulliani and Palin could have fixed on as a line of attack, the idea of community organizing as work for pussies is not what I would have expected, and Lord knows my expectations after Swift Boat Veterans for Truth are prety low. But what amazed me was how many folks on the floor of the RNC Convention actually laughed and whooped it up at the very mention of being a community organizer, before even getting to the supposed punchline about how it doesn’t give you any “real” experience.

Hee hee hee. Those whacky Democrats! They think that if someone goes out into a local poverty striken neighborhood, inspires people to believe that participating in the political process can change things and make their lives better, gets wildly diverse and often fractious interest groups focusing on a common goal, against industry interests backed by an entrenched political power structure, all on a shoe-string budget is something that matters! Ha ha ha! What a ma-roon! What a joke! People matter? They can make a difference? And inspiring them and organizing them to believe that qualifies you for something other than a beating by the cops? What a joke!

Voters who think they want to have beer with these people better think again. They will be happy to pat you on the head and drink your beer — especially if they can stick you with the tab. But if you would like people who actually give a crap about your lives, you’re coming to the wrong store.

As for community organizing, we actually have another name for it over here. We call it “voter registration.”

Laugh away chuckles. See you in Novemember when the rabble turn out to vote.

Stay tuned . . . .