Tales of the Sausage Factory:
It's Nice When the FCC Listens Part II — The Cyren Call Investigation Is Out.

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When it rains, it positively pours. The FCC just released its Inspector General Report on whether Cyren Call screwed up the D Block. As readers may recall, I and my friends from the Public Interest Spectrum Coalition (PISC) sent a letter to the FCC as soon as the auction ended, asking the FCC to investigate the allegations over whether Cyren Call scared away D Block bidders. To his credit, Martin referred our letter to the FCC’s inspector general. The IG did a quick and thorough job, which you can read here. I shall add that it always gives one pause to find oneself as a subject heading in an IG report.

Generally, I’m satisfied with the report, which confirms my own suppositions after the anticollusion rules lifted and Cyren Call started yapping. Critically:

1) The meetings took place;

2) They were understood by all participants to be business negotiations, not “take it or leave it” demands;

3) The lease payment itself was not a deal breaker, but the potential bidders interviewed said that so many questions about potential financial liability and business model remained — aggravated in part by the uncertain role of Cyren Call — that they opted to stay away (or, as the IG concludes “this was just one drop in many different buckets”);

4) No FCC rules were broken and no one acted in bad faith, therefore there is no need for a referral for any criminal investigation.

Personal reflections below . . . .

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Tales of the Sausage Factory:
It's Always Nice When The FCC Listens

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A few months ago, fellow Wetmachiner Greg Rose and I wrote a wrote a white paper on how to improve the FCC’s processes, make FCC rulemakings and proceedings more accessible to the public, and generally increase the legitimacy and reliability of FCC decision making. As one relatively easy change, we suggested the FCC post the agenda for open meetings far enough in advance that people can come in and make their last pitches to the agency before “Sunshine” (the period when communications stop under the “Government In the Sunshine Act”) kick in. As we explained, providing the agenda at the last second often advantages insiders who hear when an item is likely to go on the agenda, who therefore rush in while those who don’t know the item is going on Sunshine will lose their last chance to rebut arguments or press their case.

So it was pleasant to see Chairman Martin announce that from now on he will publish the likely agenda 3 weeks in advance. That should be a big help to everyone — including the other Commissioners, who will not suddenly find themselves with a week to digest an agenda of a dozen items.

Yes, it is a relatively minor change, but it is important in two ways. First, practical details really do matter. That sometimes gets lost in the fight over specific substantive issues. Second, it demonstrates a willingness by Martin to listen to criticism and take action — at least on the low hanging fruit. Such things deserve notice and suitable (although not overly elaborate) praise. Remember, public policy is made by human beings, and you get what you reward.

Stay tuned . . . .

Tales of the Sausage Factory:
American Radio Relay League v. FCC, Why A Good Case Will Bring Confusion And Bad Results

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I should be overjoyed with the D.C. Circuit’s latest case: American Radio Relay League v. FCC. First, it affirms the right of the Commission to balance between unlicensed Part 15 users and licensed users, even where operation of Part 15 certified devices/services will cause occasional interference to traditional Sec. 301 licensees. Second, it requires the FCC to publish staff reports on which it relies in their entirety, rather than merely including in the record the parts with which it agrees. Third, it requires the FCC to address proposals by commenters with something more substantive than “well, we’ve always done it this way, so we see no need to change.”

All good news, yes? As a legal matter, absolutely. But as a practical matter, I expect it to slow down movement on the FCC’s white spaces proceeding. Why? Because it was a reversal and a reversal almost always causes the good folks in the Office of Engineering and Technology to go into paralysis for a few months while they try to figure out what the new legal standard is now. That the court actually affirmed the critical part on respecting the FCC’s balance between Part 15 and traditionally licensed services is likely to get lost in the noise — especially as we can expect NAB and other white spaces opponents to dwell on the reversal aspect and ignore what the court actually said. And, in the short term, OET now has to figure out how to issue a report on the WSD testing that conforms to the D.C. Circuit’s standard of disclosure. While I, lawyer and advocate that I am, consider this simply an exercise in “tell the truth and shame the devil,” we can expect that opponents will press their own reading of the case and that OET (and FCC’s Office of General Counsel) will now have the difficult and potentially time consuming task of deciding on the proper interpretation.

So a good case in fact, but more delays while the agency digests its implications.

More below . . . .

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Inventing the Future:
Everyone in the Pool

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The US Senate just passed a bill to outlaw discrimination in employment or insurance based on genetic testing. No one voted against it. It is expected to pass the house and be signed by President Bush.

No one thinks it’s ok to base insurance on genetic information?

Then why the hell do we allow insurers to charge so much more based on the absence of a Y chromosome? (I own a day care that is unusual in providing insurance for our staff. They are mostly women, and the extra costs are staggering.)

I had thought that insurance was supposed to be about pooled risk. Actuarial studies were supposed to be used to figure out how much total risk the insurer faced, so that they could set overall rates to be solvent and actually provide their service when needed. Instead, insurers seem today to default on payments. Moreover, they seem to use actuarial studies (and past-payments to individuals) to manage profit from micro-pools or individual accounts. Instead of being about pooled risk, today’s insurance is more like an individual savings plan.

My Thoughts Exactly:
NAFTA, New Orleans and pageants of fake democracy

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The intrepid pro fair-use and anti-hate-speech activist known as Spocko has a link up to a bit by activist journalist Greg Palast about the “Summit for Security and Prosperity” (“SSP”) of the big cheeses of Mexico, the USA and Canada which recently happened in New Orleans, of all places. Whatever its stated purposes, Palast says, SSP’s real goal is the blending together of Canada, the USA and Mexico for the benefits of the non-national power/money elites under the fig leaf justification of NAFTA. Among many of Palast’s interesting point is that under new rules, Chinese products can come into the USA with all the rights and privileges of “Made in Mexico” products.

He also makes the point that the super wealthy are (perhaps ever have been?) post-national–it doesn’t make sense to think of them as “American” or “Mexican” or “Canadian” or “Saudi” or “Russian” or whatever. How many members of the nominally American upper crust, for example, do you think are serving in the military in Iraq and Afghanistan? Right.

Yet they realize that the trappings of nationalism are important to “the people”, even if “the people” are willing to let go of democracy itself.

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Inventing the Future:
Inventing the Present

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Here is some new-media content about Information Week’s Mitch Wagner and Gartner’s Steve Prentice vs SL’s CFO and even Prokofy Neva. It is mostly about Second Life’s power and problems and how that relates to others. Croquet’s Qwaq Forums comes up a lot.

You can probably get out of this whatever you’re predisposed to. (I took away that Geoffrey Moore is right.)

Do follow the link from there to the video. It’s long and not densely packed, but it is a good tour of the non-technical state of virtual worlds — i.e., the things that matter to most of the world. Ten years from now, this is going to be how archaeologists remember today.

Tales of the Sausage Factory:
YAMA (“Yet Another 'Mission Accomplished'”) On Wireless Carterfone.

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“Mission Accomplished” has become a useful catch phrase denoting a declaration of victory so premature as to be ironic, comical, and/or tragic. Sadly, Kevin Martin’s decision to circulate an Order denying the Skype Petition is the latest YAMA (for “yet another ‘Mission Accomplished’”). To refresh folk’s memories, in the Skype Petition, Skype asked the FCC to enforce the Broadband Policy Statement against wireless broadband networks: specifically, the part that says that consumers have the right to attach any device to the network that will not harm the network, and run any application of their choosing.

While not official, Martin has stated that he has circulated a draft Order dismissing the Petition, although Martin indicated at last week’s House 700 MHz hearing that he would dismiss the Petition “without prejudice” (meaning “not now, but try again later if things don’t improve”). Indeed, although none of the coverage of the 700 MHz hearing focused much on this, Martin’s statements and answers to questions indicate that he thinks (a) the C Block open device condition was the right thing to do, and (b) the FCC shouldn’t do anything else on “wireless Carterfone” until we see how the C Block open device condition works out.

While disappointing, this decision is hardly surprising. And, as usual, it is weirdly consistent with Kevin Martin’s First Church of the Market, Reformed ideology and a dash of realpolitik (waste not, want not after all, and if you can make what you think is the right decision serve your political ends, so much the better). Lamentably, Martin clearly has the votes from his fellow Republican Commissioners — although Tate appeared to hedge a bit. Nor do I expect there is much for Copps and Adelstein to do here, other then issue a strong dissent and make sure the damage (in the form of bad precedent) is limited. Indeed, there is a certain appeal to taking a dismissal without prejudice and living to fight another day rather than getting into a fight that may end up with stronger language a future Commission would need to overcome.

Some more analysis below . . . .

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My Thoughts Exactly:
The Slashdot Manifesto argument and teh future of teh writer on Internets, or, I CAN HAZ UR MONEY?

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Steven Poole wrote a blog entry about how the hell us poor writers are supposed to earn a living in this newfangled “information wants to be free” age, characterized by what Poole calls the “Slashdot argument”:

[the Slashdot argument] says that books, music, films, software and so on ought to be freely distributed to anyone who wants them, simply because they can be freely distributed. What is the writer or musician to do, though, if she can’t earn money from her art? Simple, says the Slashdotter: earn your money playing live (if you’re one of those musicians who plays live),4 or selling T-shirts or merchandise, or providing some other kind of “value-added” service.

You may recognize this logic as a variant, or corollary, if you will of the first line of the Toddler’s Manifesto: “if I want it, it’s mine.”

After the jump, a link to a funny cartoon!

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