Tales of the Sausage Factory:
We File Wireless Microphone Complaint: Shure Says Breaking Law Should Be OK If You Sound Good.

, , , , , , , ,

As regular readers will know, among my many wireless fixations are the use of the broadcast white spaces and the 700 MHz auction. So what happens when I get to combine the two together?

Answer: A 50 page complaint and Petition for Rulemaking, another 175 pages of evidence that Shure and other manufacturers have been marketing wireless microphones in violation of FCC rules, then using the victims of this deceptive marketing scam as “human shields” in the white spaces debate, and a possible road map toward solving the potential for massive interference with new public safety and wireless services operating on the returned UHF bands. As a side benefit, it also provides a route to authorization for the hundreds of thousands (if not millions) of illegal wireless microphones, finds a use for that leftover 5 MHZ band in the AWS-2/AWS-3 proceeding (waste not want not), and potentially changes the debate in the white spaces fight by getting the goddamn fact that the overwhelming majority of wireless microphones are (at the moment) used illegally out in the open so people can have a rational discussion about interference protection.

Oh yeah, and it will require the wireless microphone manufacturers to clean up the mess by exchanging the old, unauthorized equipment for new equipment that doesn’t work on Channels 52-69. I love a plan that only punishes the guilty rather than letting the wireless microphone guys reap yet another windfall by requiring the unauthorized users to pay for their own equipment replacement.

And what was Shure’s response to the complaint? According to the Associated Press, Shure did not deny breaking the law. Instead, they said: “today’s uses of wireless microphones provide a valuable and irreplaceable public good, regardless of the licensing scheme.”

Or, in other words, “yeah, we broke the law — but it doesn’t matter because we will use Broadway and churches as human shields if you try to go after us” (insert international gesture of respect performed with raised middle finger at FCC).

You can see the press release here, and get copies of our complaint/Petition here. (Links to the Exhibits are on the press page.) You can see a bit more analysis from yr hmbl obdn’t below….

Continue reading

My Thoughts Exactly:
Shocking News! Rich People Cheat!

, ,

Via Suburban Guerilla Suzie, to whom I was sent by a dog-barking surrogate Atrios, this little newsbite:

This will be a lot of fun, I think:

Hundreds of super-rich American tax cheats have, in effect, turned themselves in to the IRS after a bank computer technician in the tiny European country of Liechtenstein came forward with the names of US citizens who had set up secret accounts there, according to Washington lawyers investigating the scheme.

A good apetizer for the magnum opus essay I’m working on as a sequel to Harold’s recent Gods of the Marketplace story. Filthy-rich tax cheats with secret accounts in Liechtenstein, a brave young Licthensteinian data entry clerk convicted Licthensteinian fraud selling purloined bank records to German & British & American tax investigators, now in hiding with a new secret identity. . . trust me, it’s great stuff. Check it out.

Tales of the Sausage Factory:
FISA Reflections: FISA and The FCC

, ,

Well, the foul FISA Amendments Act is signed. I shall have more refections as time permits. But I did have one thought here. FISA and the FCC.

The Title II of the FISA Amendment Act of 2008, the “Protection for Electronic Communications Service Providers,” provides for protection from any “covered civil law suit.” As John Dean first observed, the bill does not refer to criminal immunity. Personally, however, I think that is a bit of a red herring, although I am curious as to whether the pardon power really runs to corporations and other artificial person that exist solely as a function of law. But lets assume it does. So let us assume that on his last day, Bush pardons anyone and everyone involved in the whole sorry affair. Where does that leave us?

The Federal Communications Commission.

The FCC is not a “court” of the United State as defined by the act. A complaint brought to the FCC under the Customer Premise Network Information (CPNI) rules, or even the broader provisions of Section 202 “just and reasonable practices,” does not fall within the purview of a “covered civil action.” In the event that a pardon is considered to cover possible administrative sanction, I would observe that a Petition for Declaratory Ruling that the conduct disclosed violated the CPNI rules is not a criminal action or civil liability, but would still entitle the Commission under its broad powers pursuant to Section 4(i) and Section 403 to investigate. Indeed, under Section 403, the Commission is free to conduct an investigation into the matter on its own motion — if it so desires. The Commission is not limited by the Article III “cases or controversies” requirement. It can investigate anything pertinent to its regulation of all communications by wire or radio, particularly when related to administration of any provision of the Act.

The upside is that, short of a statute specifically prohibiting the FCC from investigating anything related to the domestic spying program, it is damn hard to take this broad investigative authority away. As noted above, even the absence of any criminal or civil liability cannot divest the FCC of its authority to investigate communications carriers — particularly those regulated as common carriers under Title II. Given that the Chair of the FCC cannot be removed by the President, and I would need to check about the applicability of an executive order to the FCC, nothing short of a direct Act of Congress again could deprive the FCC of its ability to investigate. (I imagine we will need to watch the appropriations bills very carefully to see if some clever person sneaks it in under the radar.)

The downside, of course, is that this lies entirely within the discretion of the agency. Even a filed complaint or Petition for Declaratory ruling cannot compel the agency to action.

So we shall just have to see what happens after the election. If we have an FCC interested in letting the American people know how their government spied on them, what actual benefit accrued, if any, and what the FCC might do under existing law to keep that from happening again in the future (all, of course, consistent with national security, blah, blah), we can at least find out what went on and shame these companies into being more careful the next time around. OTOH, if we have an FCC that believes that “national security” means giving the telcos a free ride if the Administration asks nicely, then we can’t find out jack.

Stay tuned . . . .

Tales of the Sausage Factory:
I Suggest Giving Comcast What It Asks For . . . . Heh, Heh, Heh . . . .

, , , , , , , , ,

As the FCC’s examination into our complaint against Comcast winds down, with what looks like a win for us (although with an opponent like Comcast, I am not going to celebrate a win until after the order is voted), Comcast has increased its efforts to woo McDowell and Tate with a show that “the market” will magically cure all ills by cutting a non-aggression pact with Vonage and a new ex parte filing listing all the wonderful things it has done since the Commission put our complaint out on public notice, which is an obvious sign that no regulatory action is necessary since it is merely coincidence that Comcast (and other broadband providers) have been scrambling with ever more serious urgency as the resolution of the complaint moves closer. Ah Comcast “Change we can believe in until all you stupid regulators go away and we can get back to crushing folks like insects beneath our fiber-coax heel.”

More of interest to us legal (and less credulous) types, Comcast filed a lengthy rebuttal to Marvin Amori’s magnum opus on Commission jursidiction. Marvin’s piece was, of course, a response to the Comcast filing after the Boston Hearing, that asserted the FCC had no authority to sanction Comcast or regulate Comcast’s broadband in the first place. Mind you, Comcast told the a California district court otherwise, and got a stay of the pending class action for blocking bittorrent as a consequence. But the first lesson of law school is that consistency is only a virtue if it serves your client. In any event, this most recent filing (which has not yet shown up online for me to link to) is therefore either the rebuttal to FP’s reply or merely the Nth go round in a “permit but disclose” proceeding.

This is reflected by Comcast’s argument, which largely rehashes previous arguments about the limits of Commission authority and whether Comcast had proper notice it could be subject to a civil complaint and civil sanction. Fair enough. Time now for the FCC to decide and then on to the D.C. Circuit. That’s what process is for, to get the arguments out so we can get a judgment and get on with our lives.

But Comcast does raise one new argument, and an intriguing one at that. And ya know, I think the Commission ought to give it to them. Heh, heh, heh . . .

Why am I chuckling? See below . . . .

Continue reading

My Thoughts Exactly:
Life imitates art: Shark Attack! edition

,

Maybe this article from the Martha’s Vineyard Times Online won’t strike you as funny as it strikes me,

Edgartown prohibits swimming following shark sighting
Published: July 10, 2008 : 5:40 pm

Edgartown beach officials said a large shark identified as a great white was spotted off South Beach in Edgartown today. Edgartown park commissioners acted on the report and closed South Beach to swimming.

But then again, you probably don’t live on Martha’s Vineyard like I do, and you probably haven’t seen Jaws 45,356 times, like I have.

Continue reading

Tales of the Sausage Factory:
An Interesting Tea Leaf on AWS-3/M2Z

, , , , , ,

Well, I keep saying I will do the big posting on AWS-3/M2Z, and keep not getting to it. So I will just drop a short note for the fellow FCC policy junkies who follow this stuff closely. You can find background on the AWS-3/M2Z business here, here, and here.

The FCC extended the filing deadline on the proposal released June 20 to reapportion spectrum between the AWS-2 band and the AWS-3 band (as well as mandatory content filtering). Comments were originally due on a tight deadline (today). This extends things out to a full 30 days for comments and 14 days for reply, so the new dates are July 25 and August 11. That’s less than what the wireless carriers wanted, and it explicitly rejects the request for the FCC to do its own testing. In fact, the whole tenor of the Order provides a rich field for us FCC-ologists to start gazing in tea dregs and rummaging through pigeon entrails.

More below . . .

Continue reading

My Thoughts Exactly:
The words seem oddly familiar. . .

,

Dogbark Master had this “deep thought” up today:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I know I’ve heard that before. It’s right on the tip of my tongue. . .

Tales of the Sausage Factory:
Broadcast Flag Through The Back Door — Yet Another Episode of “Outsourcing Big Brother.”

, , , , , , , ,

The Motion Picture Association of America has asked the FCC to give it a waiver of something called the “selectable output control” rules for cable boxes. As usual, this apparently minor request for a waiver of an obscure FCC regulation of unknown origin, governing a highly-technical and mind numbingly boring set of rules about cable set-top boxes, hides a bold power grab designed to rip off every owner of a Tivo, VCR, or other perfectly legal recording device available to consumers to engage in the legal practice of recording television programs to watch them later (“time shifting”).

For details on this latest effort to circumvent limits on government by outsourcing the process to an industry cartel, aka “outsourcing Big Brother,” see below . . . .

Continue reading

Tales of the Sausage Factory:
A Sad Day for Brave Little Toasters Everywhere.

, ,

As reported by Cory Doctorow on on BoingBoing, author and poet Tom Disch committed suicide on July 4.

Disch achieved fame and notoriety for his fiction writing, particularly science fiction, and as a poet. You can find his Wikkipedia entry here. I gather from the various blog obits from friends and acquaintances that Disch was one of those enormously brilliant people who could be a real pain in the butt to deal with in person. I don’t know, I never met him.

For me, Disch’s name is synonymous with the character he created for his children’s book (and subsequent Disney movie adaptation), the The Brave Little Toaster. If I may make a secret confession, I totally love that story and that movie. Really. It is ridiculous and sappy (and I never particularly liked the sequels), but there was just something about this scrappy little toaster that defied all laws of logic and nature and found his master again against ridiculous odds. Maybe that’s why I went into public advocacy.

So I find it sad that the man who created the scrappy Little Toaster took his own life. A sad day for Brave Little Toasters everywhere.

Sic transit gloria mundae

Stay tuned . . . .