Why Network Neutrality Will Not Die (But It Doesn’t Mean We’ll Win, Either).

Was it only last month when network neutrality was supposedly dead, deceased, passed on, expired, gone to meet its maker, run down the curtain, and joined the bleedin’ choir invisible? Yet here we are, with a network neutrality rule teed up for a vote at the FCC’s December 21 meeting. Even more surprising, it appears that a number of long-time opponents may actually be willing to come to the table on a compromise rule, with AT&T’s Jim Cicconi practically living in the Chairman’s office for the past few weeks presumably negotiating over the details of a proposal. Mind you, if the proposed rule is too much of a compromise, network neutrality supporters will oppose it. And, even if major carriers support it, Republicans at the FCC and in Congress are dead set against it.  But for the moment, network neutrality appears to have once again gone from “totally dead” to “certain to become law.”

Truth is, network neutrality has been declared dead so many times it ought to have its own movie or television franchise. I picture Jim Cicconi as Dr. Evil staring at a garishly dressed Josh Silver as Austin Powers and saying: “But you died in that landslide election, when my Tea Party sharks with laser-beams grafted to their skulls had you trapped in their lair!” Josh flips back his hair and replies: “Network neutrality will never die, baby. It’s too shaggidelic!” Or perhaps I, in my secret identity as Perry the Platypus, will once again foil Scott Cleland as Dr. Heinz Doofenshmirtz as he attempts to destroy the open internet with his Close-Internet-Inator (besides, I think FCC Chair Julius Genachowski and Chief of Staff Eddie Lazarus would look cute dressed as Major Monogram and Carl). Or perhaps a looming Voldemort-eque composite of the cable industry will turn its high power lobbying wand on a Network Neutrality Harry Potter (played by Sascha Meinrath, since Ben Scott is no longer available) and asking “Why do you live?” and a defiant Meinrath answers: “Because I have something to live for!”

But while network neutrality appears almost comically unkillable, that does not mean those pushing for strong network neutrality rules  will actually prevail.  As The Mikado once observed: “it’s an unjust world, and virtue is triumphant only in theatrical performances.” Hence the concern over the actual substance of the rule and the endless last minute wrangling.

Why Network Neutrality keeps coming back from the dead but why supporters still need to pull out the stops to get a strong rule below . . . .

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Sorry AT&T, Title II Would Not Require The FCC To Allow Paid Prioritization.

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

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

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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Smashwords founder Mark Coker talks to Wetmachine about the future of publishing

Smashwords is a service for helping small and self-publishers format ebooks in diverse formats (for example: kindle, epub, PDF, Palm) and distribute them through diverse retail channels (for example Amazon, Apple, BN, Kobo, and Smashwords itself). A few weeks ago I sent Smashwords founder Mark Coker a note asking if I could interview him for Wetmachine & SelfPublishing Review. He said yes; I sent him some questions about the current & future state of book publishing, and he answered. His replies appear below the fold.

I found his answers interesting and direct, and I think you’ll enjoy reading what he had to say.
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Why We Care About Broadband Policy, Not Competititon.

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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SXSW Dreaming

The deadline for submitting panel proposals for South by Southwest Interactive kind of snuck up on me. I learned just before midnight last Friday that the deadline was midnight on Sunday. It turned out that I had a bunch of stuff to do on Saturday and Sunday, so only spent a few hours Sat & Sun evening working on my panel proposal. The hard limit for the proposal was 1,500 characters. My first draft was twice as long. So as the clock ticked towards midnight Sunday I took out my trusty machete and started hacking.

I’m not really happy with the final proposal I submitted, but I thought the 3,000 character draft wasn’t that bad. In any event, it’s a panel that I would like to be on, or, failing that, attend.

So anyway, below you’ll find longer draft, the “before machete” version. Soon enough, I hope, you’ll see my “after machete” version on the SXSW website & I’ll bug yzall for your votes. Thanks.

Self-Publishing Novelists 2011: A Report from the Trenches.

We’ve been hearing for a while that new technologies for authoring, designing, printing, publishing, marketing, distributing and consuming books will disrupt the traditional book publishing business model and empower the everyman self-publisher.
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Ass over teakettle and a farewell to free ebooks

About three weeks ago I had freak accident on my bicycle. My chain froze as I was pedalling up a hill. I went ass over teakettle and performed a lovely three-point faceplant in the weeds (2 hands + 1 face = 3 ), spraining eight fingers & two thumbs and bloodying up my left cheek, which led to two visits to the emergency room and one to my doctor who told me that much of the symptoms in my hand were coming from my neck, where CT scans revealed “moderate to severe arthritis.”

As I picked myself up off the ground, in shock at the gross betrayal of me by my insubordinate bicycle and angry at gravity, and with my hands hurting ferociously and tingling in equal measure, and later, after calling my daughter, who was off in our family’s only working car, to ask her to come drive me to the hospital, I realized that I was not Cory Doctorow. Even after my daughter had picked up my wife who took me to the emergency room at Martha’s Vineyard hospital & I had heavenly dilaudid pumping into my vein I still was not Cory.

I’m mostly all better now. I even rode my bike a lot yesterday, despite the heat, right down to the Tisbury Street Fair, where I served strawberry shortcake with the guys in the Firefighters Association. It’s been three weeks since my bike mishap & I’m still not Cory. Consequently, I’ve stopped giving my books away for free.
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