With the Comcast ruling by the FCC, lots of well-earned congratulations are going ’round. Free Press is getting its props, and Larry Lessig is congratulating Kevin Martin.
But hey, we have our own local hero right here on Wetmachine.
So please join me in three cheers for Harold Feld!
The FCC just released the text of the Order adopted on August 1 finding for Free Press on the Comcast Complaint and Declaratory ruling and denying Vuze’s Petition for Rulemaking. You can get the pdf here.
Larry Lessig pretty much says it all with his letter commending the FCC on its decision. For myself, I see this as another in a series of important wins, building on previous wins. Read it, particularly the footnotes, and you will find reference to the C Block openness conditions, the Adelphia Transaction Order, and every other baby step along the road that proved absolutely critical to getting us this far.
And, just as with those victories, we did not imagine for one moment that we had finished our task or that we had solved our problems. The danger to an open internet that remains a platform “as diverse as human thought” in the face of broadband providers trying to convert it into a combination shopping mall, movieplex and theme park continues. But we prevented Comcast from creating an “industry standard” around blocking or degrading peer-2-peer applications and put every ISP on notice that they will need to make real disclosure of their “network management practices” when those practices block or degrade subscriber choices. That the market would not respond on its own — at least not in a positive way — is evidenced by the fact that Comcast, despite all the negative publicity, promises to change, etc., is still targeting bittorrent. To the contrary, had we not acted, I do not doubt that other broadband ISPs would, over time, have adopted this and similar techniques, and without notifying their subscribers in any meaningful way.
We have also created another positive precedent for the day when a future FCC or Congress will adopt rules that provide the level of protection we need to maintain an open and competitive internet. This FCC opinion establishes the jurisdictional basis for any future rulemaking and, while declining to adopt rules now, explicitly states that the FCC retains the jurisdiction to create rules in the future — noting that the Carterfone network attachment rules began as an adjudication and ultimately culminated in Part 68 of the Commission’s rules. Despite a raft of theories (conspiracy or otherwise) to the contrary, this Order does not weaken our efforts to get general rules or get legislation passed. To the contrary, by recognizing that rules protecting the openness of the Internet further the important interests of the First Amendment (Par. 43 n. 203), this Order strengthens our ability to get rules or legislation in the future.
While it leaves certain critical questions — such as whether a third party can pay a broadband access provider for “premium” treatment regardless of user preferences — unresolved, it does so in a way that leaves us free to come back without any bad precedent or presumption. Copps and Adelstein can continue to press for adoption of a fifth principle on non-discrimination without fear that voting for this Order somehow put them in a box.
More below . . . .
I suppose it was inevitable. Let Google enter the policy arena and suddenly that’s all anyone will ever think about. Never mind that Media Access Project and New America Foundation first participated in this policy exercise back in the spectrum task force days in 2002, that we mobilized around this issue (and I blogged on it) back in 2004 before Google or Microsoft showed up, or that New America Foundation has published some ungodly amount of content on this well before Google even had a wireless policy. No, like last summer and the 700 MHz auction, or the 2006 Net Neutrality fight, it is all about the Great Google Overlords blah blah blah. Because everyone knows that no one in Washington really cares about the public interest groups and its all about refereeing industry food fights.
I should note that the utter refusal of the trade press (and others who should know better) leads them to consistently screw up on where the Commission actually goes. Flashback to last November, and I defy you to find any oh-so wise insider with the cynicism that passes for wisdom these days who thought for a moment that a Kevin Martin-led FCC would even consider our complaint about Comcast blocking BitTorrent. When Martin defied expectation and put it out on notice, no one thought we had a chance of getting an actual judgment in our favor. And of course, when we did win, it didn’t disprove anything, since it was either all the work of the Great Google Overlords or a clever reverse fake by Martin to screw Net Neutrality.
I’d let it go as excellent political cover (since God knows most industry lobbyists make the same mistake) and a reason why folks should read my blog to get some balance, but the pernicious myth that no one in Washington cares about anything but major corporate players is one of those things that becomes self-fulfilling prophecy when regular citizens buy into it. The fact is that decisionmakers and policy folks are all over the map here in DC. You will find people who are wholly owned subsidiaries, people who are driven exclusively by ideology and — surprising to many — a large number of folks in both parties trying to do what they think is the right thing given all the information they have and what they think is right. I class all five FCC Commissioners, even the ones with whom I most frequently disagree, as being in this category.
Does it matter that Google is involved? Of course. Not only is it a question of available lobbying resources, but also a question of whether anyone is likely to take advantage of the rule change. That’s not always determinative, but it certainly helps. As the Frontline debacle shows, FCC Commissioners need to worry about what happens if they guess wrong, while still finding the courage to try new things when required. Seeing a company like Google come gives a certain amount of reassurance and makes it a lot easier for commissioners to beleive us public interest folks when we say “yes, open the white spaces to unlicensed and it will get used.”
But for Om Malik over at Giga Om and other well informed press folks to make their judgments about the white spaces based on Google’s involvement or non-involvement is as ridiculous as the worshippers of the Gods of the Marketplace deciding based on ideology without regard to actual evidence. Google’s financial interests are obvious, their interest here long standing, and their latest outreach effort no more or less noxious than those of any other company. In this case, they have the advantage of showcasing organizations that came on the scene (like MAP and NAF) long before they did.
As I have said before and will say many times again, citizen’s movements must be citizen driven. That is their strength, and why so many pundits and lobbyists who mistake lazy cynicism for experience and wisdom seem utterly incapable of understanding. But as long we believe it we will continue to change the world — and reporters like Malik will continue to be smugly wrong about what to expect.
Stay tuned . . . .
Today’s NYT has this op ed on Obama’s use of text messaging to announce his VP pick. It provides a nice reminder about the importance of the pending Petition by PK and others on text messaging. Filed after Verizon denied NARAL a short code but reversed itself within 24 hours the mobile texting petition often gets bundled with the Comcast complaint as if they were essentially two examples of the same thing. They aren’t. The Comcast complaint asked the FCC to follow through on its previous commitment to prevent broadband providers from blocking or degrading content or applications. For all the (well deserved) hoopla around the decision, it was at heart, as Commissioner Tate described, “a normal enforcement proceeding, regarding a particular complaint within the confines of the specific circumstances presented.”
The Petition for Declaratory Ruling on mobile text messaging and short codes is not a complaint (although it is an adjudication). It does not seek to punish Verizon as a bad actor, and it only refers to the NARAL incident as an illustration of why the Commission needs to act. Rather, we ask the Commission to decide — for the first time — whether mobile text messaging is a Title II telecommunications service, like the underlying phone number and voice service. If the Commission decides that it is a actually a Title I enhanced service (like the internet access you can buy separately), we ask the FCC to impose rules that would prevent wireless carriers from denying a short code to someone or from messing with anyone’s text messaging.
Not that Verizon or any other provider would be so foolish as to deny the Obama or McCain campaigns short codes or block their text messages. I’m not even worried about independent candidates like Barr and Nader. No, I’m worried about us ordinary schlubs, or even unpopular folks who can’t count on getting a front page story on the NYT if something happens but still deserve the right to organize and spread their message to willing listeners.
More below . . . .
In an interesting turn of events, industry analyst Craig Moffett takes a look at the growth of cable broadband and overall subscriber growth, as compared with that of telcos and satellites, and comes to this interesting conclusion: Cable is a natural monopoly in the making — and has been on course to do so since about 2005.
What is interesting to me is this is the same Craig Moffett who, during the fight last year on whether cable penetration had triggerred the 70/70 rule that would enable the FCC to significantly regulate cable by reaching 70% penetration, rushed to Commissioner Adelstein (the swing vote in last year’s fight) to explain that cable penetration remained stuck at 60% and would never reach 70% because of all the amazing competition.
Mind you, we all make bad predictions (I still remember with considerable heartbreak my Great Google Prophecy). But Mr. Moffett has a habit of telling Wall St. what a great investment cable stocks are while telling Washington how wildly competitive the market is, how cable can’t possibly exercise market power, and how in no way shape or form should anyone even think about regulating this market.
With Kevin Martin repeatedly saying he is unlikely to act on a proposal by small cable operators to unbundle expensive cable programming and retransmission rights for broadcast signals at the wholesale level, the coast no doubt looks clear to start explaining why cable is such a great investment and will crush its competition. But I will be curious to see what happens if, for example, Congress holds hearings on the FCC’s decision in the Comcast complaint and asks whether we need to regulate broadband. Will Mr. Moffett stand by his “natural monopoly” analysis — even if he argues for deregulation for other reasons? Or will he suddenly discover new life in FIOS, WiMax, and other potential broadband competitors?
Stay tuned . . . .
Comcast has certainly had some lousy luck with contractors. Most recently, a Comcast contractor got all nasty on 74 year old trying to get broadband service. Before that, Comcast contractors were caught literally torturing kittens. And who can forget the unfortunate overworked Comcast tech who famously fell asleep on someone’s couch while on hold with Comcast’s repair center.
I don’t think Comcast actually wants these results. To the contrary, I think they are horribly embarrassed about them and really are doing what they can to weed out bad contractors and hire good contractors.
But Comcast needs to learn a basic lesson here. Having a quality work force is not compatible with cutting costs by hiring the cheapest contractors available. To have a quality work force, you need to invest in your workforce, make long term commitments to provide a good wage and good living conditions and, dare I suggest it, permit workers to come together in collective bargaining units so that workers and management can negotiate realistic contracts that meet everyone’s needs?
Meanwhile Verizon just averted a strike by reaching a tentative new contract with Communications Workers of America and the International Brotherhood of Electrical Workers. The contract, as usual, provides concessions on both sides, but will certainly cost Verizon a bundle more in pay raises and in future benefits than Comcast’s labor force, which depends largely on hiring local contractors and non-union labor.
But in exchange for its financial concessions, Verizon is preserving a skilled and experienced workforce with a proven track record. A workforce that, because of its union-negotiated benefits, will likely remain relatively stable and dedicated even during difficult economic times. Rather like buying itself a large bundle of wireless minutes so it doesn’t run over and pay huge charges, Verizon has ended up paying more in salary and benefits to avoid a boatload of customer service headaches.
Comcast already missed the boat once by opting to build a crappy network that can’t handle broadband capacity like Verizon can handle with FIOS — even though FIOS cost more to build. Perhaps Comcats should consider a similar lesson in its labor practices and encourage, rather than resist, efforts to unionize its workforce.
Stay tuned . . . .
I’m off for my annual escape from the 21st Century. Don’t look for me until after August 10. Sadly, this means I will miss the conclusion of the Comcast bittorrent complaint on Friday, and will no doubt miss a ton of other really cool and important things. Such is life. Frankly, if y’all think I’m a snarky SOB now, you should see me if I didn’t get some vacation.
Stay tuned . . . .
Lest it be said that I refuse to acknowledge a virtue when I see it, allow me to voice my agreement with Mehan Jayasuriya over at Public Knowledge on Comcast’s efforts to track down problems on Twitter and elsewhere.
Mehan refers to this NYTimes piece, which discusses how Comcast customer service folks are looking for complaints about Comcast or its services on open blogs or social network sites and trying to reach out to disaffected customers. Frankly, I see nothing “creepy” about it. I actually think this is a pretty good idea for a number of reasons.
First and foremost, if I am complaining about the service I am getting, I would actually like someone to fix the problem. Most companies have laid off workers and have you go through endless phone trees before you can confirm for someone that yes, I’ve already tried the obvious and would like to get someone who can move past the script and help me with my actual problem. Even sending an email can take a few days for response. I had one incident where I was having difficulty with my cell phone service, sent an email, then resolved the problem, and got a call back two days later (at my work number as requested — they were not completely stupid, just way too slow). This is not useful response time for a service on which I rely pretty heavily.
So I think it’s actually a smart idea to have people monitoring publicly available info to see if you can reach out and solve problems. It may save the company major publicity headaches and help users get their problems resolved.
The other thing is I think it’s a good thing to remind users that what they write on social networking sites or blogs is open to everyone unless they take action to make it private. In this case, the reminder is harmless, perhaps even beneficial. But if you find it “creepy” that a Comcast customer care agent found your complaint about a billing glitch on your personal blog, consider what happens if your boss or coworker discovers your post about what you think of your current assignment and team workers. Heck, even a sophisticated Federal judge can sometimes be surprised with what goes public on the web.
My one caveat is that this works great as long as Comcast, or any other company, identifies itself honestly when making contact just as they do one the phone. For example, if I get a follow up call from my Saturn dealer after my nth gajillionth mile check up, the person identifies himself or herself as calling from Saturn and wanting to know how my service appointment went. From the article provided, it would appear that Comcast staff are identifying themselves as Comcast staff and generally offering help as Comcast customer service staff. Go them.
But it doesn’t take a genius to guess that folks may well begin to wonder whether they can start to use this for direct marketing. Perhaps when you gripe about Comcast on your blog the person that responds won’t be from Comcast but will be from AT&T, offering you a better deal. No problem with that, as long as you remember to change your defaults if you don’t want to be relentlessly market to in this manner. But the real problem is when folks selling products will disguise themselves or their identities. If the helpful commentor that points you to a promotional on DISH is actually working for DISH, but doesn’t identify himself or herself as working for DISH, it starts to get into some very dicey territory.
But again, Comcast actually seems to have a bright idea here. Good for them.
Stay tuned . . .
According to Freepress.net, Martin joins a “Bipartisan FCC Majority” to punish Comcast for its peer-to-peer blocking funny business, already discussed here lots of times.
Like everybody else, I’ll await the in depth analysis sure to come from Harold Feld.
But assuming that this is what it appears to be, I hereby congratulate Chairman Martin. As I reported here, I had a chance to talk to him at the reception following the FCC hearing in Boston. And I found him sympathetic to the point of view that net neutrality was about more than consumer rights, it was about preserving the Internet as an engine of democracy. I wouldn’t be surprised if that argument figured in the deliberations on this ruling. In any event, I’m cautiously optimistic.
It is a rather trite cliche that those who do not learn from history are doomed to repeat it. But in law, where concepts such as precedent and law matter a great deal, there’s an even bigger problem: Those who do not learn from history are likely to miss the obvious.
As we all know, Comcast has invested a lot of time in arguing that they lacked notice that the FCC would enforce the principles of the policy statement via a complaint against them. “How could we possibly have known?” Comcast has asked, winning sympathetic nods from a variety of folks. “Policy statements aren’t enforceable! How can you possibly punish us for something we didn’t know we might be held accountable for, all our public statements to the contrary?”
Well, let us suppose that Comcast was told two years ago today that the FCC would entertain complaints if Comcast blocked or degraded traffic. Would that make a difference? If the FCC had said directly to Comcast: “If in the future evidence arises that any company is willfully blocking or degrading Internet content, affected parties may file a complaint with the Commission.” I would think we could all agree that this constituted “notice,” yes? Perhaps not notice of whether or not the behavior at issue constituted blocking or degrading — that is, after all, what the Commission determines in a complaint. But certainly if the FCC had told Comcast directly, to its face, no ifs and or buts, the above quoted line, I would hope we could all agree that Comcast had received reasonable notice that parties could bring complaints to the Commission, asking the Commission to determine whether the parties had behaved in an inappropriate manner.
Because — Surprise! — exactly two years ago today, that is exactly what the FCC told Comcast.
More below . . . .
