Tales of the Sausage Factory:
Cable Industry Flips Off FCC, Fines To Follow? Expect Other Industries to Tell FCC To [Fleeting Expletive] Off Too.

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I clearly missed a class in law school. Not once in my Administrative Law class did my professor ever tell me that you could respond to a federal investigation by telling the agency “We know you have authority, but we’d rather not answer these questions because you are a great big meany.” But then, I’m not working for the cable industry, which has repeatedly shown it has trouble with the concept that federal law really applies to them and that the FCC is supposed to be a regulator not a lap dog.

Today’s episode of “I Can’t Believe The Chutzpah” comes from the ongoing investigation by the FCC over whether cable operators are using the confusion around the DTV conversion to push users into buying digital tier service, and rent new digital set-top boxes in violation of the rules on set-top box interoperability, or just generally violating the law by changing channel line ups without notice to either subscribers or local franchise authorities, migrating stuff off basic tier without warning, or charging for additional tiers to get channels required by law to be available on the basic tier. Mind, I’d also like them to explicitly ask whether the cable guys are unfairly migrating unaffiliated channels to digital in violation of Section 616, but that’s just me.

Anyway, after getting a bunch of consumer complaints and reading Consumers Union’s letter to Congress (or at least hearing about it on NPR), the FCC sent out a bunch of letters of inquiry to the named cable companies and Verizon asking them to provide a boatload of information which would allow the FCC to determine if the consumer complaints were, ya know, true. Given that this is lots of people being potentially ripped off big time, the agency told the everyone that got a letter they had two weeks to reply.

Mind you, this is hardly an original process or unique to the cable industry. I should know. The FCC did the same thing in response to my complaint about the wireless microphone guys back in August. The FCC (also under Martin I should add) acted with similar swiftness and intensity back in 2006, when Verizon and BellSouth tried to keep charging USF fees on DSL after they were phased out. The phone companies, apparently under the same misconception that I was that even if you are a big company you actually have to obey the law, backed off. The cable companies have other ideas. And, if they get away with it, I’m sure the Bells, broadcasters, and every one else will follow suit.

So yesterday, NCTA,the trade industry for the cable guys, sent a lengthy letter to the FCC explaining that the FCC is not allowed to investigate the cable industry. They recommend that the FCC rescind the letters of investigation and, instead of having the Enforcement Bureau actually act on consumer complaints, the FCC should hold a nice, quiet Notice of Inquiry instead. Then, if Martin gets all the other Commissioners to agree, and the FCC asks nicely and without any legal compulsion to answer honestly or completely, cable operators might consider responding.

Now I just know, KNOW that there are people out there who hate Kevin Martin so much that they will decide that it is really O.K. for cable to tell the FCC to “fleeting expletive off and die,” because it is the poor helpless widdle cable guys and the evil Kevin Martin (I cannot help but observe that Verizon does not seem to have any problems complying with this request, but of course they are an evil minion of Kevin Martin, or the other way around. Besides, Kevin Martin hates the cable industry, so there!)

As what is often called a “consumer advocate,” I’m a little alarmed that we will now have a new doctrine that says “consumers can complain, but the FCC can’t protect them if we think the FCC Chair might enjoy it.” And while I would flippin’ think that the idea that the cable companies need to obey the law like everyone else would be bloody self-evident, not to mention that the consequences of letting industry dictate to the federal watchdog agency what it will and won’t respect on enforcement go well beyond the poor picked on widdle cable guys to whatever industry you don’t like (in my case, wireless microphone manufacturers — I can hardly wait for Shure to refuse to cooperate with the FCC next), I long ago learned that even bloody obvious things need explaining when it comes to the cable industry and their rabid defenders.

So I address the actual legal issues below . . . .

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Tales of the Sausage Factory:
John Boehner and Conservatives In Exile Make Cakes For The Queen of Heaven; New Generation Dems Prepares To Blow Trumpets and Bring Down Walls.

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Recognizing that some professed conservatives in Congress have some trouble remembering all that “Old Testament” stuff, allow me to clarify the reference. At the end of the Book of Jeremiah, the Babylonians come and do everything Jeremiah predicted would happen if the Children of Israel didn’t stop all their idolatry and oppressing the poor and the helpless, i.e., they destroyed the Temple and took King Zedekiah and a greater part of the people into exile. After the assasination of the Jewish Governor Gedaliah, the remaining remnant of the people hit a new low and — against the express command of God as relayed through Jeremiah — flee down to Egypt. Because the people are basically total a–holes, they drag Jeremiah down with them.

Once in Egypt, God sends Jeremiah with a final prophecy in which he reviews all the times God warned the Israelites to turn away from their idolatries — notably the worship of the “Queen of Heaven” — and how each time Israel refused. God patiently moved from warnings to punishments, and still the people stubbornly refused to repent. In fact, they got worse. Now they have come down to Egypt as pathetic refugees suffering a miserable existence, and God is going to give them one last chance to learn their lesson or “He will give unto them the Bitch Slap Of His Wrath so hard they shall not knoweth whether it be Sabbath or the Day of Atonement.” To Jeremiah’s astonishment, the people give him a big “F-you! What the heck do you know anyway? You radical far left prophet you!” Rather than amend their ways and repent, they tell Jeremiah:

“It is only since we have ceased to burn incense and make offerings to the Queen of Heaven that we have known want, and died by the sword and by famine. And when we burned incense, and poured out drink offerings, and made cakes to the Queen of Heaven, were not our men then with us?”
— Jeremiah 44:18-19.

Or, in other words, the lesson the exiled Israelites learn from suffering defeat after defeat, humiliation after humiliation, is that Jeremiah can’t possibly know what he is talking about and the only way to finally win is keep doing exactly the same thing, but even more so. And, if possible, be even more obnoxious about it.

Connection back to today’s politics below . . . .

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Tales of the Sausage Factory:
Matt Stoller Interviews Me Over On OpenLeft

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As anyone reading the sidebar can tell, I’m a big fan of the folks over at OpenLeft. So I was extremely happy when Matt Stoller asked to interview me on what the November 4 white spaces vote at the FCC means for the future of media and telecom policy.

You can find the interviews here:

Day 1: Broadband and Breaking Up Telecom/Cable/Broadcast Monopolies.

Day 2: Real Use Anywhere ‘Skype-style’ Phone In The Offing.

I have no idea if the Obama people — or anyone else for that matter — agree with me on this stuff. The views expressed in the interviews are my own, just like any other time I talk to the press. In particular, I am pretty sure no one else agrees that our priority should be to “crush monopoly incumbents, drive them before us, and hear the lamentations of their shareholders.” “have a strong national broadband policy that includes federally funded fiber-to-the-home and greater access to federal spectrum for intelligent devices.”

But I hope we can persuade them to agree with me.

Stay tuned . . . .

Tales of the Sausage Factory:
Why Did AT&T Get Left Off The Cable Investigation List — A Very Boring Answer.

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While killing time waiting for the Nov 4 meeting to start FCC Chair Kevin Martin discussed the recently opened investigation into cable pricing. To the surprise of those who conceive of Martin as simply having a “vendetta” against cable, the list of companies getting notices about the investigation included Verizon. OTOH, it did not include AT&T. Needless to say, the “Martin can do no good because he is EEEEVVVVVIIIIIIIIIIILLLLLL!!!!!!!!!!!” crowd hit on this as proof that Martin is merely doing the bidding of his telco masters (Verizon having been added to the investigation merely for protective coloring).

Well, I’ve given my views on Kevin Martin repeatedly. As I have said time and again, I may disagree with him a lot, but I don’t think he is an industry shill. He does what he thinks is right and the devil with the consequences. While this has its disadvantages, notably his managing to piss off the other four Commissioners and thus secure for himself a series of policy set backs and rack up a record of number of votes actually lost by the Chairman, it does mean I tend to look for an explanation that goes beyond “Martin is a bastard 24/7 and therefore this is part of an evil plot.”

Here, I think the non-AT&T conspiracy theory answer is fairly straightforward. It has to do with the particular practice the FCC is investigating — forcing customers to migrate to digital. As AT&T does not seem to be behaving in the same way as the named cable operators that got letters from the Enforcement Bureau, they are not being investigated.

OTOH, even if the FCC does find evidence of deceptive advertising practices or anticompetitive conduct, it may lack authority to act.

Thoughts below . . . .

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Tales of the Sausage Factory:
A Promising First Step

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O.K., it is only a modest first step, but it is still nice to see.

In keeping with that whole “use the internet and new technologies, government transparency, yadda yadda yadda” stuff from the campaign, Obama and his transition team have now set up a new website for the transition at change.gov.

The website includes many of the features that made the Obama campaign website so effective. It is also an unprecedented time to compliance with a campaign promise (even before taking office). More importantly, if you click on the technology agenda, you will observe that it is pretty much the same tech agenda as from the campaign website.

That may not seem like a big deal, until you notice the top items. Protect the Openness of the Internet and Encourage Diversity In Media top the list.

Yes, it is merely a continuation of his previous campaign commitments. Yes, simply saying protecting the openness of the internet is your top priority does not actually gaurantee you will do it. I am not some Kool-Aide drinking neophyte. But I am also not someone who thinks that cynicism substitutes for wisdom and can’t wait to rush to proclaim that all that progressive stuff was just campaign chin music. I find it pleasantly reassuring that (a) these guys continue to show the same level of discipline in planning and execution they did during the campaign, (b) they appear quite serious about the business of governing, and (c) they seem to be on track to take us in the right direction.

Not bad for Day 2 after the election . . . .

Stay tuned . . . .

Tales of the Sausage Factory:
As Long As We're On An Electoral Roll . . . .

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Allow me to engage in a shameless act of self-promotion.

The 2008 Weblog Awards

If you’ve enjoyed either my shamelessly biased but hopefully entertaining coverage of the FCC and other techno-policy issues, or if you enjoy the whole whacky crew here at Wetmachine, why not go and nominate either Tales of the Sausage Factory or Wetmachine for a 2008 Weblog Award. Here’s the list of categories, and the nomination FAQ. None of the categories really fit, of course, although I will note that “law” and “technology” both have relatively few nominations at the moment.

Stay tuned. . . .

Tales of the Sausage Factory:
Commission Meeting Happens! Begins With Gifts To Verizon and AT&T . . . .

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O.K., we finally started at 3:50 p.m. Three items left, VZ/Alltel, New Clearwire, and White Spaces. I’ll split tdo my happy dance on his in two, so I can gripe about the suckiness of the mergers while doing my happy dance on white spaces unsullied by this market consolidation.

Details of merger suckiness below . . .

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