How Democracy Works, Or Doesn’t

Today is FCC Net Neutrality Order Day! What Happens Now?

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Word is today the FCC will release its network neutrality order reclassifying broadband as Title II. I’ll update with a link when that happens.

UPDATE: Here is the Order in all it’s yummy geeky goodness.

UPDATE #2: I goofed on the length of time parties have to file petitions for review with the federal appeals courts. I cited 47 U.S.C. 402(c). But as a kind reader emailed me, the mandatory time limit in 402(c) only applies in the limited number of instances listed in 47 U.S.C. 402(b) — cases with exclusive jurisdiction in the D.C. Circuit. In most cases, including here, petitions are filed under 402(a), which directs the filer to the procedural rules under the time allowed under 28 U.S.C. 2344. That gives parties 60 days to file a Petition for Review, not the 30 days specified in 47 U.S.C. 402(c). This error is now corrected below.

My only excuse is I was dashing this off quickly in the morning and forgot about this distinction between 402(a) and 402(b). It was annoyingly sloppy on my part. My thanks to the reader who chose to correct me very gently by email rather than mocking me disdainfully on Twitter or in the comments section.

Below is a (relatively) short FAQ on what happens now.

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My Insanely Long Field Guide To The War On CableCARD — Part II: STAVRA Section 203.

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When it comes to special interest sleaze, Section 203 of the Satellite Television Access and Viewer Rights Act (STAVRA) is just an absolute brilliant work of art. We like to talk about how much money cable throws around, about Comcast Chief Lobbyist David Cohen golfing with President Obama, yadda yadda yadda. But that is just crude muscle.  Getting a blatantly anti-consumer provision inserted in a pro-consumer bill behind the scenes, and getting it rammed through by a combination of obscurity, chicanery and log-rolling, is where that army of lobbyists earns their 6-and-7 digit salaries.

 

I gave the whole bloody history in The War on CableCARD Part I: More Background Than You Can Possibly Imagine. To review, Section 203 of Stavra (and its matching provision in the House STELLA 2014 bill) cripples CableCARD  by eliminating the “integration ban.” This effectively ends any hope third party devices will compete with the cable industry, and we remain stuck leasing digital video recorders (DVRs) and set-top boxes (STBs) and other equipment and services from cable operators rather than owning our own or using cheaper, better rival services. Consumers pay over $1 billion in rental fees annually to cable operators for equipment they could otherwise own. So eliminating the integration ban (and thus killing CableCARD) pretty much condemns consumers to keep getting gouged for the foreseeable future just when independent equipment like the TiVo Romaio is finally starting to take off.

 

To add to the special interest sleaze factor, Section 203 of STAVRA converts a pro-consumer bill (that was originally a lot more pro-consumer) into a billion dollar rip off of consumers for the profit of one of the most loathed industries in America. And it does so in such a subtle way that it is almost impossible to detect. AND it comes with a fake pro-consumer ‘solution’ so the cable industry (and, more importantly, members of Congress seeking cover) can claim to have the best interests of consumers at heart.

 

Happily, it has an easy fix and a champion to convert this back into an actually good pro-consumer bill and have this blow up all over the cable guys so that they will be hoist by their own petard. Oooh, such justice would be sweet. And eminently achievable.

 

If you want the short version of this, without the appreciation of all amazing special interest sleaziness, you can see these Public Knowledge blog posts: here, here, here and here. But if you want the full TotSF treatment with all the wonk and snark you’ve come to expect from yr hmbl obdn’t blogger, then see more below . . . .

 

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My Insanely Long Field Guide To The War On CableCARD — Part I: More Background Than You Can Possibly Imagine.

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We often talk about the power of cable lobbying in the context of big proceedings like network neutrality. But where the real power comes, and where consumers routinely get screwed the most, happens off-screen. Because people hardly ever know what is happening, cable lobbyists play an outsized role in working their magic and making it legal to find new ways to screw over subscribers. Nothing illustrates this better than the fight over the Satellite Television Access and Viewers Rights Act (STAVRA). As my Public Knowledge colleague John Bergmayer explains in this blog post, unless Congress passes STAVRA, a lot of satellite TV subscribers will lose access to some of their broadcast channels. Since Americans totally freak out if they cannot watch their favorite show, and channel this rage to their members of Congress, that makes STAVRA “must pass” legislation.

 

The cable industry lobbyists have managed to append this bill designed to protect consumers a little gift to themselves. Cable operators make over $1 billion a year on equipment rentals to subscribers. Section 203 of STAVRA eliminates the FCC rule (“the integration ban”) that makes it even vaguely possible at the moment for people to avoid these rip off rental fees and actually buy your own cable set top box (STB) or digital video recorder (DVR) using something called CableCARD.

 

From a policy wonk perspective, I have to say that Section 203 of STAVRA is a work of art. Unless you know what to look for, you will never find it by flipping through the bill. And unless you know the whole background on how the cable industry has frustrated the effort to get competition in the STB and cable device attachment business, you would never know how the cable arguments about how CableCARD doesn’t work are self-serving baloney. And, best of all, Section 203 contains a fake solution so members of Congress and the cable lobby can pretend this will make things better, rather than continue to screw consumers out of hundreds of millions of dollars in cable fees annually.

 

Hence the need for two insanely long posts. But since we are talking about consumer rip offs of over $1 billion a year, I kinda hope you will consider it worth reading. Here in Part I, I will give you everything you need to know about the history of how cable has ripped us off on equipment rental fees despite Congress passing two separate laws (here and here) to make it possible to actually own equipment and avoid this nonsense (which worked from 1992 until we went digital), what the heck the “integration ban” is, and why CableCARD — lame as it is — actually does make things mildly better and is picking up steam as a result of stuff the FCC did back in 2010.

 

In Part II, I will cover the current fight over the Section 203 of STAVRA, what makes Section 203 such an amazing work of art and how Senator Ed Markey (D-MA) is standing up for consumers on this. With help, Markey can actually flip this around and convert this from a gift to the cable industry to something that would genuinely help consumers by making the promise of stand alone STBs and other cable equipment real. But, at a minimum, Markey needs help getting the bad provision stripped from the bill so we can at least keep what we have and keep working to make it better.

 

Part I with all the background you need to understand Part II below. You can find Part II by clicking here.

 

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What Do We Learn From Big Data Visualizations Of Net Neutrality Comments?

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“Big data” and “Data visualization” are all very trendy these days. As with all tools, data analysis and data visualization require appropriate context to make sense. As my old mentor Professor Robert Seidman liked to caution: “you generally find the most firetrucks at the biggest fires.” Understanding context tells you cause and effect so that you don’t try to fight fires by eliminating firetrucks.

 

Which brings me to the analysis of the public comments in the FCC’s ongoing network neutrality proceeding. The FCC has received about 1.1 million comments so far (we can expect more when replies come due in September). To facilitate further discussion and debate, the FCC released these comments in 5 XML Files that make doing searches and analysis much easier. We have started to see some data crunching of this data, with a range of results. As someone with 15 years experience with FCC proceedings, I can put these in some context.

 

Briefly, the volume of individual comments and the analysis shows a high level of engagement. More importantly, the comments do not simply reflect the talking points we see in the mainstream media and debated in DC policy circles. A lot of people are actually thinking about this issue and deciding why it is important to them personally, and it has nothing to do with cat videos or Netflix. For a lot of people, this debate goes to fundamental values of basic fairness, opportunity, the American Dream, and the preserving free expression and diversity of views.

 

Perhaps most tellingly, the number of individual comments opposing net neutrality regulations as unnecessary and overly burdensome government regulation of the Internet is so small as to be statistically irrelevant to data visualization analysis. Those people who are engaged on this and care enough to comment all run one way — they want the FCC to adopt rules that prohibit paid prioritization and protect an open Internet.

 

I unpack this below . . .

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Net Neutrality Videos Much More Interesting Than I Could Ever Make.

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It’s impossible to keep up all the videos about net neutrality. Heck, I have been delinquent in flogging my own. For example, I have two new “5 Minutes With Harold Feld” videos out: one on what I call “virtual redlining” (about how permitting prioritized content invariably leads to targeting and segmenting audiences in ways that recreate all the usual stereotypes and re-marginalizing traditionally marginalized communities) and this on “rural virtual redlining” (how allowing prioritization further isolates rural and exacerbates the digital divide).

As you can see from the pathetic hit counts if you click through, my personal contributions are a total flop. Why? Because, in my own words, 5 Minutes with Harold Feld takes “insanely complicated and incredibly boring stuff and make it slightly less boring because THIS STUFF IS IMPORTANT.” So even at my most wildly successful, I am only slightly less boring. This apparently does not help much.

However, lots of much more interesting and entertaining people have used the power of online video — and even traditional media — to provide a much less boring perspective. I’m listing my top 5 Internet videos below the break. Please feel free to add links to your favorites in the comment section, assuming you did not fall asleep trying to watch my videos.

Actually interesting Net Neutrality videos below . . .

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A Guide To The Mechanics of the Comcast/TWC Deal. Part IV: Congress, The White House And The Public.

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If you read most of the reporting on the Comcast/TWC deal, you would think that Congress and the White House play a huge role. In reality, as I alluded to in the Part I intro, not so much. The political stuff tends to get over-reported in part because it’s easier (it took me about 3000 words just to explain how the antitrust and the FCC review work never mind any actual reporting), and in part because everyone assumes that Washington is a corrupt cesspit where politics invariably determine outcomes.

 

As always, while the political matters, it plays a much more complicated role in the mix. Below, I will unpack how the political pieces (including public input) play into the actual legal and merits analysis. Again, keep in mind that I’m not talking about merits here. I’m just trying to explain how the process works so people can keep track over the course of the merger review (which will last a minimum of 6 months and may well run for more than a year).

 

Political details below . . . .

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Jessica Rosenworcel And the Mantle of Michael Copps

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The Federal Communications Commission (FCC) moved forward on the transition of the phone system by adopting an order at its February open meeting. By a 5-0 vote, in addition to a number of other important first steps, the FCC adopted a set of governing principles for the transition. The principles focus on core values: Universal Service, Consumer protection, Competition, and Public Safety.

 

These principles did not just drop out of thin air.  Commissioner Jessica Rosenworcel first proposed them in this speech in December of 2012. While few have noticed, Rosenworcel continued to quietly and effectively push this framework, culminating in a unanimous vote with broad approval from both corporations and public interest groups.

 

More amazing for this hyper-partisan and contentious times, the principles capture both progressive values and conservative values, traditionally shared by Republicans and Democrats alike. The idea that access to communications services is so essential to participation in society that the Federal government has a role in making sure that ALL Americans have affordable access goes back to the New Deal and Section 1 of the Communications Act. But the basic precept is even older, going all the way back to Founding Fathers. Article I of the Constitution gives Congress the express power ”to establish post offices and post roads” in recognition that ensuring that all Americans can communicate with each other is what helps make us a single country and one people — a core conservative value. As the arteries of commerce and the means of communication have evolved from post roads and post offices to steam trains and telegraphs to the automobile and the telephone, we have continued to preserve this idea of universal service to All Americans as a core traditional value of what it means to be an American.

 

But as essential and shared as these values are, no one was talking about them as the basis for the Phone Transition, or how to bring them forward into what Chairman Wheeler calls “The Fourth Network Revolution,” until Commissioner Rosenworcel started the conversation. From the time AT&T first proposed a “sunset of the Public Switched Telephone Network” during the National Broadband Plan in 2009 until Rosenworcel’s December 2012 speech, no one even talked about values – let alone proposed that a set of fundamental values needed to guide the transition. The conversation remained mired — and stalled — in myopic focus and bickering on the details of specific regulations. Commissioner Rosenworcel understood well before anyone else that the best way to move forward, and the way to keep the process firmly centered on the public interest, required reaffirming our fundamental values as the first step.

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AT&T/CIA Deal Violates Telemarketing Rules — So I’d Like to Opt Out.

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It’s like getting Al Capone for tax evasion.

 

The CIA and AT&T figured out how to get around legal restrictions on giving the CIA access to domestic phone call information, but in doing so they violated a Federal Communications Commission (FCC) rule that protects you against telemarketing.

 

According to this story in the New York Times, the CIA paid AT&T to provide them with information on calls passing through its international telephone system. Because federal law prevents the CIA from spying inside the United States, the CIA could not legally get info on calls terminating in the U.S. because they are not eligible for any of the mammoth sized loopholes Congress has already punched in the fabric of our civil liberties. But, of course, calls from suspected foreign terrorists (aka “anyone outside the United States”) that terminate in the United States are the most interesting to the CIA.

 

So what’s a poor spy agency and a patriotic mega-Corp who understand that sometimes you have to break few privacy eggs to make a freedom omelet gonna do? According to the article, when a call originated or terminated in the United States, AT&T would “mask” the identity by revealing only some of the digits of the phone number and not the identity. The CIA could then refer this information to the FBI, which can use all those mammoth sized loopholes Congress punched in our civil liberties to get a court order and require AT&T to provide the rest of the phone number and all other relevant identifying information. Then the FBI can kick that back that information to the CIA.

 

Unfortunately for AT&T, this pretty clearly violates the Customer Proprietary Network Information rule (CPNI).  Fortunately for AT&T, it can solve this problem fairly easily by notifying customers of the possibility the CIA might ask for their phone number if they get a call from outside the country and asking customers who don’t want this exciting new service to opt out. Please start with Senator Feinstien and ask her if she wants to opt out of having her international calls monitored by the CIA. Given her legislative track record on this, I’m sure she won’t mind.

 

Some analysis of why this violates the CPNI rules below . . .

 

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Will The Fed Shutdown Screw Up This Season’s Xmas Tech Toys?

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No one outside the small world of telecom policy cared much that the Federal Shutdown would close the Federal Communication Commission (FCC). Other than the hope that closing the FCC would open the door for Joss Whedon to slip in some full frontal nudity and cussing on the next episode of Agents of S.H.E.I.L.D., most people don’t think of the FCC as having much impact on their lives.

 

It turns out, however, that the shut down of the FCC may very well delay the sale of new tech toys scheduled for release this Christmas season. And I don’t just mean the obviously FCC things like new cellphones. Every toy with a computer chip, every TV set, every microwave oven, and just about everything else that produces “radio frequency emissions” needs an FCC certification before it can get shipped to stores for sale.

 

Why? Because things that draw a lot of electric current that oscillates rapidly, like a computer chip, produces radio interference. If you have something that shoots short bursts of high powered radio waves, like your microwave oven (aka “radarrange oven” for you spectrum trivia buffs), you want to make sure the device won’t ‘leak’ into neighboring spectrum and cause interference with things like cordless phones. Also, if your cell phone or wifi chip gets the power jacked up too high, it can microwave your ear off or something.

 

So to keep your microwave from interfering with your cellphone, and to keep your cellphone from microwaving your face, federal law requires the FCC to certify all devices that produce radio waves (either intentionally for communication or just incident to use). Most of the actual testing is done by outside laboratories, and the process as a whole is fairly well streamlined. But with no one at the FCC to review the lab reports and process the paper work, the backlog is starting to mount and all the tech toys for this year’s Christmas season are stuck in Santa’s workshop, aka storehouses Singapore, waiting for certification so they can get to U.S. stores in time.

 

The FCC on average processes a little over 1000 applications for certification a month. They process them in the order they arrive. But not only is no one at home right now processing the ones that were already filed, you can’t file new ones. If you are a manufacturer, you now have absolutely no idea if your product will be on shelves on Black Friday. Worse, your competitor’s product could be there a week or two weeks ahead of yours, getting all the reviews and becoming The Hot Tech Toy of The Season while your product languishes on loading docks.

 

And it’s even worse for us Jewish people. Chanukah hits at Thanksgiving this year. Thousands of disappointed little Jewish boys and girls will be stuck with all the Uncool Last Year’s Models, while all their non-Jewish friends can still get the latest models on the 24th of December. Our last Thanksgivingukkah for the next millennium, ruined by the federal shutdown!

 

Will this be the Shutdown That Ruins Christmas? Or will the spirit of peace on Earth and goodwill to all men come back to Washington, and get those hardworking, lovable little federal elves back to the FCC branch office at Santa’s workshop in time?

 

Stay tuned . . . .

Chairwoman Clyburn Shows How It’s Done — Doing The Job On Prison Phone Rate Reform

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Today was an extremely emotional meeting at the Federal Communications Commission (FCC). After ten years of fighting, the FCC resolved the Petition filed by Martha Wright and concluded that the rates charged for prisoners to make and receive phone calls are “unjust and unreasonable” and therefore violate Section 201 of the Communications Act. The FCC imposed interim rates and issued a further Notice of Proposed Rulemaking to ensure that rates going forward are based on actual cost to provide service, not jacked up outrageously because prisoners and their families have no choice. Importantly, the FCC ruled that the “commissions” (aka kickbacks) paid to jails for the right to exploit the helpless and profit from the misery of their families are not a “cost” that can be recovered. (FCC press release here.)

 

As you can tell from the above, I feel rather strongly about this. I have written before that I regard this as a case where the words of Isaiah 1:17 and Zachariah 7:10 apply. I also find it of great significance that this is Shabbas Shoftim, the Sabbath on which we read the portion of the book of Deuteronomy 16:18-21:9 (called “Shoftim,’ judges, because it begins with “Judges and officers shall you give yourselves in all your gates that the Lord shall give unto to dwell in, and they shall judge the people with righteous judgement.”) Specifically, Verse 16:20 enjoins the people “Justice, Justice shalt though pursue! ”

 

It has been a privilege to support the efforts and advocacy of so many of my friends. I dare not begin to list, because I would invariably leave someone out. The level of organization work in the field, meshing with advocacy efforts at the FCC and on the Hill, has been astounding.  For years, this proceeding went in fits and starts, constantly delayed, because who cares about the incarcerated and their families? Out of sight, ignored, and generally regarded with suspicion. So their cause was neglected and ignored — until then-Commissioner Clyburn became a champion for it in the FCC and breathed new life into our efforts.

 

Today, Chairwoman Clyburn gave justice. Justice to the Wright Petitioners, and to every family trying desperately to maintain basic contact with incarcerated loved ones. The promise of the Rule of Law is that the benefit of law applies to ALL. The promise of Section 201 of the Communications Act for 75 years has been that everyone is entitled to just and reasonable rates, no matter who you are or where you are. Section 1 of the Act promises to secure the benefit of the Act to “all Americans.

Today the FCC affirmed that all Americans means ALL Americans. Even the most powerless, even those being punished for crimes, are still people protected by the rule of law. Their families are still people, entitled to depend upon the rule of law to protect them from the cruel choice of talking to their father, son, granddaughter or paying for basic necessities because a phone call that normally costs pennies costs the families of prisoners more than $15 for a few minutes.

Today, the FCC, under the leadership of Chairwoman Clyburn, stood up and did its job. it found exhorbitant prison phone rates unjust and unreasonable, mandated an interim cap, and issued a notice of further rulemaking to ensure that future rates are cost-based.

To quote from scripture one last time. “It is from the Lord, and it is wondrous in our eyes. Behold the Day the Lord has made, let us rejoice and make merry!” (Psalms 118)

Finally, this is a reminder of what can happen when people in power have the courage to do their job. Govornment and regulation CAN protect the helpless. People demanding justice CAN make a difference. A “government bureaucrat” like Chairwoman Clyburn CAN be a champion for justice for the oppressed and it DOES matter.

How much greater the shame, then, to those in government who refuse to act when needed? Or those who cynically refuse to believe anything we common folk do can make a difference?

To you handwringers, and you shruggers of shoulders, I tell you this: the problem is not with “the system.” The problem is YOU.

Stay tuned . . . .