Tag: network neutrality

What Dems Have To Lose If Genachowski Embraces The Latest “Net Neutrality Consensus.”

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I occasionally suspect my colleagues in the Public Interest community lack a sense of humor — although perhaps it is simply that I am in a more relaxed frame of mind after my annual vacation from the 21st Century. I am neither surprised nor outraged at the recent news that members of the Information Technology Industry Council (ITIC) are picking up where the FCC “secret meetings” left off and trying to come up with a net neutrality consensus framework. To me, it seems rather sad and funny. My only surprise is that even in Washington, the notion of an industry trade association working with its members is anything unusual or significant. I mean, that’s what industry trade associations do after all.

The sad thing is that, given the utter genius the Obama Administration has shown for pissing off the Democratic base through constant waivering, there is every reason to believe that the FCC might be tempted to view what comes out of this “industry consensus process” as something it can embrace to its bosom. This would be a disaster not merely for Genachowski and what remains of his reputation, but for Congressional Democrats as well. If there is one unequivocal lesson that came out of the Goog-VZ debacle last week, it is that the Netroots care deeply about this issue. While I get that the DC establishment considers the Netroots something of an embarrassment (or, as Rahm Emmanuel famously opined, “bleeping retarded”), Congressional Democrats understand that unless the Netroots (a) keep giving money, and (b) turn out and vote, they are toast — as evidenced by Alan Grayson’s abrupt about face from his previous “let Congress handle it in our own sweet time” to “Congress and the FCC must step up now.”

More below . . . .
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Why We Care About Broadband Policy, Not Competititon.

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I’m back from my week of travels, where lousy broadband connectivity prevented me from blogging my trip to the NARUC Summer Conference and trip to Netroots Nation. Hopefully, I will get to fill in some of the blanks. NARUC (the National Association of Regulatory Utility Commissioners) passed some good Telecom resolutions supporting the FCC’s reclassification of broadband back into the Title II telecom box (although reminding the FCC that states have an important role to play and therefore to use preemption sparingly), and urging the FCC to address early termination fees for cell phone services.

So to get the ball rolling, here is a reprint of my opening remarks in the “framing debate” between myself and Ray Gifford from our Wed. morning NARUC Telecom session. As regular readers know, I’ve argued that things like Network Neutrality are right as a matter of economics (that is, they promote a better economic outcome for everyone: see economists make this argument here and here), that it is critical as a matter of First Amendment freedom and to prevent “virtual redlining.” Below I add an additional argument, what Ray characterized (and I agree) is a “progressive era” argument for why we care about broadband policy.

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Genachowski Hits The Legal Reset Button — “Title II Lite”

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Genachowski has announced his proposed response to the Comcast case. This is precisely the result Comcast and the other carriers feared since the DC Circuit panel signaled at oral argument they would slam the FCC.  In my latest “5 Minutes With Harold Feld,” I give a short (at least, as short as I can) explanation of what this “Third Way” (also referred to as “Title II Lite”) means and what happens next from a process perspective. Some additional analysis, laughing at Wall St. analysts, and reference to a Dilbert from 1992 below . . .

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McDowell and Baker Want To Preempt States on Broadband Reporting? Fat Chance Under Title I.

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Sometime back, I coined the term “Cassandrafreude.”  A compound of “Cassandra” and “schadenfreude,” it means “the bitter pleasure derived from seeing someone else suffer in the way you predicted even though you are getting screwed yourself.”

I am experiencing a healthy dose of Cassandrefreude watching FCC Commissioners McDowell and Baker push the FCC to preempt state data collection of broadband deployment (statements here and here). The matter came up when the FCC issued a Declaratory Ruling findng that nothing in federal statutes or previous FCC orders stops states from collecting their own information about broadband deployment. The ruling expresses no opinion about whether state PUCs have existing authority (given that broadband is a Title I “information service”) or whether or not it would be a good idea for states to collect their own data. But even this specter that someone somewhere might do something carriers don’t like prompted Republicans McDowell and Baker to push for the FCC to preempt state authority to collect information. After all, as we all know, broadband providers are timid creatures and likely to be scared off by the least thing that could conceivably raise their cost of doing business — as the broadband providers themselves constantly remind us.

I’ll zip past the usually irony of Republicans who supposedly venerate federalism and demand record evidence before the FCC contemplates action to protect consumers sounding the alarm bell that unless the FCC rushes to preempt state governments, it will mean the end of broadband investment as we know it. Lets get right to the juicy part that fills me with such unbridled Cassandrafreude.

Under what authority, exactly, would the FCC preempt state collection of broadband data?

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A Bad Bit of Timing For RCN — Public Comment Opens On Merger Day After Blocking Goes Public.

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Welcome back everyone to the new and improved Wetmachine.com! I beg everyone’s indulgence while I figure out our new interface.

Every now and then, the universe hands you some lousy timing. Case in point for RCN. Back in March, when RCN announced its pending acquisition by Yankee Group, no one gave it a second thought. It all looked very uncontroversial and part of the natural consolidation for the few survivors of the debacle we call “intermodal competition.” But in what RCN can only view as the worst possible timing, the FCC put the deal out for public comment right after several stories that RCN had settled a class action for blocking p2p applications in a manner reminiscent of Comcast. (RCN “vigorously denies all wrongdoing,” but it is unclear whether they deny blocking or whether they deny they did anything wrong by blocking.)

Why does this matter? Because RCN has just become the prime opportunity for the FCC to answer the question “What’s our authority after the Comcast/BitTorrent case?”

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The Comedy of Comcast v. FCC Part I — What Did The Court Actually Do?

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It’s been rather busy the last few weeks. Between my unfairly holding Sprint responsible for its own screw ups, shamelessly cheering on the documentation of our national broadband drought by Our Great Google Overlords, and generally crushing all who dare oppose me, it’s been hard to find time to blog about stuff. So naturally, while I was away for the last day of Passover, the DC Circuit issued its long awaited decision in the Comcast/BitTorrent case, Comcast v. FCC.

Needless to say, the opinion was greeted with the total hysteria that has become the hallmark of the network neutrality debate — with terms like “Nuclear Option,” “World War III,” and “spanking.” Opponents of FCC jurisdiction rejoiced, supporters of network neutrality lamented, and a few shrewd observers noted that the actual outcomes could prove far worse for Comcast and the incumbents than if Comcast had lost (as I noted after oral argument last January).

My co-counsel, Marvin Ammori, has written up his retrospective here. Understandably, he’s rather bummed. Despite this whole thing being my idea in the first place, however, I’m actually rather pleased and amused with how this whole thing is turning out. Sure, I would much rather have won. But as the history of the last 2+ years of this unfolds, the tale of how Comcast managed to bluff, badger, and bungle itself into a position where it has not only guaranteed harsher condition on its merger with NBC-Universal, but revived the possibility of classifying broadband access as a Title II telecom service for the first time in 10 years, is the stuff of high farce. And while I wish I could claim credit for this outcome, the real “heroes” here are Brian Roberts (head of Comcast) followed closely by AT&T, NCTA and the Republican party.

To try to keep this manageable, I’ll divide this into two posts. Below, I will try to set forth what the court actually said and the immediate legal implications, without worrying too much about the overall policy. While I can hardly claim to be an impartial observer, I’ll do my best to identify my editorial comments as such and note where reasonable minds can differ. In Part II, I shall shamelessly indulge myself with my own eyewitness to history and why I think the Comedy of Comcast v. FCC deserves its special place in the realm of farce — although we have by no means reached a certain conclusion.

More below . . .

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Richard Bennett Invites Me To A Panel On Tuesday March 2

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Back in October, Richard Bennett wrote a paper on why he thought network neutrality was particularly inappropriate — indeed, dangerous to the future evolution of — mobile internet access. On Tuesday March 2, his employer, The Information Technology & Innovation Foundation will be hosting an event to discuss the paper, mobile internet access and policy. He’s asked me to join Barbara Esbin from Progress and Freedom Foundation and Morgan Reed from the Association for Competitive Technology on a panel to discuss the issues. Should be fun.

Click here for the event announcement, which contains an RSVP link.

Stay tuned . . . .

Incumbents Bring Tea Party Tactics To Title II Reclasification Fight.

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I have never accused the incumbents of being overly subtle, especially when they feel threatened. But this new 14-page letter from the major cable and telco trade associations — as well as from the three biggest ILECs and Time Warner Cable (Comast shows unusual, perhaps merger inspired, diplomacy by sitting this one out) — hits a new low on the “Lack ‘O Subtlety Meter.” Given that the only one actively pushing reclassification these days has been yr hmbl obdn’t blogger, I should take this as a tribute to my personal skill. But it seems more likely an extension of the “shock and awe” tactics used by the incumbents to try to derail NN from the beginning.

Of course, this goes well beyond network neutrality. As AT&T’s previous lengthy exercises trying to justify Universal Service Fund reform under Title I (as well as AT&T’s less-than-direct acknowledgment that eliminating the phone network in favor of an IP-based network would eliminate interconnection requirements and complicate public safety access) attest, the question of FCC authority over broadband and what it can or can’t do under Title I impacts every area of the National Broadband Plan agenda.

Most of the argument in the letter is pretty standard, boiling down to “the universe is great under Title I dereg, don’t mess it up,” “Title II will impose horrible regulation, kill investment, destroy jobs, strangle puppies, etc.” with an additional “the FCC has no basis to change classification because nothing important has changed since the FCC reclassified last time.” Two things, however, require attention. Sadly, they mark the introduction by major players into the realm of “Tea Party” tactics similar to the Death Panels and mud slinging that have infected the health care debate and the financial reform debate.

More below . . .

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McDowell Forgets He Already Voted That FCC Has Authority To Enforce NN Rules.

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I recently complained that no one else ever seems to follow the record on the network neutrality stuff. But Commissioner McDowell took the prize for failure to remember what he had previously voted for in this very proceeding back in March 2007 when the Commission voted out the Notice of Inquiry that started this whole thing. Mind you, McDowell should not feel too bad, given that nobody else at the FCC seems to remember this stuff either. Not when they wrote the Comcast/BitTorrent Order, nor even when they wrote the Notice of Proposed Rulemaking last week. Despite the fact that both items are actually in the same blasted docket. Because good God almighty, how hard is it for the staff at the FCC to actually know the friggin’ docket? It’s just the basis for this entire proceeding. And the entire collective agency cannot remember that it voted as settled law by 5-0 that it has authority to regulate and enforce network neutrality rules. And that McDowell not only voted in favor, he explicitly concurred!

I swear, it’s enough to make a poor obsessed policy wonk tear out what’s left of his hair and beard.

More below . . . .

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Canada Adopts Comcast/Bitorrent Standard For Network Management

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On the eve of the FCC’s upcoming Network Neutrality rulemaking, Canada has now settled its definition of “reasonable network management” and set rules for traffic throttling. Amazingly, the rules the Canadian Radio-television and Telecommunications Commission (CRTC) settled on for “reasonable network management” look a lot like the standard our own FCC settled on in the Comcast/BitTorrent Order, but even stronger on the notice and transparency side. Hopefully, the FCC is paying attention here as it considers its own rulemaking on the definition of “reasonable network management.”

You can read the CRTC press release here and the detailed order here. The CRTC also says that it will sue this new framework “to review practices that raise concerns or generate complaints.” i.e., it will treat this as the equivalent of the Internet Policy Statement and entertain complaints like the Comcast/BitTorrent complaint.

While this means I will no longer have my realtime experiment to see if unrestricted traffic shaping screws up broadband, it does make the FCC look less like whacked out nutbars who don’t understand engineering and threaten the entire internet and more like foresighted regulators who are ready now to move on to a formal rulemaking rather than merely rely on a framework.

Moe below . . . .

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