Atkins & Weiser “Third Way” Paper, Isenberg Responds, and My Own Response

A few months back, Robert Atkins and Phil Weiser wrote this paper called a A “Third Way” on Network Neutrality. I recommend reaing the paper, but to summarize: The paper asserts that the NN debate has polarized between the telcos & cable cos, who want an unlimited right to control traffic, and the pro-net neutrality advocates, who want all packets treated equally by the network operator. Atkins & Weiser see this polarization as obscruing the fact that both sides of the debate raise legitimate concerns about market abuse and investment in networks on the one hand, and about government intrusiveness into network management on the other.

Atkins & Weiser therefore recommend an approach they believe addresses both sets of legitimate concerns. Congress should permit network operators to have considerable discretion with tiering — including favoring content based on origin as well as by nature of service. However, to protect consumers from abuses of market power, network operators must (A) fully disclose which packets are favored and why. In this way, consumers can ascertain readily if their lousy connection with mediastreamerA and great connection with mediastreamerB is a consequence of mediastreamerA having a bad service or their ISP cutting a deal with mediastreamerB; (B) Congress should affirm the FCC’s responsibility to monitor the broadband ISP market for anticompetitive abuses and permit the FCC to resolve any abusive practice that may emerge either by adjuidcation or by rule; and (C) the government should provide other incentives — such as tax credits or subsidies — to facilitate broadband deployment.

Recently Dave Isenberg wrote a a strong critique of the paper. Isenberg chastises Atkins and Weiser for falling into what I shall characterize as the attractive trap of the apparently “reasonable compromise.” Isenberg argues that, on the one hand, Atkins and Weiser lack vision. They fail to appreciation of the revolutionary aspects of the internet and the damage to the power of the internet as a disruptive technology if broadband network providers can exercise the kind of control over content and services that Atkins & Weiser would permit under traditional antitrust analysis. On the other hand, Isenberg maintains that Atkins & Weiser fail to appreciate the “Realpolitik” problems of relying on the FCC for enforcement instead of enacting a prophylactic, self-executing rule. Given the potential for agency capture and the length of time it will take the agency to act, a rule which does nothing but set up the FCC as a watch dog with discretion is worse than useless. Only by prohibitting tiering and requiring network neutrality can save the power of the internet as a disruptive technology capable of challenging the core businesses (such as video and voice) of the network providers themselves.

About a month ago, Phil Weiser and I debated this point over on the Public Knowledge policy blog. You can see our back and forth here: Phil’s first post, my response, Phil’s reply to me (with my reply in the comments), and Phil’s final summation.

As folks might imagine, I tend to side with Dave Isenberg on this one, although I recommend the Atkins & Weiser paper to folks interested in alternative views. Atkins and Weiser are no industry shills or ideological Neocons refusing to recognize the potential dangers. And, as I have always said, anyone who wants to formulate real policy rather than foster religious ideology needs to consider other views and recognize where someone else has a valid point. I don’t agree with Atkins & Weiser (for reasons I’ve covered at length in the links and elsewhere), but I’m glad to have considered what they had to say.

Stay tuned . . . .

Network Neutrality In Last Throes! Nationally Franchised Bells to Be Greeted As Liberators!

The signs of increasing desperation in the war of words over the Stevens Bill reached a new low. As reported by Matt Stoller Stevens has released the results of this push poll purporting to show that the majority of voters are interested in cable, not network neutrality, and would prefer to get the Bell video franchising bill passed without net neutrality provisions attached.

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What the FAA?

How the heck did the Federal Aviation Administration (FAA) get into regulating the wireless industry (both licensed and unlicensed)? The FAA has proposed requiring pretty much any wireless service with an antenna to fill out a form for every antenna and antenna change. Right now, only services with big antennas (like broadcasters) near airports fill out FAA paperwork.

As the FCC gently points out in its own filing, the FAA does not seem to understand just how much this would increase paperwork for the industry — and for the FAA to process. Given that the FAA does not seem to have any reason to think that these antennas will cause rampant interference and bring planes out of the sky, maybe the FAA wants to rethink this?

Other industry groups, such as the National Association of Broadcasters, the Cellular Telecommunications and Internet Association, and various professionals have all stopped by to politely sugest to the FAA that, perhaps, the FAA HAS LOST ITS BLEEDIN’ MIND AND DOES NOT KNOW WHAT THE HECK IT IS TALKNG ABOUT.

What’s interesting for me is that this is yet another demonstration of how the various components of the Bush administration just don’t seem to ever speak to each other. During Katrina, the FCC outshone just about every other federal agency in the competence department. But as the FCC’s Katrina Report (and testimony from my friends in the wireless community who came down to help in the crisis) shows, there were huge problems getting the other government agencies to respect FCC authorized damage control teams and FCC licensed services. Meanwhile, we have the Patent and Trademark Office negotiating a major overhaul of broadcaster rights at a WIPO treaty, with apparently no involvement from the FCC or any other potentially impacted agency. The Chair of the Federal Trade Commission has announced it will set up its own task force on net neutrality — again without any apparent involvement of the FCC.

And that’s just the stuff in my own little corner of the world. Look around Washington these days and you see little effort by the Bush administration to require any kind of cooperation among the various agencies. We get overlap, paralysis and turf wars galore. But we don’t seem to be getting much done.

It’s not all bad, of course. Traditional relationships, like between the FCC and the National Telecommunications Information Administration (NTIA) appear to be working just fine. But something is seriously wrong when the FAA just decides to issue a notice about all antenna structures in the United States, and apparently does not even think about picking up the phone first and calling someone at the FCC and saying “Hi there, we’re thinking of doing a rulemaking on stuff that impacts industries you closely regulate; can we get together and chat first so we don’t horribly embarass ourselves?”

Stay tuned . . . . .

Just When I Think They Can't Get Any More Patheticly Lame

I cannot lower my expectations enough for the advertising on the anti-network neutrality advertising. Behold the latest well reasoned argument from the cable industry!

“Net Neutrality is bad, because we tell you so.”

I’m the last to underestimate the effectiveness of industry ad campaigns at confusing the issue, but this just blows my mind with new levels of idiocy. Desperation has clearly set in.

Stay tuned . . . .

Tiering, It's Not Just For Telcos Anymore

Years ago, I used to spend a lot of time in ICANN-land. Happily, my contacts these days are pretty much limited to the occassional post-cards from friends.

But a recent contretemps caught my eye. Apparently new registry contracts will now allow price-tiering for names. As Milton Mueller at ICANNWatch observes, this raises similar worries as tiered internet access.

This is why Sascha Meinrath’s & Victor Pickard’s new paper on redefining net neutrality is important. Meinrath and Pickard make the very good point that the openess of the Internet rests on more than just residential access providers. Those concerned with the current fight to maintain net neutrality — as narrowly defined as preventing the last-mile access provider from defining the internet experience — should be aware of the need to protect other potential bottlenecks from emerging.

And, for us old timers, there is a certainly irony. Back in ye ancient days, when the “destroy the evil tld monopolist Network Solutions” [now Verisign the registry, not NetSol the registrar] crowd were backing ICANN, one of their great boogeyman arguments for ICANN regulation of registries was it would prevent tiered pricing of names. Some of us tried to explain how things like “agency capture” work, and that therefore such policies could change unless we inserted suitable checks and balances in ICANN to maintain accountability, but we were just lawyers and other useless policy types and they were the engineers who built the domain name system, so what did we know? (Bitter? Me? Why do you think I no longer spend time in ICANN-land?)

What I love most about reality, is how it will always turn around and bite you in the rear end if you decide to ignore it. Reality soooo does not care that you chose to be ignorant of things like economics and political science, any more than it cares when idiots in poli-sci decide they can dictate technology and try to make idiotic rules about blocking net gambling or blocking indecency or outlawing peer-2-peer. Reality doesn’t care. It just is.

Gotta love something that democratic.

Stay tuned . . . .

Appears that Rose and Lloyd (and me) were right . . .

A month or so back, I reported that Greg Rose and Mark Lloyd had written a study for the Center for American Progress concluding that incumbent wireless providers used spectrum auctions to block the mergence of new competitors. Then came the AWS auction, with its legion of bidders. “A ha!” Declared the Wall St. Journal and others in the anti-net neutrality, anti-regulatory, pro-spectrum property camp. “Look at how the market-based policies create competition! No need for regulation here!”

Turns out, not so much . . . . Either for new spectrum entrants or for broadband competition.

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Hat's-off to Ken (and treats on the tube)

I’ve written before about my belief that we’re inexorably entering — and some of us resisting — a paradigm shift in how humans think of information, imagination, creativity, freedom, and non-real property. So I was unexpectedly delighted to receive this letter to all of the university’s Division of Information Technology staff, from our new (heh heh) interim CIO, Ken Frazier. (Below the fold.)

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Colbert Takes on the Morning “News”

Not to be outdone by Jon Stewarts superb explanation of net neutrality, Steven Colbert gives a most excellent slam on the hollowness of today’s morning “news” shows. You can watch here.

The sad thing is that Colbert is right (“as always!” he would add) in a number of critical respects. First, his show actually does more in depth political reporting than most news shows. His “434 part series ‘Better Know A District’ (he eliminated Connigham’s district)” is actually very revealing. Second, so called morning “news” shows are to real news as “People” is to real news magazines.

Susan Crawford's Five Good Question

Susan Crawford, a law Professor at Cardozo and a Board Member of ICANN supportive of Net Neutrality, asks and answers five good questions about Network Neutrality. Chris Yoo, a law professor at Vanderbilt and opposed to Net Neutrality, gives his answers (along with Susan’s) here. Harold Feld, not a law professor anywhere, gives his answers below.

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