Tales of the Sausage Factory

An insider’s view of the media hegemony

So Much For All That “We Are A Nation of Laws” Stuff . . . .

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This past month saw, practically unmarked, the anniversary of the Saturday Night Massacre, in which Richard Nixon’s refusal to turn over the secret tapes sought by Special Prosecutor Archibald Cox for information relevant to the Watergate break-in. Nixon offered instead to turn the tapes over to a trusted Senator, who would provide the Special Prosecutor and interested members of Congress with summaries. The “massacre” involved firing the Attorney General and the Deputy Attorney General before Nixon found someone (Robert Bork) willing to fire Cox, because Cox refused to drop his subpoena for the tapes and accept Nixon’s compromise after D.C. district court Judge John Sirica denied Nixon’s claims of executive privilege.

Congress then had a choice. Whether to back down and accept the Nixon compromise on a theory that it would avoid a Constitutional crisis while maintaining a fig-leaf of Congressional oversight, or to appoint a new special prosecutor who would continue to demand the President honor the Congressional demand for the tapes. Congress chose the later, and the case went all the way to the Supreme Court, which ordered the President to respect the subpoena and turn over the tapes. A week later, Nixon resigned. At the time, many commentators and scholars saw it as a signature moment in the triumph of the rule of law and a vindication of the principle that the United States is a country of “laws, not men.”

Sadly, we now face another such signature moment. President demands not merely approval of his domestic surveillance program, but wants retroactive immunity for the phone companies that provided the Administration with customer information, lest a court determine that the telcos thereby violated Section 222 of the Communications Act and other provisions of law. Again, scholars and civil rights activists raise grave concerns about how allowing the President to defy the law creates serious concerns about maintaining the Rule of Law and respect for the Rule of Law. Again, we the people look to our elected representatives in Congress to stand firm and protect the rule of law against the encroachment of a Chief Executive convinced that he should have the freedom to act for the greater good. Unfortunately, this time, it looks like the Democratic leadership may prove a weak reed upon which civil liberties cannot trust to lean. Unless, of course, the people rise up clearly in one voice to say, in the words of Rudyard Kipling:

All the right they promise -— all the wrong they bring.
Stewards of the Judgment, suffer not this King!

More below . . . .

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Tribute to Becky Lentz

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I occasionally grouse that no one in mass movements ever remembers the lawyers, or why else does my employer Media Access Project keep needing to check behind the couch cushions for loose change, given our track record? But I live in the bloody spotlight compared to some of the others that have made the modern media reform movement possible. Which is why I want to take a moment to give Becky Lentz, formerly of the Ford Foundation, a big shout out.

For the last 6 years, Becky worked at the Ford Foundation as program officer for their media policy and technology portfolio. In her own way, Becky had as much to do with the victories of the last few years in resisting – and in some cases rolling back – media concentration and promoting positive change. Last month, Becky’s term ended and she returned to Academia.

What makes Becky Lentz an exceptional figure when they write the history of the media reform movement? See below . . . .

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Look! My Solution Found A Problem! Comcast Degrades BitTorrent Traffic Without Telling Users.

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O.K., free speech issues are always sexier. Nothing gets the public (or me) wound up like blocking NARAL or censoring Pearl Jam. But, as Ecclesiastes tells us: “Money answers all.” (10:19) At the very least, it tends to rivet people’s attention without the distraction of whether or not you like the speaker or the message.

So I was quite pleased to see the Associated Press run this story on how Comcast degrades BitTorrent traffic in the name of quality of service (QoS), especially after Comcast had denied such rumors as vicious lies last August. (Where is Mona “the Hammer” Shaw when we need her?) While my friend Greg Rose on Econoclastic gives his (to my mind quite plausible) theory as to why Comcast would engage in such blocking on a large enough scale to be worth getting caught, I would like to play out the public policy implications of Comcast’s actions.

As I discuss below, this recent episode underscores several of the critical points I have made in the past about the economics of access, but without all the sexy free speech stuff clouding things up. In particular, I hope all those idjit content producers like Viacom that oppose Net Neutrality they think it will help police content for infringement and give them an advantage over rivals who can’t afford to pay the “fast lane fees.” Because, as Comcast’s little tepid step toward “How to Monetize Monopsony Power and Make the World Your Bee-Yatch” shows, making a deal with the broadband access devil to police your content guarantees that broadband access providers will end up owning you the way Microsoft ended up owning IBM and everyone else who thought that they could leverage another parties control of a bottleneck facility to its own advantage.

Given the amazing track record the IP mafia has for making bad decision in this regard, I’m not exactly holding my breath they will see reason. But I can at least secure myself the bitter pleasure of saying “toldja so” after it’s too late.

More below….

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Lessons of the Google/Moveon/Collins Dust Up: My Other Shoe Drops and It Fits Quite Nicely

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For those wondering about the dust up over Google dropping Ads from Senator Susan Collins (R-ME) because she used Moveon’s trademark in her ads, I reproduce below my post on the Public Knowledge blog. I don’t usually to that kind of “repurposing” of my blog content, but this one seemed reasonably important.

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The 700 MHz Auction Pre-Show: Live from the AT&T/Aloha Bowl!

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The pre-game show for the 700 MHz auction has definitely gone into full swing. Lets ignore for the moment the purely regulatory shenanigans such as Verizon’s war of litigation and regulatory maneuver. Let’s pause for a moment to consider some of the player training and pre-game jockeying for position. Notably, today’s big announcement that AT&T will buy Aloha Partners 700 MHz licenses.

“Whoa!” I hear you cry. “How did Aloha Partners (or anyone else) get 700 MHz licenses? I thought the auction wasn’t until January!” Well, for reasons I will address below, the FCC actually auctioned some of these licenses back in 2002 and 2003. Aloha Partners won a fair number of them dirt cheap (since at the time no one knew if the broadcasters would ever finish the digital transition and get off the spectrum), and then began a steady stream of acquisitions, culminating in the purchase last month of Lin TV’s 700 MHz licenses, giving them a total of 270 licenses overall and healthy coverage in the major markets of the southwest, south, east coast, and portions of the midwest. (You can see and old map of the major coverage areas here.)

And now, in what has become the all too familiar paradigm for the telecom world, AT&T has turned around and swallowed Aloha Partners 700 MHz licenses. What does this mean? What impact for the auction? For other deals? Will this impact the regulatory end game?

My speculations are even wilder-ass than usual, given the utter lack of real data. But if you’re up for a walk through the entrails with me, see below . . . .

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Brief update on White Spaces

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For those following the current White Spaces follies (or, “how Microsoft crashed an entire proceeding by treating spectrum as if it were software”) the FCC announced it will do further testing on white spaces prototypes.

That’s a modest victory for pro-white spaces forces, as the NAB had tried to leverage the failure of the (broken) Microsoft device to force the FCC to shut down the proceeding (or, more realistically, go with stationary devices and say no to mobile devices, with sufficient restrictions on power level and use of adjacent channels to make the white spaces virtually useless). At the same time, however, it ups the stakes pretty severely. Another “blue screen of static” and the NAB will probably get its way.

My sense is that a majority of Commissioners would like to see this happen, if they are convinced the engineering works. That doesn’t just mean a proof of concept. That means a demonstration that the technology today works sufficiently well that the FCC’s Office of Engineering and Technology can say with confidence “if devices follow these rules, they will not interfere with people trying to watch free over-the-air TV.” We know the theory works, but is the technology ready for prime time?

Stay tuned . . . .

The 700 MHz Dramedy Continues

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Ya know, I had real hopes that, barring a Petition for Reconsideration or two, I was pretty much done with the 700 MHz auction. Sure, Verizon filed a lawsuit with the DC Circuit, but at least we could sit back and stop worrying about the FCC stuff. And besides, the lawsuit didn’t really have much of a chance anyway. So, after a grueling 6 months or so, I thought I could finally relax and turn to something new, like kicking the bejeezus out of the cable monopoly.

Hah.

As recent reports indicate, Verizon has apparently pressed the FCC to “clarify” the C Block conditions. I say “apparently” because Verizon has not actually filed a request for any sort of clarification, reconsideration, or declaratory ruling. Indeed, to my considerable annoyance, it took a modest reprimand from the Wireless Bureau and Martin’s staff for Verizon to actually put something in the record vaguely resembling a description of what Verizon’s most senior lobbyists actually discussed with the Chairman and his staff. Verizon, meanwhile, vigorously denies they ever asked for reconsideration (and, separately, that it finds the accusation that it violated the ex parte shocking and deeply offensive).

In any event, it appears the issue is whether or not Verizon (if it won the C Block licenses) could continue its practice of asking manufacturers to strip out or limit features or applications on devices that run on the C Block. Verizon argues that consumers love subsidized handsets and letting the cell phone operator make all the tough decisions (like what applications can run on the device), and it would therefore be cruel to deny the C Block licensee the right to offer such fantastic products and deals — as long as the C Block licensee will hook up any third party device that meets the technical standards.

To Martin’s credit, he reached out to the Public Interest Spectrum Coalition (PISC) and asked our opinion on whether the C Block licensee should be able to sell “crippled” devices as long as it will also connect any third party device to the network. Martin was apparently sufficiently impressed by my wisdom that he then tried to issue a clarification that Harold Feld is right and Verizon is wrong. The Democrats promptly moved to block, because they suspected a trap, since the idea that Martin would side with me over Verizon is apparently laughable (I have no doubt the Democrats mean that in a nice way and that it does not reflect on the quality of my wisdom). Of course, I have no idea what the proposed clarification actually said, since it is illegal to show me the actual predicisional text. But it is not illegal for Martin to say that he agreed with me or for the Dems to say that’s not how they read the proposed clarification. Remember, ambiguity is the essence of comedy.

In any event, as in any good dramedy, further hijinks naturally ensue from this potent combination of distrust and lack of information. Rumors of this “clarification” prompted Verizon’s arch-nemesis, supporter of wholesale access, and potential rival bidder Frontline to challenge Verizon’s efforts to get the rules changed. This triggered a response from Verizon that they hadn’t asked for a rules change, and that furthermore, on reconsideration, the FCC should issue a declaratory ruling that “Frontline is ugly and their VCs dress them funny.” Meanwhile, now with a full posse of PISC buddies, I went back to the FCC to explain that while I am always flattered to have the FCC declare my interpretation of its rules to be the law of the land (and encourage them to do this on a more regular basis), we at PISC think the Order is perfectly clear and that if anyone wants it clarified they should have to formally file a motion and ask.

One might logically ask why, if Verizon wants the Order changed or clarified, it doesn’t just file a motion and ask. That would be a problem for Verizon, however, because it cannot simultaneously file a Recon Petition under 47 USC 405 and a Petition for Review by a federal appellate court under 47 USC 402. There are ways to try to get around this, but this statutory conflict would explain why Verizon has danced around this issue and pretended it is merely a continuation of its previous arguments properly filed in this docket. Assuming, of course, that they actually want a clarification, which they claim they don’t.

So, if Verizon hasn’t put in an explicit request, why does Martin feel a need to act? Does Verizon really have a leg to stand on, or is this just an effort to refight the same battle? And what about the tech companies? Why don’t we want the FCC to proclaim that I am right on my interpretation of the Order? And will the Red Sox finally face the Cubs in a World Series “curse off?”

O.K., I have no clue on the last one. But as for the rest of these questions (and perhaps a bit more), see below….

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The Verizon/NARAL Flap And Lessons for NARAL (and all the rest of you advocacy orgs out there)

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It seems like every time I go away, something fun happens on Net Neutrality. I go on vacation and AT&T accidentally censors Pearl Jam. I go away for Sukkot and Verizon makes a major faux-pas by blocking NARAL’s text messaging campaign.

As one might expect, faster than you can say “crap, it’s a Democratic Congress these days,” Verizon went into immediate damage control. It reversed its decision and issued a statement that this was all a big mistake based on an antiquated policy that Verizon had now fixed. Heck, I even believe Verizon that this was an accident. Unlike Comcast or AT&T, Verizon has no prior history of such censorship (although they apparently did play ball with NSA when it came to spying on American citizens). But I make my usual point that I don’t want my free speech dependent on the good will of megacorps, enforced with non-stop vigilance and the ability to raise a great virtual cry every time wrongdoing occurs. The First Amendment is too damn important to depend on getting a front page story because somebody directly blocks access, even if it is an accident. I want my freedom to communicate protected as a matter of right, not as a matter of grace and political pressure.

No, I shall let my more eloquent colleagues like Susan Crawford and Tim Karr make the usual arguments. Instead, I direct my comments to NARAL and other organizations on both the left and the right with potentially “controversial” messages.

Scan this list of organizations, businesses and individuals that are part of the Savetheinternet.com coalition. Are you on it? I don’t see NARAL, or NOW, or a whole bunch of other orgs (left or right) that should care about this stuff — preferably before they get bit in the butt on it. And it’s not just Savetheinternet.com. It’s also about stopping big media and corporate censorship by opposing further media consolidation. Think NARAL will be able to buy ads in the Wall St. Journal after Rupert Murdoch buys it? Heck, the good folks over at the United Church of Christ can’t even get their church advertisements shown on major networks because they might possibly in two frames hint that they accept gays and therefore (by implication) support gay marriage. So you would think that folks with so much to lose, on both the right and the left, would jump on this campaign.

But sadly, they don’t. It is the unfortunate truth that far too many organizations that should support these campaigns “do not play well with others.” They fret about “expending their political capital.” They distrust working with others where they cannot “Control their name and message.” They refuse to participate in coalitions or causes with certain others including people on the same side, because of accumulated bad blood that began with an incident so long ago no one even remembers what it is about. But most fundamentally, they don’t see how issues of network neutrality and media concentration impact them or their core issues.

Hopefully, the recent Verizon/NARAL flap will serve as a wake up call not merely to NARAL, but Second Amendment Sisters, GLAD, and anyone else with a potentially controversial message. YOU NEED TO CARE ABOUT THIS STUFF! Really. Yes, I know you’re busy on a gajillion other things, you hate half the people listed on Savetheinternet.com list, whatever. If you don’t get your rear ends in gear and start dealing with Network Neutrality and media concentration, then it won’t matter what your actual issue or message is, because no one else will freakin’ hear it, see it, or care about it. Because your ability to get your message out and communicate directly with your membership will depend entirely on hoping you can suck up to/brow beat/bribe a handful of megacorps into letting you communicate with your members and the rest of the world, because you will have no legal right to force them to do so.

If that’s the world you want to live in, then keep doing as your doing. Decide that you “don’t have the resources to get involved,” that this “really isn’t your issue” and you don’t want to “dilute your name or spread yourself too thin.” I’m not sure exactly what you’ll do with all your horded “political capital” when you can’t actually get your message out, but clearly that’s not a concern of yours.

Or you can take two whole minutes and sign up on Savetheinternet.com to join the campaign.

Your choice. But if any members of any of these orgs are reading this, you might want to ask your home offices why they can’t take two minutes to fire up the old web browser and go to Savetheinternet.com to join the campaign.

Stay tuned . . . .

To the Democrats Who Voted for the Cornyn Amendment Condmening “Liberal Activist” Moveon and the “General Betray Us Ad”

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To the Democrats who voted in favor of the Cornyn Amendment to condemn the “Liberal activist organization” Moveon for its “General Betray-Us” Advertisement.

I can only say — SHAME! Shame on you for siding with the conservative talk show bullies! Shame on you for once again perpetuating this twisted double standard in which the merchants of venom and filth scold their opponents for daring to raise their voices in protest and speak truth to power. Where were you when Max Clealand — a man who risked his life in the service of his country, losing limbs for our liberty — faced far worse “personal attacks” on his honor and bravery for daring to question the rush to War? Where was the Senate outrage then? Where were you then? You were cowering before the conservative mob, running like frightened stag before the baying talk radio hounds, while the Republicans you joined with for this shameful vote laughed at your cowardice and timidity. And now, six years later, you have proven yourselves once again to be the same timid deer, ready to run wherever you are driven when the talk radio pit bulls bare their teeth and growl.

I am tired of you. I’m tired of hearing your brave talk of “Change” and “Taking a Stand,” only to see you time and again knuckle under to the same tricks and demagoguery that held you paralyzed in the past. Your helplessness has become a joke of the late night talk shows. Your cravenness has become a byword among your opponents, who have lost whatever fear they may have felt after seeing us bring you into power after 12 long years of minority status. And your pathetic timidity has become a bitter disappointment to those of us that elected you to create change and take a stand.

I am done with you. Neither you, or The Democratic Party general reelection fund, will receive one more dime from me until a sufficient number of you are replaced with men and women willing to stand up for principle. I and the other “liberal activists” the Cornyn Amendment explicitly condemns shall seek out new candidates willing to stand up against the talk show bullies and the Conservative demagogues who seek to brow beat the opposition into silence with mock indignation, while reserving for themselves the right to spew poisonous vitriol on all who disagree. You will have no more “safe” districts or “safe” states. What use have I or other “liberal activists” — who have sought only to see an end to the tragedy that has become our failed involvement in Iraq and to protect ourselves and our fellow Americans from the rapaciousness of a new generation of corporate Robber Barons — for so-called Democrats who quail before the conservative talk show bullies and crawl to do their bidding? We will find new candidates, brave men and women willing to speak truth to power, and with the spine to carry their conviction from the campaign trail to the Capital.

It may be that you can provide some satisfactory answer to your unconscionable vote and redeem yourselves, but I sincerely doubt it. For actually crossing party lines to condemn the Moveon ad, I have nothing but contempt. It is not merely that you are utterly wrong on substance. It is not merely that this latest craven surrender to the Conservative noise machine marks you once again as unfit to lead our nation in the direction it must go. It is the sheer, utter, lemming-like suicidal imbecility with which you seem determined to leap over the proverbial cliff and throw yourselves into the sea. As a matter of pure, cold blooded political calculation, I am simply astounded at your utter disregard for those who have paid with sweat, blood and treasure to put you and the Democratic Party back in the majority. I am appalled at your inability to perceive the misgivings of your “base” that despite your brave talk you would in the end once again disappoint us by prostrating yourselves before the Conservative talk show bullies who — after two decades of unrestrained consolidation and the death of the Fairness Doctrine — dominate our public airwaves with their vitriol and drown out all voices of dissent with your craven assistance. What “vital center” do you think you win by continued reaffirmations of your political cowardice and timidity? What “centrists” do you think you inspire with consistent craven surrender to the Conservative right?

Had you resisted your craven impulse to bow to the Right, sadly grown into unthinking habit from long use, this “controversy” would have been dismissed as a mere sideshow, the vaporings of the Conservative talk show bullies and Republican demagogues, forgotten in the wake of the next OJ bulletin. But no, you have given your imprimatur to their brayings, handed them another victory to reenforce the perception of their power, and deeply offended those on whom you must rely for success. When your fundraisers call, or those from the Democratic Party call, I shall make clear to them precisely what I think of Democrats who quiver to do the bidding of the Cavutos and Limbaughs of the world instead of standing up for the principles on which they were elected.

To the Democrats who stood up to the bullies and voted against the Cornyn Resolution — especially the Democratic Candidates for President Hilary Clinton and Chris Dodd — you give me hope. In 2003, only two Democrats dared to defy the attack dogs of the right and make a stand against the pressure of the Conservative mob. Some Democrats, at least, can learn courage and can stand by their convictions. Whatever your personal feelings about the language of the advertisement (and there is certainly room for disagreement on whether it was useful, appropriate or effective), I am pleased to see that you have learned that trying to appease the talk show bullies is a losing proposition. You recognized that when push comes to shove and you must go on record and take a stand, and proved you are prepared to stand up for what you believe. You have learned to say “No, maybe I didn’t like the ad and thought it’s criticism of Patraeus over the top, but I will not endorse a double standard that lets talk show bullies call us ‘traitors’ and ‘terrorists’ and ‘cowards’ who ‘cut and run,’ but who fake outrage and demand we disassociate ourselves from ‘despicable hate speech’ when others use much milder criticisms.”

If the rest of the Democratic Party can only learn from your example, there is still hope for 2008. Like Dorothy standing up to the Great and Powerful Oz and thus revealing him to be a fraud propped up with a loud voice and special effects machine, your example in standing up to the orchestrated outrage of the Conservative echo chamber can break the power of the talk show bullies over the cowardly lions, tin men, and scarecrows that make up the rest of the party.

To the Democrats who stood silent, thinking that this placed you above the fray and sent a proper nuanced message, a warning. Solomon wrote in Ecclesiastes that “there is a time to speak, and a time to stay silent.” This is not the time for silence. Senator Mitch McConnell put it quite well when he said: “Let’s take sides. General Petraeus or MoveOn.org. Which one are we going to believe? Which one are we going to condemn?” Your silence, however meant, appeases no one and calls your principles into doubt. By refusing to take a stand, you leave yourself open to the accusation that you lacked the nerve to fully commit yourselves. Yes, there are times when it is both the right thing and the brave thing to refuse to engage at all, to follow the wisdom of the old adage that if you wrestle a fool in the mud no one watching will see much difference between the two. But there are also times when one must clearly and unambiguously pick a side.

I close with Senator McConnell’s call to arms. “Let’s take sides. General Petraeus or MoveOn.org. Which one are we going to believe? Which one are we going to condemn?” Yes indeed. That is the question the American people face, and will decide upon in the election of 2008. You Senators who chose Patraeous over Moveon, who claim to hate the War but cringe when the talk show bullies bark, have shown your true character and made your choice. We, the voters who brought the Democrats to power in 2006, who have done the impossible by giving the Democrats an hitherto unimaginable lead in fundraising against their Republican opponents, will not forget when we go to make our choice in November 2008.

Stay tuned . . . .