Tales of the Sausage Factory

An insider’s view of the media hegemony

McDowell: “I Am Not A Pawn; Solve Your Own Damn Merger!”

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In a very special Christmas episode of the Telecom worlds favorite Telenovella, Death Star Reborn: The AT&T/BellSouth Merger Commissioner McDowell gives his fellow FCC Commissioners a lesson on ethics, the power of the Christmas spirit to facilitate good will towards all men, faith in negotiations in multibillion dollar mergers, and why it REALLY PISSES HIM OFF when people try to use him as “a pawn.”

You can read McDowell’s written statement (and supporting documentation) here, and watch the archive of the video of McDowell’s press conference here. You can see the statement from my employer, Media Access Project, here.

But for my personal analysis, see below . . .

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How The Conservative/Big Business Alliance Bankrupted Air America

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Few things raised joyfull cackles among Republicans in the waning days of 2006. Many, however regarded the bankruptcy of Air America as a bright spot in an otherwise dismal fall. Talk radio, it appeared, remained part of the conservative “heartland” where such liberal voices as Al Franken meet a resounding silence.

However, as reported by the New York Times, the story may have a lot more to it then a tale of silly liberals who can’t run a business and have nothing interesting to say. It appears that 90 major national advertisers engaged in a boycott of Air America programming, to the extent that they wanted their advertising stripped out of syndicated material from other sources (here, ABC Radio Network). The interesting question, of course, is why would supposedly dissinterested companies with no motivation to interefere with domestic politics want to drive Air America out of business?

Hahahahaha…..I love it when I ask silly rhetorical questions like that. For a further specualtion on what apparently went on and why I think the new, Democratic Congress might want to do a little investigatin’ into the Case of Secret Boycott, see below….

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Boston City Council “Wicked OTAHD-ed”

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According to this article, the City of Boston is considering banning or otherwise regulating the placement of DBS receiver dishes. The article reports that in a number of places these have become real eye sores, especially where a tenant moves out and just leaves the dish. Also, DBS comapnies are increasingly puting dishes in windows rather than all the way on roofs, and are generally not that concerned with keeping the neighborhood looking pretty.

Nevertheless, after the trouncing the FCC gave Massport last month over OTARD, this is pretty silly. Or, as those of us from Boston might say “wicked OTAHDed.”

Now there are ways the City can try to deal with the esthetic problems. For example, it could mandate that landlords permit use of rooftops for DBS providers (one big problem is often that landlords sign exclusive deals with incumbent cable operators, so only tennants with a southern exposure window can subscribe). Or Boston might require that any tenant that terminates DBS service remove the dish or who moves must remove the receiver dish. The city could probably require that if a DBS or other provider comes to install a dish and finds a “dead dish” connected to the residence, the DBS provider must remove it (I’m a little leary of this one because it imposes additional costs on the DBS provider and therefore may be preempted by federal law).

These are just ideas off the top of my head, so they may not be plausible. If the City of Boston wants some help, I recommend the Boston University Law School Legislative Drafting Clinic (of which I am an alum). But I hope they resist the urge to just pass something stupid that a federal judge will smack down in five minutes. That never helps anyone, and is especially irritating when taking a bit of time and effort to get it right can save everyone some grief down the road.

Stay tuned . . . .

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

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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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Latest AT&T/BS Merger Twist, and Why Bill Kennard Case is Different from Robert McDowell’s

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In the latest chapter of the FCC’s most gripping “telecomnovella” Death Star Reborn: The AT&T/BellSouth Merger, FCC Chairman Kevin Martin has set in motion the process to get 3rd Republican Commissioner Robert McDowell “unrecused”. The FCC has been deadlocked 2-2 because Commissioner McDowell used to represent CompTel, one of the groups opposing the merger, creating a conflict of interest. (You can see my previous coverage explaining all this here.)

McDowell, while not champing at the bit to be unrecused, has announced he’s ready to serve if the FCC’s General Counsel tells him he has to vote to break the deadlock. So it becomes possible to get this done before the new Congress takes over. Although why this should be such a big deal is beyond me, since it’s not like Congress can directly interfere with FCC merger review, and the indirect threats for payback are already on the table.

Martin, conscious of the controversial nature of the move, wrote a letter to the Chairs and ranking members of the Senate and House Commerce Committees explaining the need for such extraordinary action. In doing so, Martin observed that the FCC General Counsel had previously authorized former FCC Chairman William E. Kennard to break a 2-2 deadlock despite Kennard’s previous recusal.

Now some months back, when folks first started wondering about the “McDowell Option,” I opined that while the FCC General Counsel could force McDowell to vote, such a move would be “extraordinary” and “To the best of my knowledge, it has never happened.” So what’s all this about Kennard then?

Art Brodsky does an excellent job explaining why the Kennard situation was radically different. But, my honor being involved and all, I decided to dig a bit deeper. As explained below, the facts on the Kennard case were so bizzare and different (starting with the fact that Kennard had not been legally required to recuse himself in the first place but had done so, in his own words “out of an abundance of caution”), that I still think my original statement stands and that, if the FCC unrecuses McDowell, and requires him to vote, it’s really breaking new ground.

More detail than you could possibly want (including a timeline and relevant quotes from Kennard’s public statement in 2000 on unrecusing himself) below….

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Company Challanges Cell Phone Jammer Ban on Public Safety Grounds

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CellAntenna, a company that sells wireless equipment, has decided to challenge the FCC’s ban on cell phone jammers. As some of you may recall, about a year and a half ago the FCC’s Enforcement Bureau issued a public notice that 47 U.S.C. 333 makes it illegal for people to market or use cell phone jammers in this country. (By which I mean active intentional jamming, as the jury is still out on the passive cellphone jamming nano-paint.)

According to the article, CellAntenna has some theory that Section 333 and the FCC’s general authority under the Communications Act are trumped by the Homeland Security Act of 2002. Since cell phones are used by terrorists to trigger bombs, they appear to argue in the article, the public security mandate outweighs Sec. 333 and the FCC’s determination on its general authority over the use of radio spectrum to prohibit cell phone jammers.

I confess that, based solely on the reading from the article, I’m highly skeptical. Why?
See below . . .

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Markey to Take Telecom Subcommittee

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Rep. Ed Markey (D-MA) has confirmed he will take the Telecom Subcommittee rather than seek chairmanship of the Resources Committee.

I can’t think of better news to close out 2006. Ed Markey displays that rare, brilliant combination of staying true to his principles at all times while still working well in coalition and with his counterparts accross the aisle. On just about every issue I can think of: net neutrality, media ownership, privacy, fair use, consumer protection, digital inclusion, Ed Markey has been a champion and leader.

Whoooooo Hoooooooooo!!!!!!!!

Stay tuned!

Rethinking the Paradigm: From “Theft of Wi-Fi” to Public Nuisance or “My Noisy Neighbor, Mr. Lynkisis”

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This recent piece on mobile phones that use VOIP through open access points has revived the debate on whether your use of an open access point constitutes “theft” of wifi or “tresspass” into my neighbor’s network.

I’d like to suggest that we flip this and ask a different question: is my noisy neighbor Mr. Lynksis, who blasts his access point into my home thus causing interference and potentially screwing up my own network settings, a public nuisance? And if so, what should I do about Mr. Lynksis, the noisy neighbor that I may not even be able to locate with certainty?

As I argue below, I think we should establish by law that any open access point detectable by standard hardware and software is available for public use (assuming I have a legal right to be in the physical location I’m in when I detect the network). Such a law will poduce positive social benefits, whereas a presumption that use of an open access point is “stealing wifi” produces social costs.

My analysis below . . . .

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A little Parable on Orphan Works Reform

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As Congress winds down, it faces the usual barrage of last minute bills — including requests from the usual suspects in the IP Mafia to expand yet again the value of their copyright holdings (you can read bout the latest push in the lame duck session at Public Knowledge or the new public interest/industry coalition website Digital Freedom). But one piece of legislation deserves to pass, the Orphan Works Act of 2006. This legislation seeks to address the problem of works where one cannot determine who holds the rights.

How does this happen? In 1976, we moved from a regime where we required someone to register a work with the Copyright Office to get protection to one where where everything rendered in fixed form is protected. So if you fnd a work, you must assume it is still under copyright. Even if you can find a record of the rights holder at the copyright office or elsewhere, you may no longer be able to find the current holder of the right because that person has died or moved on without a forwarding address. And since copyright has been continuously extended, the work remains protected and therefore unusable.

So after much prodding, the Copyright Office recomended to Congress to pass a bill that allows someone to do a due dilligence search for the rights holder and set up an escrow account to put some of the profits from republishing the work if the rights holder shows up. This bill is resisted by some trade groups. You can read a good statement about the bill by Public Knowledge’s Gigi Sohn here.

In any event, the subject came up on a local science fiction list I’m on. A fellow by the name of Keith Lynch wrote an excellent little piece illustrating the value of the Orphan Works Act, which I reprint below with permission.

Stay tuned . . .

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NAB Turkey of A Report

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As reported at Consumers Union Hearusnow.org blog The National Association of Broadcasters has done its best to show that owning broadcast stations loses money. Unsurprisingly, they recommend relaxing local ownership rules to allow owners to chase the happy, mythical synergy rainbow that has proven such a winner for Clear Channel, Tribune, Viacom and growing list of companies that absorbed profitable businesses and turned them into failing operations ladden with debt.

We shall leave aside the absurdity of the NAB’s arguments for the moment to get to something even sillier, the absurdity of the NAB’s math. Not since fictional Fundamentalists supposedly redefined Pi as 3 has ideology so distorted the basic precepts of mathematics. Worse, these are not accidents or “fudging.” I count no fewer than two major errors in methodology or presentation per page as well as many major methodological errors that impact the paper overall.

How bad is this paper? It is so bad that you would expect it to appear in the “April Fools” edition of Econometrica. It is so bad that I would expect its author, Theresa J Ottina, to be banned for life from meetings of the American Economic Association. It is so bad that every professor of economics and statistical analysis should download it and give it to their class as a final exam question to see if the class can spot all the errors as a kind of economics “Where’s Waldo” of mistakes, gaffes, and deceits. It is such a botched attempt at a lie by statistical analysis that I have half a mind to file a complaint with the FCC requesting they sanction NAB and Ms. Ottina for violating the FCC’s requirement that submissions reflect an honest effort to provide true information (a certification NAB made in its filing).

What makes it so bad? And why does the NAB submit such a piece of obvious crap?

See below . . . .

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