Senators McCaskill & Klobuchar Understand The Biggest Problem in Telecom Policy: Changing How Policy Gets Made

If their performances at Tuesday’s Senate Hearing on Universal Service Fund Reform (USF) are any indication, I am definitely going to become a huge fan of Frosh Senators Claire McCaskill (D-MO) and Amy Klobauchar (D-MN). After listening to FCC Commissioner Deborah Tate (who chairs the Federal-State Joint Board on universal Service that oversees the Universal Service Fund) explain that USF reform has stalled because it has been impossible to get “consensus” from the industry “stakeholders,” Senator McCaskill said:

What you’re basically saying to us is the FCC is incapable of moving forward on reform unless all the people who are making money say it’s OK, and that’s hard for me to get my arms around.

Senator Klobuchar echoed similar incredulity and disbelief.

I hope these two maintain that sense of disbelief and outrage. Because the ideas espoused by Tate on the proper role of the FCC and Congress have become so embedded in telecom policy that even friends of the public interest take it as a given.

But hopefully, thanks to McCaskill, Klobuchar, and the other progressive “freshmen,” that may change.

More below . . .

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

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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Watch Me and My Public Interest Buddies Beat the Odds At FTC Network Neutrality Smackdown!

Back in the summer the Federal Trade Commission (FTC) decided to get in on the Network Neutrality game. As I observed at the time, I’m skeptical the network neutrality will get a fair shake under FTC Chairman Majoris.

But, like the gambler who comes to the crooked poker den because “it’s the only game in town,” you gotta show up to play even if you think the odds are stacked. So I and a number of other public interest folks and sympathetic academics will face off against a less-than-level playing field at the FTC’s Broadband Task Force’s Competition Policy Workshop on February 13 & 14.

Why I consider this playing field “less than level,” and why we will still kick butt, below . . .

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GAO Report: Believing in Competition Doesn’t Make It Happen

Sometimes I think that the D.C. Circuit and the Republicans running the various Commerce Committees are the Arch Priests of Kiplings Gods of the Market, and it has brow-beaten the poor FCC through repeated reversals accompanied by tongue lashings into embracing this nonsense. The chief tenant of the Gods of the Market Place is that by deregulating the industry, competition emerges and consumers enjoy all the happiness that comes from a competitive environment. If this fails to happen as expected, adherents of the Gods of the Market practice a discipline called “Denial of Reality.” Practitioners of Denial of Reality believe that if you sufficiently discredit people who tell you about actual reality, and keep repeating that the reality you want actually exists, then Actual Reality will eventually by browbeaten into conforming to the reality promised by the Gods of the Market Place. And the FCC, like a good little penitent, keeps trying to produce reports that give the D.C. Circuit and the Republicans in Congress the world they want to see rather than actual reality.

Sadly, as GAO studies keep demonstrating, wishing for competition doesn’t make it so. This latest GAO Report on the lack of competition for business customers in major urban areas (and nicely explained in this piece here) is but the latest in a series of real world reports demonstrating that you can only ignore reality for so long before it bites you in the tender places. Sadly, however, it chomps down hard on the just and the unjust alike.

My analysis below . . .

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I Co-Author Paper On Why “Free Market” BS Work So Well In Policy

I found this item on Techdirt interesting. The article links to several techno-libertarians finding themselves in the uncomfortable position of evaluating the reality that (a) countries such as South Korea, Japan, Estonia, France (and more!) are now zooming ahead of us in just about every measure in broadband deployment and adoption; (b) these countries rocketed past us after they adopted intrusive regulatory regimes and market-warping government incentives; and, (c) our supposedly superior, libertarian, deregulatory approach has not produced the competitive and productive nirvana the theoretical literature promised.

So why do “free market” arguments keep working, so much so that just about every piece of state or federal telecom reform legislation introduced right now assumes that competition happens as a result of deregulation? Why, despite all evidence to the contrary, do Democrats and Republicans alike still rush to deregulate with the religious zeal usually associated with someone who just spotted a burning bush in their back yard? As the Techdirt piece shows, this can’t be explained by the usual cynical response that Congress and the FCC are wholly owned subsidiaries of the Bells or cable cos.

So my buddy Greg Rose and I have written a paper explaining why the same arguments keep working time and again for the 34th Telecommunications Policy Research Conference (you can see a rough draft here). As an aside (in the final version, not yet posted), I explain why Lakoff and his buddies should perhaps spend a little less time on the linguistics of framing and a little more time worrying about the structure of media. To paraphrase McCluen, “whoever owns the media frames the message.” In a world where the mass media can trigger riots by showing a picture of the Pope and pulling a single line out of an academic speech delivered to an academic audience, it’s optomistic to the point of delusional to believe you can frame a message just by picking the right words.

Basic summary below . . .

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COPE-ing nicely, thank you

Throughout the public interest community, one can find much wailing an gnashing of teeth over today’s Commerce Committee mark up of the Communications Opportunity Enhancement Act of 2006 (COPE). “A Bad Day for Media Democracy” reads the headline at Save Access.

Well, I’m not happy with COPE so far, but I think it turned into a good day for democracy, with better days to come. Because if you thought today was grim, you weren’t here for the absolute spanking net neutrality got in subcommittee in the beginning of April. In the week since the SavetheInternet campaign got underway, four democrats switched their votes on Net Neutrality from “anti” to “pro.” The day before mark up, the Republican chair of the House Subcommittee on Antitrust in the Judiciary Committee and their new task force on telecom declared all out war against the Commerce Committee effort to eliminate a free and open internet. The telcos, who earlier this month boasted they could get the bill past both houses and signed into law before the election recess, don’t sound nearly as confident despite today’s win.

What changed? Until the Subcommittee Spanking, folks let the tech companies do the heavy lifting and fought by the standard lobbying play book. Hill meetings, inside the beltway briefings, insider baseball, blah blah blah. Google v. Verizon, people said, and tuned out. And while the tech lobbyist worked with us public interest folks, one could not help but detect a certain — how shall I put it? — condescension and cluelessness as to how this “public interest” stuff really works. It kinda felt like posing for photo ops, while the “real” decisions about spending money on messaging and what strategies to persue and the ever-important smoke filled room meetings never involved anything as messy as the public.

And, as usual, the tech folks got spanked. Spanked real good. The kinda spanking you usually have to pay good money for if you fancy that kind of thing. Because despite having more money than the telcos and cable cos combined, the tech cos can never win using telco and cable co rules. Because the telcos and cable cos wrote the goddam rules and have played this game by this rulebook for a longer than most tech CEOs have been alive. As a result, the telcos and cable cos are very, very good at it. Meanwhile, as my friend and fellow traveller Jeff Chester at CDD observed the tech companies still can’t figure out how to play this game, or what they want to get out of it if they could figure it out. Or maybe they just like getting spanked, and miss the days when the intellectual property mafia would toast their little bottoms for them with legislation like the Digital Millenium Copyright Act.

So, while still working with the tech lobbyists etc., the folks in the public interest community finally said “Screw this. You guys may be into getting spanked, but we prefer winning. And the way you win in democracy is by busting open the process, getting people to see what’s at stake, and reminding elected officials that their job is to do what’s best for their constituents not to referee industry food fights.” And thus, through the work of Free Press, Common Cause, Moveon and a host of others, was the SavetheInternet campaign born. And when the mainstream media refused to cover the story as too technical or boring or against the interest of their parent mega-companies, 500 bloggers took up the cry. And all this free speech stuff, that the telcos and the cable cos and the memebrs of Congress ignored because it doesn’t have a trade group and you can’t quantify it in dollar terms, really worked. And more and more people are writing letters and calling members and reminding them that there’s an election this fall.

There’s a lesson here; one backed up by the utter triumph of the pro-munibroadband forces against proposed amendments to outlaw munibroadband, or even to grandfather existing state-level bans. YOU CAN’T OUTSOURCE CITIZENSHIP. You can’t let “the tech companies” or even “the consumer advocates” or anyone speak for you. Citizenship carries responsibilities that go beyond the ritual of voting every two years. But when citizens wake up and speak up, and speak to each other, they find — to their surprise — they are strong. They find they have power. And they find that being a citizen may take hard work, but it is so, so, SO much better and more satisfying than being a couch potato. As the great Jewish sage Hillel said: “If I am not for myself, who will be for me? If I am only for myself, who am I? If not me then who? If not now, when?”

Don’t get me wrong. I’m glad the tech companies are on our side. They have a lot to offer, lots of resources, and, if they decide they are tired of of playing by the old rules and getting spanked, can really help push this effort over the top. But if we as citizens let this degenerate to a fight with Google, Microsoft and Silicon Valley venture capitalists who like tech start ups on one side v. AT&T, Comcast and Wall Street analysts who like monopolies on the other, with Congress brokering a deal between the two, then we citizens lose no matter which side wins. We can, we must, speak for ourselves.

When Ben Franklin left the Constitutional Convention someone shouted to him from the crowd “Mr. Franklin, what have you given us?” He answered “A republic — IF YOU CAN KEEP IT.” The Sausage Factory of democracy is a messy business, but it’s worth it. We can either let other folks make the sausage and eat whatever shit they put in, or we can wade in and make sure it comes out alright. We lost today’s battle. But we are turning the tide in the war. And if we keep growing and going like we have in the last week, we will win.

Stay tuned . . . .

Outsourcing Big Brother

I gave this speech last July at the ACLU Biennial Conference in New Orleans. At the time, the news that major telcos and search engine companies were cooperating with the government by providing all kinds of personal infomration had not yet hit the press. I was just applying logic.

It seems useful to me to publish here as a reminder that the recent headlines are not an aberration or the work of a few evil or gready or misguided men. It is the inevitable result of a system that concentrates power and information in the hands of a few large coorprations with every interest keep those in government happy.

We don’t ask chain saws to distinguish between human beings and trees. They are inanimate tools. If you turn it on, it cuts through things. If you want to make it safer, you need to put on safety locks and other devices, or someone is likely to cut his or her own leg off by accident some day.

Similarly, it is ridiculous to depend on corporations to defend private information. They are designed to maximize revenue for shareholders. This does not make them good or bad, greedy or virtuous. It makes the corporation a tool. If we, as citizens of democracies, care about our civil liberties, then we need to install some safeties.

Stay tuned . . .

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My Take on WSIS and DNS

I will be the first to acknowledge that some good came out of World Summit on Information Society (WSIS) last week in bringing together a lot of people to talk about important issues. On the key item in the news, what would happen to ICANN and management of the domain name system, the U.S. won hands down. And while I have no desire whatsoever to see the DNS run by some UN-type organization, I understand why the U.S. is not exactly popular in other countries.

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Tales of the Sausage Factory: I Am Now on the Sh–list of the Wall St. J. Editorial Board. Go me!

Well, actually my boss, Andrew Jay schwartzman, and my organization, Media Access Project. But since MAP has only three attorneys and one admin staffer, I think I’m entitled to crow a bit.

The WSJ is a pay site, so I can’t provide a link. And copyright prevents me from reprinting the editorial — which appeared in the print addition of the WSJ on Dec. 30, 2003.

But to see my more detailed comments, see below.

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Tales From the Sausage Factory: Telephone Competition in the U.S.

I’m taking the opportunity to post a little essay I wrote when I moved last March. It illustrates the problems of implementing domestic phone competition in the U.S. I have no reason to believe that anyone in either company (Verizon or Cavalier Telephone) were trying to screw us or were playing fast and lose with the rules. Each one was genuinely trying to do its job, and all the people I talked with were uniformly polite, friendly, and well intentioned. I love well intentioned people, they provide me with such great paving stones that the handcart I’m in rides smooth to the end. . .

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