Tales of the Sausage Factory

An insider’s view of the media hegemony

Some Quick Updates Goog-VZ Reaction Craters Industry Talks, BTOP Recision of $300 Million Back Again.

Well this was a fun week.

First, it turns out that the public — when actually confronted with the prospect of two giant companies dividing the internet between them — is less than thrilled with the prospect of watching the market work its magic. Bet Alan Grayson is sorry he sold out now.

If Mr. Grayson would like to show his support for real Net Neutrality, how about his co-sponsoring the Markey-Eshoo Bill? He (and all the other Dems who profess their undying love of Net Neutrality) could show they really mean it by actually co-sponsoring a bill with strong, enforceable, net neutrality conditions.

On the downside, the Senate stripped out $300 million from BTOP again. This time, it does not look like there can be an over-ride. Because when you are Democrats, if you have a stimulus program that’s actually working to create jobs and infrastructure for the future, the thing to do is gradually dismantle it to appease Republicans. _sigh_

Stay tuned . . .

Genachowski’s Fast Fading Star — And How He Can Still Salvage His Term As Chairman.

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There’s a phrase I hear a lot these days. Sometimes I hear it from angry folks, muttering under their breath. Some say it sheepishly, with a trace of embarrassment to find themselves saying it. Some pass it off as a joke. The phrase?

“I never thought I’d miss Kevin Martin, but . . . .”

No one can doubt that Julius Genachowski has emerged as the absolute opposite of Kevin Martin. Unfortunately, this includes a stunning inability to make decisions, combined with an ability to generate his own political opposition by dithering. This does not simply apply to the current fight over FCC broadband authority. It applies to everything, including what was supposed to be his big signature issue from the National Broadband Plan — getting 500 MHz of spectrum available for broadband.  A perusal of the last year of FCC orders and Commission meetings shows a non-stop stream of reports, studies, and proposed rulemakings. The only actual orders involve things so non-controversial and trivial that they hardly constitute tweaks. It does not help that Genachowski manages to give every impression that while he enjoys jetting about to industry conferences and rubbing elbows with the media elite, he does not appear very interested in actually doing the work of Chairman.

As if to underscore this point, the Agenda for the FCC’s August 5 meeting has only two items: Amendments to the FCC’s hearing aid rules and a proposed rulemaking and NOI on wireless backhaul. While certainly useful items, the FCC could easily have handled these on circulation. Meanwhile, critical elements of the Chairman’s agenda, such as auction of the D Block, final rules for the broadcast white spaces, incentive auctions for broadcast television licenses, special access reform — in short, anything that matters enough to get anyone mad if they lose — languishes. David Hatch portrayed this in a recent National Journal article (sorry, sub required), David Hatch described Genachowski as under attack from Congress. But the sad truth is that Genachowski creates his own opposition by his stunning refusal to actually make decisions and lead. This gives opponents time to organize, frustrates and exhausts supporters, and undermines support for Genachowski’s initiatives. (Why put yourself out for someone who isn’t ever going to actually take action?)

As I said at SuperNova 10, I don’t say this to be mean or simply to vent. To the contrary, I believe Genachowski can still act quickly and decisively to achieve important things and rescue his reputation and legacy.  Below, I outline three recent examples — broadcast white spaces, D Block, and general broadband authority — where Genachowsi’s failure to seize initiative and show leadership has resulted in generating his own opposition and diluting his support. I then recommend some general steps Genachowski can take to restore his fading star and rescue his agenda. In the end, however, it is up to Genachowski.  He can keep trying to be liked, avoiding anything that might piss someone off, and live the rest of his term in a Chairman-bubble carefully insulated from criticism. Or he can grit his teeth, decide on what fights — win or lose — are worth doing, and start doing the hard work of making real decisions.

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Why We Care About Broadband Policy, Not Competititon.

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I’m back from my week of travels, where lousy broadband connectivity prevented me from blogging my trip to the NARUC Summer Conference and trip to Netroots Nation. Hopefully, I will get to fill in some of the blanks. NARUC (the National Association of Regulatory Utility Commissioners) passed some good Telecom resolutions supporting the FCC’s reclassification of broadband back into the Title II telecom box (although reminding the FCC that states have an important role to play and therefore to use preemption sparingly), and urging the FCC to address early termination fees for cell phone services.

So to get the ball rolling, here is a reprint of my opening remarks in the “framing debate” between myself and Ray Gifford from our Wed. morning NARUC Telecom session. As regular readers know, I’ve argued that things like Network Neutrality are right as a matter of economics (that is, they promote a better economic outcome for everyone: see economists make this argument here and here), that it is critical as a matter of First Amendment freedom and to prevent “virtual redlining.” Below I add an additional argument, what Ray characterized (and I agree) is a “progressive era” argument for why we care about broadband policy.

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My Travel Schedule For The Next Two Weeks

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I haven’t had a lot of time to post a lot lately, which actually bums me out a great deal. It’s been an insane time here in telecom land, for all that we seem to be running in place. Eventually, I will get to blog about things like the Comments we filed in the FCC’s Third Way Proceeding, and the 40–gajillion things going on in spectrum (NONE of which are the White Spaces Proceeding. Damn! When is unlicensed gonna actually see a little love?) Meantime, however, I am doing a bunch of travel an speaking appearances in the next two weeks, and would love to see anyone whose schedule coincides with mine.

On Monday, I am flying out to Sacramento for two-days at the Summer Committee Meetings of the National Association of Regulatory Utility Commissioners.  I will be speaking on a panel about the National Broadband Plan at 3:30 p.m. Tuesday, July 20 The next morning, I’m going head-to-head with Ray Gifford of PFF about the virtues (or lack thereof) of the FCC’s “Third Way” Proceeding. While summer in Sacramento with a hotel full of regulators and policy wonks is probably not most people’s idea of a fun time, I hope that those who do come and who read this blog will look me up and say “hi,” as well as show up to cheer me on at the panels (or cheer Ray on, if you you are so inclined).

After NARUC, I am proceeding on to Netroots Nation, where I will be preaching the Progressive Telecom gospel (and why other progressives should care when there are sooooo many other issues demanding attention.) I’m not on any panels, but I am definitely planning to attend the one on Protecting Rights In The Digital Realm on Thursday, July 22, at 10:30 a.m.  A bunch of folks are also organizing an informal social event around Net Neutrality and Title II, details as soon as I have them.

Again, I’d love to hear from anyone who reads this blog who will be there. I’ll be there from Wed. night to Friday morning, so hopefully I’ll see some of you there.

Finally, July 29 I will be going to SuperNova — Kevin Werbach’s amazing conference on future trends. I’ll be speaking with Rick Whitt and Rebecca Arbogast on “The Broadband Challenge,” at 1 p.m. July 29. That one is in Philly, so at least it does not require changes of time zone.

I expect to be tweeting these events (assuming my phone holds out). You can follow me on Twitter at haroldfeld. Or on Facebook . Hopefully, I will also be able to get some decent substantive postings here, on the PK Policy Blog, on HuffPo, and on TMCNet (for someone with no time to blog, I have a lot of places I’m not blogging).

Stay tuned . . . .

What Do WiMax, WiFi, Bluetooth and VOIP All Have In Common? A Very Active “Afterlife.”

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With the rise of LTE, we find great woe and tearing of hair among the supporters of WiMax. Intel, long a WiMAX booster, closed it’s Taiwan WiMax office and it seems you can’t swing a dead iPad these days without hitting another story about WiMax’s woes and its upcoming demise in the face of LTE.

Mind you, I can remember back in 2004 when the WiMax posse (as I liked to call them) swore that WiMAX had slain wifi and all those folks investing in wide-area mesh networks using sad little unlicensed wifi had wasted their money because WiFi was dead! dead! dead! This, of course, will come as news to both Cablevision and AT&T, both of whom announced major wifi network builds in the last few months.  And, of course, Wifi itself previously “killed” bluetooth, which is why it is so hard to find bluetooth enabled devices anymore.

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Deficit Cutting Fever Threatens Broadband Stimulus Payouts

Politicians, news reporters, and now voters have become obsessed with deficit reduction. Not surprisingly, I find myself in agreement with Paul Krugman and other economists who have argued that we failed to spend enough to restart the financial engines of our economy and now appear ready to compound the error by repeating the error of 1937 when Roosevelt cut back on deficit spending and sent the nation back into the Depression. Unfortunately, this “deficit cutting fever” now threatens the money previously allocated for the broadband stimulus programs.

A proposal by Senator Baucus would cut approx $300 million from BTOP and $300 million from RUS to help fund extensions of unemployment benefits and other more popular stimulus measures such as — surprise! — extensions of various tax credits. (Rep. Obey would cut the same amount, but as part of the and supplemental funding for the Afghanistan and Iraq Wars.) While I certainly don’t begrudge extending unemployment benefits (I do think tax credits are rather worthless for motivating corporate behavior in light of how few corporations end up paying corporate income tax), I absolutely question the wisdom of pulling funding from stimulus programs that are not only creating jobs now, but helping to transform our future.

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Action Alert on ACTA and My Latest Video Explaining How To get ACTA Passed.

The Senate Judiciary Committee is holding an oversight hearing today on the Office of the Intellectual Property Enforcement Coordinator (IPEC, aka the “IP Czar”). Yesterday, IPEC issued its first ever Report on U.S. intellectual property enforcement.  Despite much trepidation that it would come out as the usual one-sided “we must do whatever Hollywood says, treat our customers as potential criminals, and generally act like clumsy arrogant idiots,” it turned out pretty reasonable (even given our standards started abysmally low). You can see my employer PK’s press release here. Critically, the report contained language reflecting the need for balance between mechanisms that ensure that creators get paid while ensuring that people can keep building on previous work (that whole ‘seeing further by standing on the shoulders of giants‘ thing). Here’s the money quote from the report:

One of the reasons that the U S is a global leader in innovation and creativity is our early establishment of strong legal mechanisms to provide necessary economic incentives required to innovate.  By the same token, fair use of intellectual property can support innovation and artistry Strong intellectual property enforcement efforts should be focused on stopping those stealing the work of others, not those who are appropriately building upon it.

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What BITAG (and MCDowell) Can Learn From ICANN.

Unsurprisingly, Commissioner McDowell’s dissent to starting an inquiry into the FCC’s broadband authority contained a reference to the new “Broadband Internet Technology Advisory Group” (BITAG). For those who missed the press release, BITAG consist of engineers from a variety of broadband industry segments chaired by Dale Hatfield at University of Colorado at Boulder. Given that BITAG has a bunch of smart folks — especially Dale, who is one of the smartest and nicest guys in this field — and a reasonable cross-industry representation, it may actually come up with some interesting stuff (hence the cautious endorsement from my employer here). Predictably, however, a chorus of Libertarian True Believers, and the “government-can-do-no-right (but hurry up with my subsidy check!)” crowd argue that this represents “industry self-regulation” and that FCC should therefore hold off on doing anything for the foreseeable future. Despite explicit statements from some participants that this does not in any way, shape, or form replace the need for FCC oversight, it does not surprise me to see McDowell again championing the idea that private sector regulation through BITAG and similar institutions provides a better way to protect consumers and encourage innovation and investment than actual, enforceable rules.

I snidely tweeted at the time “One ICANN Mtg will cure McDowell of his love of self-regulation.” For those not familiar with the Internet Corporation for Assigned Names and Numbers (ICANN), it formed back in 1998 when the Clinton Commerce Department avowedly wanted to “privatize” management of the domain while simultaneously making sure their buddies in the trademark lobby got protected. ICANN, now debates such “technical” matters as the appropriate level of cross-ownership for new generic Top Level Domains (gTLDs), has a sprawling bureaucracy, a budget of more than $60 million (US), and generally makes the FCC look like greased lightning when it comes to actually getting stuff done.

ICANN provides a lot of good lessons for the BITAG in what to avoid and a caution about trying to make technical standard setting the equivalent of regulation . . . .
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Update on Coulton-gate: Copyright So Confusing Even Creators Get Confused Over Who Holds What.

Last night I received an email from Jeremy at Viacom:

“Hi Harold.  A good deal of your post about “Flickr” was incorrect.  In the interest of being as informative as possible to your readers, you should check out: http://twitter.com/jonathancoulton/statuses/15804884261″

 

As always, what I love about copyright flaks is their commitment to courtesy. How could I resist such a charming invitation? Following the link, I found this Tweet from Jonathan Coulton:

“Oops – turns out I gave iFilm permission to post flickr in 06 before they were Spike.com. Viacom does not owe me $37. Sorry Viacom!”

 

Which rather underscores the point I was making. In this world where all variety of rights are traded back and forth, even the artist can’t always tell for sure if his/her rights are violated. Nor, as I pointed out, are Coulton and Viacom alone in being confused over who owns what. The last few days saw the New York Times demand Apple pull the Pulse iPad newsreader for violating rules about how it makes its RSS feed, then allow it to return a day later.

 

Under the standard for “graduated response” demanded by content companies like Viacom, and being pushed in such agreements as the Anti-Counterfeiting Trade Agreement (ACTA) the mere accusation of IP infringement can get your internet access cut. Nor do these proposals fron the content industry generally provide for any sort of challenge process. So if we were applying “graduated response” to Viacom, they’d still have “one strike” against them despite being ultimately vindicated by the creator himself. Had the initial story triggered a copyright filter, Viacom would have lost revenue from lost sales with no opportunity for recourse.

 

Which brings me back to where I started yesterday — knowing who holds the rights to what these days and figuring out what rights you have is damn complicated; even huge companies and the creators of content sometimes have trouble keeping track.  Jonathan Coulton honestly can’t tell at first glance that a company is using rights from a predecesor in interest, and Steve Jobs — despite his iron grip on Apple’s App Store — can’t gaurantee that an RSS feed aggregator meets all the licensing terms for every feed. But people expect an ordinary person downloading a video clip or some guy trying to create some new technology or business can figure it out? Or worse, they expect some magic copyright filter can figure it out?

 

It’s a little much to expect Viacom, or the rest of the copyright maximalist crowd, to learn from this that “false positives” occur and that for those wrongly accused (even if ultimately vindicated) a system of “guilty until proven innocent” is outrageously unfair (and potentially devestating if you aren’t Viacom or Apple). Heck, judging from the tone of the email I got alerting me to Coulton’s tweet, it’s probably too much to expect them to learn a touch of humility about copyright and enforcement. But I do hope that the Policy Mandarins here in the Forbiden City of Washington, who buy into the simple storyline that copyright is easy so what could be the harm with adopting filtering or 3 Strikes, will start to have some second thoughts.