Tales of the Sausage Factory:
Wheeler Blog Post Shifts Phone Transition Into Second Gear.

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First a belated welcome Chairman Wheeler. I must warn you that, after Chairwoman Clyburn’s short but extremely productive tenure, you have a very tough act to follow. Mind you, I give kudos for your shrewd opening move of poaching my (now former) boss Gigi B. Sohn for your front office.

 

I will add I am delighted to see another wonky telecom blogger on the scene. Which awkward segue brings me to  Chairman Tom Wheeler’s recent blog post announcing his intent to get an Order out on the transition of the phone system by January.

 

We could characterize the time since AT&T filed their application to “begin a dialog” last year as chugging along in first gear, and this blog post definitely kicks things up into second gear. I outline what I think this means, and where I think we’re going in the next few months, below . . . .

 

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Tales of the Sausage Factory:
Intellectual Property, Jewish Ethics, and Aaron Swartz

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Last night, I participated in a panel discussion sponsored by the Jewish Study Center and the National Museum of Jewish Military History. Inspired by Aaron Swartz’s death, the panel was to discuss intellectual property in Jewish Law and Jewish Ethics.

 

I’m copying my speech below. I have elaborated a bit in this version for those not familiar with Jewish traditional sources. In particular, I need to emphasize that Jewish tradition does not regard “the sin of Sodom” as relating to sexual immorality. The “sin of Sodom” and therefore “the way of Sodom” disparaged by the Rabbis, refers to excessive love of wealth that causes cruelty and oppression (see this summary piece here). As Netaneal and Nimmer note in this article, the prohibition against behavior considered “the way of Sodom” acts to limit excessive copyright enforcement even for those who regard copyright as creating a form of property right in Jewish law. In my remarks reproduced below, I focused on the moral and ethical dimension of the prohibition on “the way of Sodom” rather than any practical application in Jewish copyright law.

 

Text below . . . .

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Tales of the Sausage Factory:
AT&T/CIA Deal Violates Telemarketing Rules — So I’d Like to Opt Out.

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It’s like getting Al Capone for tax evasion.

 

The CIA and AT&T figured out how to get around legal restrictions on giving the CIA access to domestic phone call information, but in doing so they violated a Federal Communications Commission (FCC) rule that protects you against telemarketing.

 

According to this story in the New York Times, the CIA paid AT&T to provide them with information on calls passing through its international telephone system. Because federal law prevents the CIA from spying inside the United States, the CIA could not legally get info on calls terminating in the U.S. because they are not eligible for any of the mammoth sized loopholes Congress has already punched in the fabric of our civil liberties. But, of course, calls from suspected foreign terrorists (aka “anyone outside the United States”) that terminate in the United States are the most interesting to the CIA.

 

So what’s a poor spy agency and a patriotic mega-Corp who understand that sometimes you have to break few privacy eggs to make a freedom omelet gonna do? According to the article, when a call originated or terminated in the United States, AT&T would “mask” the identity by revealing only some of the digits of the phone number and not the identity. The CIA could then refer this information to the FBI, which can use all those mammoth sized loopholes Congress punched in our civil liberties to get a court order and require AT&T to provide the rest of the phone number and all other relevant identifying information. Then the FBI can kick that back that information to the CIA.

 

Unfortunately for AT&T, this pretty clearly violates the Customer Proprietary Network Information rule (CPNI).  Fortunately for AT&T, it can solve this problem fairly easily by notifying customers of the possibility the CIA might ask for their phone number if they get a call from outside the country and asking customers who don’t want this exciting new service to opt out. Please start with Senator Feinstien and ask her if she wants to opt out of having her international calls monitored by the CIA. Given her legislative track record on this, I’m sure she won’t mind.

 

Some analysis of why this violates the CPNI rules below . . .

 

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My Thoughts Exactly:
John E. Sundman 1926 — 2013

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[Editor’s Note: Because I’ve published books under three middle names and created a variety of  fictional ”John [$variable] Sundman”  personae, I find myself in the unusual position of stating that the obituary that follows is for a quite real person, my father, who died last Monday. The newspaper obituary is here. A longer version follows below the fold, with a few comments by me at the end of it.  You’ll note that my father’s father was also named John Sundman. I suggest we blame him for any confusion — jrs.]

John E. Sundman

Dad in green polo shirt at LBI.

Dad in green polo shirt at LBI.

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Tales of the Sausage Factory:
Will The Fed Shutdown Screw Up This Season’s Xmas Tech Toys?

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No one outside the small world of telecom policy cared much that the Federal Shutdown would close the Federal Communication Commission (FCC). Other than the hope that closing the FCC would open the door for Joss Whedon to slip in some full frontal nudity and cussing on the next episode of Agents of S.H.E.I.L.D., most people don’t think of the FCC as having much impact on their lives.

 

It turns out, however, that the shut down of the FCC may very well delay the sale of new tech toys scheduled for release this Christmas season. And I don’t just mean the obviously FCC things like new cellphones. Every toy with a computer chip, every TV set, every microwave oven, and just about everything else that produces “radio frequency emissions” needs an FCC certification before it can get shipped to stores for sale.

 

Why? Because things that draw a lot of electric current that oscillates rapidly, like a computer chip, produces radio interference. If you have something that shoots short bursts of high powered radio waves, like your microwave oven (aka “radarrange oven” for you spectrum trivia buffs), you want to make sure the device won’t ‘leak’ into neighboring spectrum and cause interference with things like cordless phones. Also, if your cell phone or wifi chip gets the power jacked up too high, it can microwave your ear off or something.

 

So to keep your microwave from interfering with your cellphone, and to keep your cellphone from microwaving your face, federal law requires the FCC to certify all devices that produce radio waves (either intentionally for communication or just incident to use). Most of the actual testing is done by outside laboratories, and the process as a whole is fairly well streamlined. But with no one at the FCC to review the lab reports and process the paper work, the backlog is starting to mount and all the tech toys for this year’s Christmas season are stuck in Santa’s workshop, aka storehouses Singapore, waiting for certification so they can get to U.S. stores in time.

 

The FCC on average processes a little over 1000 applications for certification a month. They process them in the order they arrive. But not only is no one at home right now processing the ones that were already filed, you can’t file new ones. If you are a manufacturer, you now have absolutely no idea if your product will be on shelves on Black Friday. Worse, your competitor’s product could be there a week or two weeks ahead of yours, getting all the reviews and becoming The Hot Tech Toy of The Season while your product languishes on loading docks.

 

And it’s even worse for us Jewish people. Chanukah hits at Thanksgiving this year. Thousands of disappointed little Jewish boys and girls will be stuck with all the Uncool Last Year’s Models, while all their non-Jewish friends can still get the latest models on the 24th of December. Our last Thanksgivingukkah for the next millennium, ruined by the federal shutdown!

 

Will this be the Shutdown That Ruins Christmas? Or will the spirit of peace on Earth and goodwill to all men come back to Washington, and get those hardworking, lovable little federal elves back to the FCC branch office at Santa’s workshop in time?

 

Stay tuned . . . .

Tales of the Sausage Factory:
Why Does The Internet Innovation Association Hate The Rural Call Completion Order, Privacy, and Next Generation 9-1-1?

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The Internet Innovation Alliance (IIA) became the latest trade association demanding that the Federal Communications Commission (FCC) and the states stop working to solve the Rural Call Completion problem. IIA also called for state and federal agencies to stop working on Next Generation 9-1-1 issues, apparently deciding the recent report by CalNena about the declining reliability of mobile 9-1-1 location information was nothing to worry about.  The new report preemptively called for an end to any effort to deal with the growing problem of caller i.d. spoofing and related vulnerabilities in voice-over-IP (VOIP) services. Finally, IIA demanded we eliminate the “legacy rules” that limit the ability of the government or companies to read your call records. You can read the report here..

 

Granted, the report didn’t say that explicitly. Instead, the IIA repeated what has become the standard industry refrain about how the key to transitioning our phone system from traditional technology to Internet protocol (IP) and wireless is to totally eliminate all federal or state authority over the new phone services. But it amounts to the same thing. A demand that we end the FCC’s authority under “legacy phone regulations” that allow it to address Rural Call Completion translates rather directly into consigning Rural America to telephone purgatory — especially when you give no indication of what should replace it.

 

The IIA Report is only the latest in what appears to be a never-ending series of white papers, opinion pieces and typical Washington blather on how the bestest thing we can do to transition the phone system is get rid of “legacy regulation.” Because although the market is apparently already so totally going there that we don’t need to worry about the 100 Million people and millions of small business that rely on copper (the one third of the market that still has a traditional copper line), pernicious legacy regulation is sadly holding things back so much we must eliminate it right away. Try not to think about this contradiction too hard.

 

If the IIA talking points sound familiar, it’s because they are exactly the same as those used by Verizon to explain why Voice Link was just the medicine Fire Island needed to recover from Sandy.  If we want the PSTN Transition to get the same reaction that Fire Island residents gave Voice Link, by all means let us continue down this path. If we would prefer to avoid a crash and burn that makes the opening days of the Affordable Care Act look like smooth sailing, I highly recommend industry groups like IIA stop trying to leverage this for regulatory arbitrage and start coming up with some real proposals on how to upgrade our policies while we upgrade our phone system.

 

More below . . . .

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Tales of the Sausage Factory:
A Wide Range of Possible Outcomes In Net Neutrality Case.

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The Tea Party/Libertarian/Generally Anti-Net Neutrality Crowd were dancing in the streets after the network neutrality oral argument and declaring total victory! This seems not only premature, but short-sighted. Until the oral argument, the anti-net neutrality crowd had predicted that the court would utterly reject the FCC’s efforts to extend its authority to broadband access on either statutory or First Amendment grounds. But, as I noted previously, the entire panel seemed comfortable with Section 706 providing some level of authority over broadband access. Also, no one seemed terribly interested in the First Amendment argument except Judge Silberman. So – given the usual caveats that one can never really know how things will come out after oral argument – it seems the FCC will come out of this with some authority after all.

 

OTOH, it is certainly fair to say that two of the three judges on the panel indicated the “Common Carrier Prohibition” (aka, the thing Tatel made up in the Data Roaming Case) applied to at least the “no discrimination” rule and possibly the “no blocking rule.” As the two together constitute the heart of network neutrality protections, getting those struck down would certainly constitute a big win for anti-net neutrality folks. It would also create a fine muddle of confusion around the scope of the FCC’s overall authority.

 

There are, however, a range of possible options and outcomes that could still happen, ranging from the unlikely extreme of total affirmance for the FCC (if Rogers persuades one of her colleagues) to total reversal on some other grounds (if Silberman persuades one of his colleagues on First Amendment or Administrative Procedure Act (APA) grounds). I explore these (and what they might mean for the long term) below . . . .

 

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Tales of the Sausage Factory:
When Neocons Became NeoConfucians — Jeff Eisenach’s Conversations With Imaginary Harold Feld.

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In an article called “Why Verizon and AT&T Are More Innovative Than ‘The Left’ Thinks,” Economist Jeff Eisenach makes some observations on his ascendancy to head the American Enterprise Institute (AEI) new Center For Internet, Communications and Technology Policy. Among these, Jeff says that I would attribute Comcast’s effort to block BitTorrent back in ’08 as motivated by a desire to leverage their broadband market power to protect video. “That’s the story Harold Feld would apply to Comcast and BitTorrent. I think it’s far-fetched to believe that Comcast thought BitTorrent was a competitive threat.”

 

Except, of course, I said exactly the opposite in this blog post back in 2008 when Comcast filed its full disclosure document with the FCC. What I actually said was: “it appears to me that Comcast did not block P2P for anticompetitive reasons.”

 

This did not, of course, make Comcast’s conduct acceptable. As I went on to explain:

“Rather than invest in upgrading its network, Comcast opted for the cheapest solution from its perspective without waiting for significant congestion to occur. It used the Sandvine equipment to block (“delay”) P2P transfers and (according to the Florida AG) targeted the top 1000 users per month, no matter what capacity these users actually consumed. This provided an effective means (from Comcast’s perspective) for managing potential congestion, even if it sucked rocks from a consumer perspective.”

 

 

 

While I like Jeff, this does not look like the sort of rigorous research one would hope for from a scholar of Jeff’s caliber and AEI generally – if they want to be taken seriously.

 

 

This brings me to my broader point. While I’m flattered that Jeff Eisenach regards me as the face of the ‘Left,’ and I enjoy the opportunity to tweak him over this, it highlights a broader problem among neo-conservative economists (or, as we might generalize, the ‘Right’). They have stopped listening to people who disagree with them. As a result, they keep saying the same thing over and over again – largely to each other and their Republican groupies.

 

I explore this a bit below . . . .

 

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