Author: Harold

Slurpr! Slurpr! For Fun Legal Questions, It's A Wonderful Toy.

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Numerous websites that follow wireless news have reported about a new wireless box called Slurpr, which allows someone to aggregate up to six open wifi access points at once. In just about the next sentence, of each of these reports warns of the potential legal consequences of “stealing wifi” by using an open network that the operator does not intend for open use. Or, as Glenn Fleishman put it: “This might get you arrested six times in one day.”

But will it? And, perhaps more importantly, should it? With the rise of applications like FON, wifi enabled phones, and now the introduction of Slurpr, we need to get this issue resolved sooner rather than later. Otherwise, we can expect to see more arrests of folks unaware they are committing a crime and another equipment/application industry killed off by regulatory uncertainty.

As I have argued before, it makes much better legal and policy sense to require access point operators (and the equipment manufacturers who set the defaults) responsible for their own equipment and require them to close a network rather than to require the public to treat all open networks as off limits unless the operator somehow expressly tells the user it’s o.k. Why shouldn’t the act of blasting an open network into a publicly accessible place or onto someone else’s property be sufficient invitation to use the network, especially when it would encourage people to set power levels to appropriate levels and stop imposing interference costs on the rest of us? Why on Earth do we want a legal presumption that imposes obligations on the broader public instead of the operator, makes it much harder for people that actively want to share their networks, and encourages (rather than discourages) interference problems and poor spectrum management? Most especially, why do we do this when creating this presumption actually flies in the face of the usual legal presumptions about intrusions of private property into the public sphere?

The only answer I can come up with is that network technologies appears to have the amazing power of turning certain people’s brains into pudding and making them forget about 10,000 years of human experience of living in urban environments. For further elaboration on these themes, see below . . .

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So What The Heck Is M2Z? And Why Do I Support It?

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So recently, with all the spectrum stuff going on, I hear a lot of people asking about something called “M2Z,” usually like this: “So, what the heck is M2Z? And why should I care?”

Two very good questions. Briefly, M2Z is yet-another-plan to solve our national broadband woes through exclusive licensing. Specifically, it is about giving this one company a free, exclusive, national license for the 20 MHz of spectrum left over from the federal spectrum cleared for last summer’s AWS auction. While M2Z filed its application in May ’06, it took the FCC awhile to figure out what to do with it, since it doesn’t have any rules or pending proceedings that cover what M2Z wants. Finally, back in February ’07, the FCC issued a generic public notice of the application as required under the Communications Act and asked for piublic comment on what the heck to do about it.

Given my rather low opinion of Cyren Call’s efforts to get a free, national license, one might expect me to take a similar dim view of M2Z. Nor has M2Z helped its case much with some rather ham-handed “outreach” to the public interest community, by spamming the attendee list of the National Conference on Media Reform and creating a “Coalition for Free Broadband” website that looks all the world like an off-the-shelf Astroturf project.

Finally, Sascha Meinrath, who I look to for wisdom and advice on all matters spectrum, has written this blog entry on why he opposes the M2Z proposal.

Despite all this, I still think that M2Z deserves support. My employer Media Access Project filed a letter in support of M2Z. At the least, it deserves a good hard look before writing it off as yet another theft of spectrum via privatization.

Why? See below . . . .

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Look Who's Talking 700 MHz: Edwards, Bloggers, and Moveon, Oh my!

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[Channeling Our Great Master, Stephen Colbert]
In an obvious attempt to curry favor and win the valuable “Tales of the Sausage Factory” endorsement, John Edwards released a letter to FCC Chairman Kevin Martin the day after I announced I was scoping out his campaign. The Edwards letter endorsed three key policy positions of the Public Interest Spectrum Coalition: open access, network neutrality, and — my all time favorite and beloved of intensly geeky issues no one else gets — anonymous bidding.

That’s right! The Edwards campaign is actually cluefull enough and willing enough to get “into the weeds” to the point of endorsing anonymous bidding. Of course, the Edwards letter does not actually mention “ToTSF” or even PISC by name, but I’m sure that was just an oversight from the amazing speed with which they rushed to endorse the PISC positions after hearing that I was “checking them out.”

So, for all you folks from the Edwards campaign no doubt hanging on these words, all I can say is — well done! A tremendous Tip of the Hat to all of you. Still, in fairness to the other candidates (both Republicans and Democrats), I will need to wait to see whether they chose to endorse the PISC proposals before giving an official ToTSF endorsement.

[End Colbert]

Of course, Edwards isn’t the only one to start talking about the 700 MHz auction and what it means to our broadband future. For who else is talking about PISC proposals and the impact it appears to be having on Washington, see below . . . .

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How is the OECD Different From the FCC? OECD Takes Its Number Seriously.

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I must laugh at the recent back and forth on the recent national broadband rankings by the Organization for Economic Cooperation and Development (OECD). Back in December, OECD released its latest set of statistics for broadband penetration for its 30 member states. While the U.S. had the greatest number of broadband subscribers (defined as speed in excess of 256 KBPS one way), we still ranked 14th overall on number of subscribers as a percentage of population (the traditional way of measuring phone penetration).

What these figures do or do not mean I leave to others to debate. OTOH, if we had this kind of crappy penetration in plain old telephone (POTS) or power, we’d be a developing country. OTOH, broadband deployment is still relatively new and the other countries that have pulled ahead of us all have different circumstances that arguably distinguish it from us. No, my point here is merely to highlight the amusing battle of words between the OECD and a consulting firm called Market Clarity. Market Clarity recently issued a report challenging the validity OECD stats.

So far pretty ho hum. Then the fun begins with this OECD Response. It appears that, unlike our FCC, which can run silent for years about possible funny business in its numbers (until prodded by a change in Congress, it decides to ask for advice on how to suck less), the OECD takes its reporting rather seriously. As a consequence, they wasted no time in explaining to Market Clarity, with all the snark that serious researchers reserve for telling hired guns they are ignorant wankers, that Market Clarity didn’t know what the heck it was talking about.

Not to be outdone, Market Clarity quickly issued its own delightfully snarky response to the OECD response.

I have no idea where this ends up, as it rapidly devolves into a series of exchanges like: “While we welcome serious interest and robust public debate, you couldn’t regress your way out of a paper bag!” “Oh yeah, well for an organization with the 30 most powerfull economies as members, you’d think they’d hire some folks who can do basic math!” All I can say is that the Aussies seem to be having more fun with their public policy. And at that I wish our FCC took as much professional pride in their work product as the OECD.

Of course, the FCC would have to do work to be proud of rather than outcome-driven “research” first. But maybe someday . . .

Stay tuned . . . .

Is Edwards the One? I begin my due dilligence for '08.

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I haven’t officially endorsed a candidate here on Wetmachine. At the moment, I lean Edwards-ward, but am still early enough in that I feel a need to do some due dilligence.

So I am hoping to go to a reception for Elizabeth Edwards on June 13 here in DC. You can find details of the event here. I’d be curious if any other readers are going. I’m also curious if any readers have thoughts they’d like to share on possible candidates. I should add that I am limiting myself to candidates actually running (i.e., no Bloomsberg or Fred Thompson boosters), and that I am extremely unlikely to vote Republican (although I try to keep an open mind).

Stay tuned . . . .

This Genuine Commemorative 1993 Petition for Recon Available If You Act Within 30 Days

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Back before I finished law school, my employer Media Access Project was arguing that broadcast stations that did nothing but air program-length commercials (aka the Home Shopping Network and its various clones) did not serve the public interest and therefore did not deserve one of the scarce licenses made available for broadcast television. This being back in the day when there was still some expectation that broadcasters needed to demonstrate that they served the “public interest, convenience and necessity” as required by the statute, you understand. i.e. a long time ago.

As part of the 1992 Cable Act, Congress forced the FCC to have a proceeding to determine if stations that did only home shopping served the public interest. Unsurprisingly, the FCC found that there is a vital public interest need for people who could not otherwise get zirconium diamonds or commemorative collectors plates.

And you wonder why we learned to treat the “public interest” as a joke?

Anyway, my boss, Andy Schwartzman, filed a petition for reconsideration after the FCC issued its decision in 1993. Under the statute, you must file a petition for reconsideration before going to court. So MAP filed, arguing that the Commission had not really done its job when it claimed that Home Shopping Network and other such stations served the local community, and that the Commission had failed to consider other valuable uses of the spectrum.

And there the matter sat — for fourteen bloody years! — with us unable to go to court until the Commission resolved the damn thing. It became something of a joke. Every year, Andy would have a meeting with the Chairman of the FCC, and every year would ask about this petition. Every time someone new got named as head of the FCC’s Media Bureau, we’d trundle over with our wish list of outstanding proceedings, and at the top of the list was always Petition for Reconsideration in Docket No. 93-8. And every time, the Chairman or the Chief of the Media Bureau would promise to look into the matter. And the matter sat….and sat…..and sat….

Until Kevin Martin, under pressure from the new Democratic Congress, started putting the squeeze on the FCC staff to get the damn backlog under control. And then — Wonder of Wonders, Miracle of Miracles! — the staff decided to address our pending Petition for Recon. Of course, by this time, the record had gotten a tad “stale” (more like “mummified”) so the Bureau issued a Public Notice soliciting comment to refresh the record.

Aside from my personal venting, however, why should anyone care? After all, how many home shopping channels are there at this point (not broadcasters who run infomercials from 2 a.m. to 6 a.m., I mean broadcasters who only show home shopping)?

Because, as explained below, this proceeding actually provides an important opportunity to make two points. First, that the public interest really does matter. After years of neglect, there is (I hope) a body of very angry people ready to tell the FCC that the Commission cannot get away with treating the statutory requirement to serve the local community as a joke; that endless chances to buy adorable porceline figurines of kittens do not make up for the total absence of local programming and coverage of meaningful local news. Second, that there are plenty of more valuable uses for broadcast spectrum, like say opening it up for unlicensed use.

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Shout Out for New Econ Blog

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For those who subscribe to Tales of the Sausage Factory but not Wetmachine Main, I thought I would let you all know that my friend and ace economist Dr. Gregory Rose has started a new blog here at wetmachine called Econoklastic. You can read his first post here. Regular readers will recognize Greg’s name as the author of several spectrum studies that I quote incessantly, such as the ones describing how SpectrumCo and its wireless allies blocked competitors from getting licenses in last year’s AWS auction.

As you can tell from his first post, Greg is quite contrarian and willing to grind more than a few sacred cows into hamburger. It’s why we like to keep him around.

Stay tuned . . . .

Is Copyright the Administration’s Next Domestic Spying Tool?

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According to this report on CNET, the Administration has suddenly discovered intellectual property as an issue. They propose that Congress consider The Intellectual Property Protection Act of 2007 (IPPA).

Among other things, the IPPA would create a new crime of “attempted copyright violation” (Section 4(a)) and criminalize cross border (or attempted cross border) copyrighted material even where the shipment is between individuals and not for public distribution. The Act would also expand the scope of the Economic Espionage Act (Section 7) and the forfieture penalties of the Digital Millemium Copyright Act (Section 6) while likewise including a new crime of “intent” to violate these existing statutes. The statute also enahnces penalties if the infringing material “knowingly or recklessly causes or attempts to cause serious bodily harm” (Section 12(a)).

Finally, and most significant to me, the proposed Section 13 enhances the ability of federal law enforcement officials to engage in “interception of wire, oral or electronic communications” as part of an investigation of these crimes.

Perhaps it is only a coincidence of timing, but I find it interesting that the Administration chooses to put this proposal forward just as its efforts to ram domestic spying legislation through Congress in the name of the “War on Terror” is running into serious trouble in the new Democratic Congress. Yesterday, the House approved an amendment to the funding for intelligence activities clarifying that the Administration must follow the procedures set forth in the Foreign Intelligence Surveillance Act (FISA) rather than claim that other authority or exigent circumstances allow it to engage in wiretaps for surveillance purposes. This follows last week’s failed Administration effort to give telcos retroactive immunity for their role in Bush’s domestic surveillance program.

While the Dems have shown themselves much more concerned with protecting civil liberties in the name of the War on Terror then the Republicans, the Dems have a known soft-spot for the intellectual property mafia. In one of the delightful ironies of the politics of special interest, aggressive civil liberties hawks like Dianne Fienstien and Barabara Boxer turn into chearleaders for the most draconian measures imaginable when it comes to “fighting piracy.”

Has the Administration found a new way to expand its domestic spying program? A way that will not only neutralize opposition, but turn its most suspicious opponents into enthusiastic proponents? How hard do any of us imagine it will be to secure a warrant for domestic spying under the cover of “intent to infringe” with the possible penalty multiplier of “intent to cause bodily harm.” Any “person of interest” the Administration would wish to target posses the means to commit this new “intent to infringe” crime if he or she has a broadband connection or even a laptop with a wireless card. In the name of investigating possible “copyright crimes,” the Administration will have free reign to sieze computers, cell phones, and other devices that might arguably contain infringing material, or that even enable someone to infringe if they have “intent” to download a single ring tone or page of text.

Note that the Administration would not even have to show probable cause that it believes that the suspect has infringed someone’s work. They merely have to show that it is probable that the person in question has an intent to infringe. That’s a rather low standard at the best of times. Coupled with the willingness of the federal judiciary to regard anyone with a broadband connection and a computer as a pirate out to pillage our noble entertainment industry, and you have a recipie for a domestic spying program that avoids all the nasty protections that FISA imposes to protect civil liberties.

I wish I could dismiss such concerns as paranoid ravings. But five years ago, I wouldn’t have believed that the Administration and the telephone companies would work hand-in-hand to develop a secret domestic spying program to listen in on the private conversations of law-abiding citizens. I would never have believed that when exposed, not only would the Administration feel no shame, it would brazenly ask Congress to “correct” the problem by making such domestic spying legal — or that Congress might actually consider doing so.

So I have to wonder, why has the Administration suddenly become so all fired up about intellectual property? And just at the moment when its efforts to get generic broader domestic spying powers appear dead.

But mostly, I wonder whether the Democrats that have loudly proclaimed their love of civil liberties and their determination to resist domestic tyranny will sell us out for the benefit of their buddies in Hollywood.

Stay tuned . . . .

The 700 MHz Auction as the Next Front In the Cable/Telco War.

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There are many ways to parse the fights in the 700 MHz auction: incumbents v. new entrants, rural v. large incumbents, public safety v. commercial use, and the occassional suggestion by us in the public interest community. But, as I recently indicated elsewhere, an analysis of the band plan fight about large licenses v. small licenses reveals another interesting battle: Telcos v. Cable, with new entrants lining up with Telcos for large licenses and non-vertically integrated wireless carriers like T-Mobile aligning themselves with the cable-dominated consortium SpectrumCo.

What makes me believe license size in 700 MHz auction has become a new front in the fight between telcos and cable cable cos? Why has this new battleground emerged? And what are its implications?

See below . . . .

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I, For One, Welcome Our New Google Overlords

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In a news report worthy of KBBL-TV’s Kent Brockman, MSNBC’s Olga Kharif writes of Google wielding it’s awesome and terrible powers in preparation for bidding in the 700 MHz Auction (as if I think about anything else these days). According to Kharif, “Google is wielding a surprising amount of power in the nation’s capital,” as demonstrated by “the influence Google is having on a closely watched government auction of $10 billion in licenses to provide wireless service.”

As evidence of Google’s supposed “influence,” Kharif points to Google’s involvement in the 4G Coalition “widely considered Google-led” (by whom, Kharif’s cat Mittens?) and how Martin’s express support for 4G on the large licenses v. small licenses issue shows that the FCC is likely to “play ball” with Google.

I might just let this go as another example of the Google-mania that has takne root in the press, but the normally perceptive and attentive Paul Kapustka on GigaOm made the same mistake. Because Martin said nice things about 4G and the DBS Guys (which I still thinks sounds like a Rock Band that performs at the CES Show), everyone is all “oooohhh the 4G guys are doing real well.” And the Google worshippers are all “Ah, Google Overlords, is there nothing you can’t control?”

Two critical facts tend to drop out of this analysis.

1) Martin lost his first-round bid to get the larger license-size reag plan through. That was the original plan, as noted by the Commission when it initiated this proceeding last August. This large license proposal got enormous push-back from SpectrumCo LLC (Comcast/TW/Cox/Sprint-Nextel) and the independent wireless incumbents (T-Mobile, MetroPCS) and the little rural guys. The fact that Martin was unable to get his fellow Republicans to vote with him and get the large-license band plan ratified in this round (as opposed to considered as one option among several in the Further Notice) is a set back for the supporters of large licenses.

2) The other supporters of large licenses, the ones Martin couldn’t mention for political reasons, are Verizon and AT&T. You might remember these telcos from such Kevin Martin movies as “Local Governments Hate Competition” and “Cyren Call: Song of Satan.” Verizon went so far as to hire ace auction expert Peter Cramton to write this paper on “Why Large Licenses In The 700 MHz Band Make Jesus Happy.”

[WHY the telcos and the cable cos are battling over the sze of licenses is extremely interesting and important, and is the subject of this post here.]

So yeah, Martin gave the big shout out to the DBS and 4G guys, since he’s not exactly going to say to the Dems “I’m puzzled why Ds who claim to hate cable market power back SpectrumCo against Veizon and AT&T.” And I think Martin genuinely does believe large licenses are the best way to get another national broadband competitor on the scene. (I also believe it, which is why I prefer large licenses a la the telcos and our Great Google Overlords.) But the idea that Martin did this just because Google redid the words “Federal Communications Commission” in rainbow and promised that they wouldn’t do evil with the licenses doesn’t exactly cut it. (No offense to Rick Whitt, whom I like and I think is a great lobbyist, but lets stay focused on the actual docket and relevant history, shall we?)

I suppose I should just accept that Google exerts a fascination on the trade press these days and let it go (and figure that anyone who wants my view on reality rather than Googleview will come here). But after spending last summer of watching Google and the rest of the tech industry unable to find their lobbying ass on net neutrality with both hands and a compass and a big sign saying “telcos, please spank us here”, while constantly hearing from the press and the cable cos how all of it was really the amazing Google Overlords at work has made me just a shade irritated.

Besides, it’s Friday afternoon and I’m due for my shabbos rest.

Stay tuned . . . .