Mr. Sherman’s Magical Thinking

I am always impressed with the utter unwillingness of the Entertainment industry to acknowledge the world as it actually is, rather than the world as they want it to be. Perhaps it is a side effect of being in the business of ‘selling dreams.’ In any event, I could not help but marvel at Carey Sherman’s recent New York Times Op Ed “What Wikipedia Won’t Tell You.” Even for the Entertainment Industry, it is astounding. It actually crosses the boundary from an industry-centric bias to outright magical thinking.

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The PIPA Aftermath — Will Senate Democrats Drive Off A Cliff For Hollywood?

One of the more surprising developments in PIPA/SOPA politics has been the transition of Hollywood-backed legislation from a bipartisan issue with both Republican and Democratic proponents and opponents to a partisan issue. Democrats (particularly Senate Democrats) are increasingly identified as supporting the legislation and Hollywood while Republicans increasingly frame this as an exercise in big government and crony capitalism.

On the one hand, this seems remarkably unfair given that Democratic Senator Ron Wyden (D-OR) was the first Senator to oppose PIPA and one of the chief architects of the bipartisan alliance of Senators and Representatives that kept PIPA/SOPA from advancing to the point of no return. It also ignores the role the Obama Administration played in legitimizing and galvanizing anti-PIPA/SOPA efforts (including the SOPAStrike web blackout) by strongly opposing PIPA/SOPA before the SOPAStrike, despite the naked threats of Hollywood moguls to punish the Obama campaign by cutting off any further contributions.

But too many Senate Democrats seem intent on handing Republicans a partisan victory. Whereas even Republican champions such as Rep. Lamar Smith (R-TX) and Rep. Marsha Blackburn (R-TN) have acknowledged “legitimate concerns” of opponents and have “shelved” SOPA so that it can be “scrapped” and a new approach developed, high profile Senate Democrats continue to insist that they will press on against what they regard as unwarranted opposition motivated either by financial interest, disinformation, or political opportunism. Indeed, PIPA author Senator Pat Leahy (D-VT) used his opening floor speech yesterday to chastise Republicans for their opposition to PIPA and his hope that, now that Republicans are back in Washington and away from all those annoying constituents protesting PIPA, they will return to the True Path of Reason — which lies in fanatically embracing any legislation that gets the MPAA seal of approval.

Which brings us to the interesting question for the legislative season: will prominent Senate Democrats chose to make this the issue on which they will drive the Democratic Party generally off a cliff by continuing to try to “sell” PIPA/SOPA, thus embracing Republican charges of a “culture of corruption” and “crony capitalism?” Or will they finally come to their senses and publicly embrace those like Wyden who insist that measures directed against online infringement must not also threaten free speech and innovation?

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An Astounding Week In PIPA/SOPA Comes To A Close

Today brought a dramatic conclusion to an extraordinary week and the culmination of months of amazing activism on PIPA/SOPA. A month ago, hardly anyone had heard of PIPA and a few more had heard of SOPA and its passage was regarded as virtually assured. Today, Harry Reid (D-NV) finally threw in the towel and called off Tuesday’s scheduled cloture vote. In the House, Lamar Smith and Marsha Blackburn, the last SOPA holdouts, threw in the towel and promised to go back to drawing board and totally rework their approach. Yes, the ill-grace with which the chief Democratic architects of PIPA in the Senate have responded, coupled with Chris Dodd’s increasing resemblance to Muppet Movie villain Tex Richman by openly threatening on Fox News to stop campaign contributions to any politician who didn’t keep pushing PIPA, make it clear PIPA’s sponsors (in both the legislative and financial sense) are as utterly unrepentant as they are in common sense. So yes, they will come back and try again and all the usual caveats that responsible people seem compelled to add to any moment of real triumph.

To which I say, feh. We can celebrate until at least Monday. No, we have hardly solved all the problems of our democracy, or even prevented the Entertainment industry from coming back to try again. However, “the work is not for you to finish, but nor are you free to set it aside.” (Pirkei Avot 2:21) Or, in the words of Matthew 6:34: “sufficient unto the day is the evil thereof.” It would be a poor world indeed where no victory is every enough, where all we see when we look ahead are the challenges and all we see when we look behind are our defeats. So let us celebrate with a whole heart, because in a mere 3 days we accomplished something wonderful.
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Yesterday was absolutely one of those days that reminds me why I stay in public advocacy. I’m a democracy junkie. Yes, I admit it. The sight of literally millions of people remembering that they are citizens and not just consumers gets me juiced.

The good news is that by every possible metric, SOPAStrike was an enormous success. We absolutely scared the poop out of members of Congress and broke through the infamous “Washington bubble” that separates our elected officials from what is actually going on in the real world. As a result, we forced more than 20 Senators to come out publicly against PIPA/SOPA, including a number of co-sponsors withdrawing support. Fantastic!

Some of these conversions are people who hadn’t really thought much about this and are now going “I co-sponsored what? You told me this was a non-controversial bill to stop online piracy and the only opposition was Google! You totally lied to me!” But a lot of them are Senators and Representatives who would still loooove to find a way to make Hollywood happy while not getting tarred and feathered by constituents back home. The chatter on Twitter among the political set is that Pat Leahy (D-VT), who has drunk so much Hollywood Kool-Aide he pees purple, has retired to a backroom with Jon Kyl (R-AZ) to prepare a “managers amendment” that will purport to “address all the issues” (primarily the DNS blocking). The idea is to provide a fig leaf for members so that all the Senators and Representatives who caveated their opposition to PIPA/SOPA with the words “as written” can say “I had concerns, but they were addressed. Don’t worry constituents, I totally had your back and stood up to Hollywood even though I voted for the bill.”

Needless to say, the idea that you fix a lobbyist-drafted bill that is this utterly and comprehensively wrong by going into a backroom with the same lobbyists and trying to push a vote through before people can see it and debate it would be crazy anywhere but D.C. So we will need to continue pounding Senators with the clue-by-four of reason until either Reid finally calls off the cloture vote scheduled for January 24, or we win the cloture vote by keeping 41 Senators honest. My employer, Public Knowledge, has a nifty text-to-call feature you can sign up for so you can make absolutely sure you don’t forget to call your Senators on January 23.

You can find an excellent example of why pulling DNS blocking is not enough to fix PIPA/SOPA from my colleague Sherwin Siy here, and why PIPA/SOPA needs a total reset from my colleague Michael Weinberg here. Alternatively, you can watch this clip from last night’s Daily Show where Jon Stewart, as usual, manages a more in depth analysis that the supposed real news.

Stay tuned . . . .

SOPABlackout And the “Internet Spring”

January 18, 2012 should be remembered as the first day of the “Internet Spring.”

I like to say that the worst thing about PIPA/SOPA is that it confirms every awful, cynical thing people say about how Washington DC works. But the best thing about PIPA/SOPA is how it can also confirm the best things we say about American democracy.

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Smart Cities, Spectrum, and Senator Snowe — Will Any Republican Presidential Candidates Show Vision?

Thomas Friedman writes in his column yesterday that none of the Republican candidates has focused much on technological innovation, then proceeds to focus on the matter of “smart cities.” Friedman’s thesis is fairly straightforward: to maintain our competitive edge, we will need to keep pumping up our bandwidth, particularly in cities and towns which historically act as the incubators for The Next Big Thing and all its associated, Highly Useful Little Things. Blair Levin’s Gig U gets favorable mention, and Blair gets quoted a lot on why we want huge bandwidth in urban areas as well as making sure everyone gets access to functional broadband.

Let me give the Republican candidates that care (and I just know y’all hang on my every word) some advice. When you want to know where to stand on spectrum, follow the lead of Senator Olympia Snowe (R-ME). Most importantly, do NOT follow the lead of House Republicans. Why? See below . . . .

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Why The Eviction of Occupy Wall St. From Zuccotti Park Raised An Interesting First Amendment Question.

A bit off topic, but I couldn’t resist. For most folks, the question of whether the recent eviction of Occupy Wall Street (OWS) protesters from Zuccotti Park constitutes a violation of the First Amendment has very little to do with law and much to do with principle. Those opposed to the eviction note that the demonstrators were peaceful, the Mayor displayed clear animus to the protestors and their message, and that the claims of health and safety are mere pretext. Those who support the City’s actions argue that the protesters had essentially co-opted the park to the exclusion of other public uses and that the protesters were in violation of the park rules (usually eliding over the fact that the rules were adopted after OWS began) and that it is privatekly owned space in any event.

After reading the Order upholding the right of NYC and the owners of Zuccotti Park to prohibit tents and, potentially, other sleeping things such as sleeping bags, I believe this raised an interesting 1st Amendment Question for those of us who follow 1st Amendment law. Those interested in why this is actually an interesting question, rather than resolution of the question, can see more below . . .

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A Personal Reflection on the FCC’s USF/ICC Reform Order

A Personal Reflection On The FCC’s USF/ICC Reform

Yesterday, the FCC approved an Order addressing about 10 years of accumulated undone work in the telecom world and at least starting work on the more serious issues – such as interconnection for IP-based services – that will govern the next ten years. I have, no surprise, plenty of personal opinion about the substance and I expect that when the Order is published I will have my share of things to say and that some of them will be quite scathing, skeptical and snarky. Nevertheless, it is important to pause first and reflect on why yesterday’s vote represents a real accomplishment for Genachowski and the Commission. Similarly, it is important to appreciate the context of the Order and the limitations on the agency imposed by law.

None of this negates the very real and substantive criticisms that I and others will have – particularly with regard to the self-inflicted wound over the FCC’s legal authority. I have no delusion that hard work and good will somehow transform poor policies into better ones. My appreciation for what the agency did right and its limitations under law do not blind me to the part that political influence plays, nor does it somehow make it more palatable to those who feel that the outcome will make jeopardize their livelihoods or that we missed significant opportunities to do better.

But it is just as poisonous to public policy when we focus only on its flaws and failures as when we excuse them. It is not simply a matter of basic fairness, or that decisionmakers are human beings who do better when praised for what deserves praise. I believe failure to recognize the achievements and limitations of the policy process makes one a less effective advocate and prevents one from seizing opportunities when they arise. This is neither bogus pragmatism that counsels surrender and diminished expectations, nor delusional Pollyannaism that insists we live in the best of all possible worlds. The world is messy and complicated, and policy reflects that.

So, all that said, the accomplishments and context of the Order below . . .

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What’s At Stake in United Stated v. AT&T, Inc.? The Future of Antitrust. (Part I)

The Department of Justice (DoJ) Antitrust Division challenge to the AT&T/T-Mo deal, United States v. AT&T, Inc., in addition to being a huge deal for us in the telecom world, is probably the single most important merger review case for the next ten years. In two ways, this has become a battle about the future of antitrust enforcement and the soul of the Antitrust Division.

Yes, that sounds melodramatic, but I make no apologies. As I explain below, this case has become a test case for the nature of antitrust and whether traditional metrics of concentration and market share, notably the Herfendahl-Hirschman Index (“HHI”), coupled with the concerns that such concentration predicts both the ability of the largest company to raise process and for all surviving companies to raise process (the “coordinated effects” test), will still have validity going forward.  If the court accepts the arguments from AT&T and its defenders that the traditional measures of concentration are irrelevant, then antitrust review of mergers will essentially end for the next 5-10 years while economists and antitrust enforcers struggle to develop a new set of metrics for predicting the likely impact of mergers.

More importantly, however, this case represents a clear decision of the Antitrust Division to move ahead with enforcement despite the possible political consequences. Yes, politics has always mattered, and anyone who rises to the position of Assistant Attorney General for Antitrust has a well-developed political sense. The back channels for unofficial influence remain strong, and only a brave head of the Antitrust Division, whether or Acting or confirmed Appointee, seeks to challenge the most powerful and well connected companies in Washington.

But we have not yet reached the point where the head of the Antitrust Division decides to enforce the Antitrust law and the White House tries to pull it back. This may seem a small thing, but it is what separates us as a country that can still aspire to say it follows the rule of law and a country like Russia where  law enforcement is simply the extension of the policy of the ruling oligarchy. And I assure you, oh cynical reader, that when we cross that threshold you will know the difference between a society where influence matters and a society that has abandoned any pretense of the rule of law.

I shall reserve this second point for a separate post. I address the legal significance of the case below . . .

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Forget The First Amendment, BART Messed With The Phone System. Violated CA and Federal Law.

I suppose I am, at heart, really a telecom lawyer after all. My reaction to the news that the Bay Area Rapid Transit (BART) police shut down cellphone networks in a number of stations had nothing to do with democracy, the First Amendment, Tahrir Square, etc. With all deference to the importance of these concerns, my reaction was WHAT DO YOU MEAN THESE IDIOTS MESSED WITH THE PHONE SYSTEM! From my perspective, and the perspective of traditional telecom law, BART could just as well have turned off the local central office and all this chatter about whether or not BART is a public forum is just a distraction.

Obviously, however, no one at BART thinks of cell phones as the phone system. In BART’s open letter explaining what they did and why it was cool, BART focuses on the First Amendment /public forum issue and completely skips the fact that they shut off a phone system. Mind you, I suppose I can’t blame them – much. A number of folks are asking if there is a right to cell phone service as if there were a novel question rather than something settled by decades of telecom law.

Also missed by most: this goes well beyond BART. If BART gets away with including “we can shut down cell phone service” in its tool box you can guarantee that other local law enforcement agencies will start copying this – and all for the best of reasons. Because what could possibly go wrong when you pull the plug on a critical piece of infrastructure whenever some local police chief or city council person or whoever decides they need to do something about these “flash mobs” or “rioters” or whatever? BART emphasizes the narrowness of the impact. But Montgomery County, MD, where I live, is worried about an outbreak of flash mobs of teenagers that materialize to raid local stores. Suppose they decide to start turning off the phone grid in neighborhoods they believe are “at risk?” Sure, lets just knock out phone service for a neighborhood for a few hours. What could be the harm – and it’s all in a good cause, right?

There is a reason we do not mess with the phone system, and why that doesn’t change when the phone system is wireless.  Legal reasoning below . . . .

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