Tales of the Sausage Factory

An insider’s view of the media hegemony

FCC Google “Spy-Fi” Investigation To Establish Network Neutrality Authority? Thanks Scott!

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Scott Cleland is mad at Google. This is not much of a surprise. Scott Cleland spends much of his time mad at Google and wishing terrible things would happen to them. This time, Cleland wants the FCC to investigate and punish Google for their collecting user data while sending their truck fleet to find open hot spots as part of their “street view” project. The FCC has confirmed it is investigating Google’s conduct. Cleland hopes the FCC will throw the book at Google.

I’m also hoping the FCC will act. But having pondered this for awhile, I’m not sure Cleland understands precisely what an FCC action against Google would mean for issues like network neutrality and regulation of wireless broadband access. Briefly, it would require the FCC to either assert authority over all unlicensed spectrum and passive reception under some combination of Section 301 (47 USC 301) and Section 302 (47 USC 302a) of the Act, or authority over wireless broadband pursuant to Section 705 (47 USC 605). While this does not trouble me, evil pro-regulatory big-government free-market hating Socialist that I am, I am rather surprised to see those (like Cleland) who usually want the FCC kept at arms length begging the FCC to charge into the fray and extend its authority over Google, especially when such an expansion of authority would extend to network neutrality regulation as well.

More below . . . .

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Protecting The Future of 3D Printing, Don’t Let the IP Mafia Rob You of Your Right To A Replicator.

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My colleague Michael Weinberg at Public Knowledge has written a truly awesome piece on 3D Printing and how folks should organize now to prevent the IP Mafia from screwing it up. You can see the full white paper here.

For those unfamiliar with it, 3D printing is the closest thing yet to the Star Trek replicator. You place a physical item in the machine and the machine makes a replica. As explained in the article, we are now at the point where 3D printing can replicate devices with moving parts. You can get a lot more info on 3D printing on PK’s issue page. There are a lot of very obvious advantages to this technology and many potential cool applications — especially as the technology advances. It also challenges a lot of business models and assumptions based on existing copyright, trademark, and patent law.

More below . . .

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Did You Know This Election Turned On Network Neutrality? Why Washington Has Its Head Up Its Rear End.

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Apparently, the election results last Tuesday were a “national referendum” on network neutrality. I’m not sure how I missed this, but the constant repetition of this idea in the blogosphere and on Twitter has now utterly convinced me and everyone else in the Washington Echo Chamber that is totally true. In fact, I am assured that the only reason I refuse to acknowledge this fundamental truth is that I am in deep denial.
For those readers outside Policyland, you may wonder how government officials entrusted with making decisions that actually impact your lives could come to believe something so plainly ridiculous. In all of the various “lessons learned” pieces out of the election, no one outside the Telecom neighborhood of Policyland has even suggested this is the case. But, through the amazing combination of narcissism that puts us at the center of everybody else’s universe, the utter certainty with which people around here make ridiculous statements, and the sheeplike willingness of people on both sides of the debate to retweet this at each other, I now have people asking me about this and whether I think it’s true.

This is why Washington is broken and out of touch with America. There is a difference between stuff that is incredibly important because it has real impact on people’s lives, which applies to a lot of the policy work here in DC, and stuff that people care about, which is not a heck of a lot that goes on in DC. I wish it weren’t so. I would love it if we lived in a nation of policy wonks where the difficult details of national policy are the stuff of kitchen table conversations and earnest discussions at social gatherings.
However, I can assure you from personal experience that trying to engage people in detailed conversations about telecom policy is about as popular with normal people as the intimate details of your last root canal.

Still, as a case study in how conventional wisdom evolves in Policyland, this may amuse some of you non-DC folks. More below . . .

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The Fox/Cablevision Retrans Mess And FCC Learned Helplessness — The Insanely Long Version

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[This is a much longer, wonkier version of a post I did on the Public Knowledge blog, for those who can’t get enough explanation of Section 325.]

I feel a good deal of sympathy for FCC Chairman Julius Genachowski over the ongoing fight between Fox and Cablevision. My brother the educator likes to say that “responsibility without authority is trauma.” Or, in other words, if you are responsible for something, but don’t actually have the authority to do anything about it, then the only thing you can do is suffer when things go wrong. So it is for Genachowski and Fox/Cablevision — under the FCC’s current rules. But here’s the funny thing. The FCC actually has fairly strong statutory authority to take action. So while Genachowski is in a bind, he can actually fix the problem. He even has a vehicle all teed up and waiting in the form of Public Knowledge’s Petition to change the “retransmission consent” rules (I’ll explain what those are below).

So how on Earth did the FCC get reduced from the “cop on the beat” to pathetically tweeting the playoffs? The answer lies with over 15 years of deliberately learned helplessness and rulemaking that I can only charitably describe as auto-castration. Twice, in 1992 and 1999, Congress explicitly directed the FCC to make sure that broadcasters don’t abuse the retransmission consent negotiation process (or as we telecom policy wonks like to call it, “retrans”). Each time, the FCC went out of its way to develop rules that systemically divested itself of all capability to act. So although Congress gave the FCC the job of consumer protection cop, the FCC kept angling for the job of “palace eunuch” to the Media Barons. For 15 years, the FCC has loooooovvvved its job as Palace Eunuch for the Media Barons, wearing a very impressive Palace Eunuch uniform with those great big baggy pants and the cute little fez and toy sword it waves impressively when it tells members of the public to move along and stop trying to hold big media companies accountable for their public interest obligations.

Happily for Genachowski, he can trade in the silly, baggy Eunuch pants for bold, powerful “man pants” the Republican women keep talking about as the fashion accessory for the season. Or Genachowski could do nothing, which will give him time to go shopping for a nice pair of those little pointy shoes with the bells on the toes to go with the baggy Eunuch pants.

Wonky legal details below . . . .

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Genachowski Enters FCC In 12-Step Program To Stop Consumer Abuse

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“The first step in recovery is admitting you have a problem.” So goes the self-help cliché. For regulatory agencies, the first step is admitting that industry has a problem and that the wonderful happy world of the unregulated market – no matter how wildly competitive it might or might not be – doesn’t always protect consumers and that in fact, sometimes, free market dogma to the contrary, you actually reach the best result for everyone by having government set basic rules of disclosure and enforcement (the classic paper on this being George Akerlof’s oft-cited “The Market For Lemons”). The recent experience with the meltdown of the financial services sector and its ongoing tribulations provide rather vivid proof that “trusting the market” and waiting for “proof of a problem.”

Which brings me to FCC Chairman Julius Genachowski’s latest app release for Genachowski 2.0 – the Relaunch. With network neutrality on the backburner until after the election, Genachowski has taken the opportunity to get the agency on track with its substantive agenda. In addition to moving forward for the second month in a row on significant National Broadband Plan Items (White Spaces last month, CableCARD and Mobility Fund this month), Genachowski has started taking the FCC in the welcome direction of consumer protection.
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Sorry AT&T, Title II Would Not Require The FCC To Allow Paid Prioritization.

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AT&T has raised a bit of buzz recently with claims from their policy folks that under Title II, AT&T could still do paid prioritization (aka “fast lanes,” “toll lanes,” or, as I like to call it in honor of the man who so clearly laid out the concept “Whitacre Tiering” — but that one sadly never caught on). The implication of these recent statements apparently being that (a) Title II is therefore sooooooo not worth it; and, (b) the demand by whacky-crazy-socialist-radicals to prohibit paid prioritization is just more whacky-crazy-radical-socialist stuff, so pay it no mind. One might ask, if so, why AT&T has invested so much money in demonizing Title II when it supposedly would require the FCC to allow paid prioritization, but I digress.

Instead, let’s play stupid fun lawyer games and try some legal analysis. Ooooooohhhh!!! I love that game! It makes me all nostalgic for a time when we actually filed pleading at the FCC and debated these issues before agencies in a public record rather then in blogs (which tells you how pathetically old I am). Besides, all kidding aside, debating actual law and precedent with with some of the other lawyer types willing to play law games is one of the few intellectual pleasures remaining to me in Policyland these days, given the way this usually degrades to blah blah Socialist blah blah. Heck, I may even see some substantive reply.

My short answer is that while Title II would allow the FCC to permit paid prioritization, in a non-discriminatory manner, it does not compel the FCC to permit paid prioritization. Further, while Title II would not require the FCC to prohibit paid prioritization, it would give the FCC authority to prohibit paid prioritization. Indeed, I first addressed this back when Genachowski announced his “3rd Way” proposal. At this point, the more results oriented can skip directly to the comments to tell me how socialist stupid I am, or describe how evil AT&T is (depending on your preference). Those interested in a little law and policy, see below . . .
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Broadcasters Try To Embed Denial of Service Trojan Horse In White Spaces Rules

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The official agenda for the FCC’s September Open Meeting on Thursday lists the broadcast white spaces as one of the items. This Order will resolve the details left hanging from the 2008 Order (although it now appears that it will not select the database operator), finally allowing development of this technology and forming the foundation for the next generation of unlicensed wireless technology.

Or maybe not. Even more than usual, this Order relies on getting all the details right. The limitations and interference mitigation mechanisms have left very little in the way of usable spectrum in the largest urban markets most attractive to manufacturers. Lose what’s left and you lose national markets necessary to interest developers and achieve economies of scale. Do anything further to drive up cost of manufacture or add a new layer of uncertainty and would-be developers – who have already been at this for [8 years] and poured millions of dollars into prototypes and pilot projects -– will likely pull the plug and walk away. Anyone who remembers such promising technologies as ultrawideband should recognize the death by a thousand cuts approach favored by incumbents.

[We’re having some technical issues here at Wetmachine, so I can’t link back to my previous posts on White Spaces. Sorry about that. Hopefully it will get resolved soon.]

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The FCC’s September Agenda: A Smarter, Tougher Genachowski? I Hope So.

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It’s no secret I and others have started to question whether Genachowski has what it takes to get things done in Washington. But at the same time, I’ve continued to hold out hope that Genachowski will reassess and reposition himself in time to leave behind a serious legacy of accomplishments.

The proposed September Open Meeting agenda shows that Genachowski may be preparing to do just that. In addition to an important but relatively uncontroversial E911 item, the agenda includes two items that promise to have significant impact, but will also likely generate at least some resistance from significant industry groups. The order selecting a database manager and finalizing rules for the use of the broadcast white spaces will make significant new spectrum available for broadband, will likely face a last minute push from broadcasters and the wireless microphone interests that have opposed it. The E-Rate order will make it easier for schools and libraries to purchase dark fiber rather than retail broadband service, and to purchase dark fiber through a competitive bidding process that would also allow government entities to offer dark fiber. This faces stiff opposition from AT&T and other telecom providers, who prefer that USF subsidize retail broadband access services provided by themselves.

These Orders, combined with the FCC quietly telling M2Z to give up hope of getting any spectrum for its proposed free-with-a-pay-tier broadband service, show a new willingness for Genachowski to do something he hasn’t done yet but desperately needed to do: say “no” to people who will squawk – loudly. As I noted in my previous moral exhortation piece, willingness to say “no” and take heat for it is the sine qua non of getting anything worthwhile done in Washington DC.
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Web dead? Some Reactions To Chris Anderson’s Wired Piece

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A lot of folks have reacted to Chris Anderson’s deliberately provocative piece in Wired: “The Web Is Dead, Long Live the Internet.” I have two chief reactions. One is a methodological one — Anderson gives no justification for reliance on percentage of total Internet traffic as being a measure of anything in particular from which we might draw conclusions. I am hardly the first to note, for example, that according to Anderson’s chart, DNS traffic ceased to matter by the mid-1990s, a conclusion dramatically contradicted by actual reality.

But my chief criticism is substantive. Anderson — perhaps unintentionally — does an excellent job recapitulating Karl Marx’s original Socialist critique of capitalism, i.e., that it will invariably reduce to a monopoly or cartel structure exacting monopoly rents (although he leaves off the part about it eventually collapsing under its own inefficiency, the workers seizing the means of production, yadda yadda yadda). But his conclusion is that such is human nature and we ought to just suck it up as long as we keep getting cool stuff. (Aps are the opiates of the technorati masses, apparently).

But there is a reason I am not a socialist (despite claims of some critics to the contrary) and instead brand myself as a member of the Congregation of the Progressive Capitalists.  Anderson notes that “Monopolies are actually even more likely in highly networked markets like the online world. The dark side of network effects is that rich nodes get richer.” But he overlooks the ability of public policy to prevent that from happening. Anderson appears ignorant of the role of such things as the FCC’s Carterfone decision and subsequent rulemaking, or the role of the Computer Inquiries in creating the conditions for the growth and development of the Internet and the applications that ride on it, including the Web.

Accordingly, if we ignore the methodological problems and accept the underlying economic argument, the solution is not to develop ill-suited analogies based on the happenstance that we can somehow define “the Internet” as “post-adolescent” to somehow rationalize our loss of freedom. To the contrary, if we are really seeing the decline of the Web and the rise of the App, we have a policy choice to make. We can do nothing, and follow Anderson’s inevitable slide from the open world of the Web to the closed world of the Ap. Or we can do what we did to the wireline world 40 years ago in the FCC’s Carterfone and Computer proceedings and wedge the system open.

Put another way, we can still save the vibrant free market on the web through a little proactive regulation, rather than accept Anderson’s “inevitable” collapse.

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What Dems Have To Lose If Genachowski Embraces The Latest “Net Neutrality Consensus.”

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I occasionally suspect my colleagues in the Public Interest community lack a sense of humor — although perhaps it is simply that I am in a more relaxed frame of mind after my annual vacation from the 21st Century. I am neither surprised nor outraged at the recent news that members of the Information Technology Industry Council (ITIC) are picking up where the FCC “secret meetings” left off and trying to come up with a net neutrality consensus framework. To me, it seems rather sad and funny. My only surprise is that even in Washington, the notion of an industry trade association working with its members is anything unusual or significant. I mean, that’s what industry trade associations do after all.

The sad thing is that, given the utter genius the Obama Administration has shown for pissing off the Democratic base through constant waivering, there is every reason to believe that the FCC might be tempted to view what comes out of this “industry consensus process” as something it can embrace to its bosom. This would be a disaster not merely for Genachowski and what remains of his reputation, but for Congressional Democrats as well. If there is one unequivocal lesson that came out of the Goog-VZ debacle last week, it is that the Netroots care deeply about this issue. While I get that the DC establishment considers the Netroots something of an embarrassment (or, as Rahm Emmanuel famously opined, “bleeping retarded”), Congressional Democrats understand that unless the Netroots (a) keep giving money, and (b) turn out and vote, they are toast — as evidenced by Alan Grayson’s abrupt about face from his previous “let Congress handle it in our own sweet time” to “Congress and the FCC must step up now.”

More below . . . .
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