If McConnell Trusted His Own Party, He’d Follow the “Bork Precedent” and Hold A Vote.

There are a lot of interesting questions about the possibility that the President will appoint Judge Sri Srinivasan to replace the late Justice Antonin Scalia on the Supreme Court. For example, what happens if the D.C. Circuit has not yet voted out the net neutrality case? If Srinivasan is nominated and confirmed, would he be able to participate in an appeal of the net neutrality case? I, however, do not propose to answer either of those questions here.

 

No, I’m going to take a moment to urge Republicans to do the right thing and follow the Bork precedent of which they make so much — have a vote and reject a nominee you don’t like. That’s what the Constitution says ought to happen, and it’s a perfectly legitimate thing to do.  The meaning of “with advice and consent of the Senate” has changed a bunch over the years, but it is clearly intended as a restraint and means of forcing cooperation between the Senate and Executive, as discussed by Hamilton in Federalist No. 76.  (Hamilton thought the power to reject appointments would be little used. Unfortunately, George Washington was right about the corrupting influence of party factionalism.)

 

So why have Senator Mitch McConnell (R-KY) and Senator Chuck Grassley (R-IA), the Chairman of the Judiciary Committee, refusing to hold even a hearing on the as-yet-unnamed Obama Appointee? Fear. They cannot trust their own party to toe the line, especially the 8 Republican Senators facing difficult re-election fights in swing states.

 

While the check on the President is the need for advice and consent of the Senate, the check on the Senate is that they do their work openly, with each member accountable to their state. If Republicans really believe that “the people deserve to decide,” they would vote to reject the nominee and let “the people decide” if they approve of how their Senator voted. But of course, that would mean letting the people actually talk to their Senators while considering the vote, and potentially voting against those Republican Senators who disappointed their independent and swing-Democratic voters.

 

So the GOP elite leadership have conspired once again to take matters out of the hands of the people. Not by following the Bork precedent, which got a floor vote. Not even by filibustering the nominee, as the combined Republican/Dixicrat alliance did for Abe Fortas. No, the GOP leadership have such little trust for their own party, and the voters, that they will not even let the matter come to the floor.

 

More below . . .

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A Reflection on the First Thanksgiving.

It is fashionable now to conflate the 250 year American experience between the European settlers and the Native Americans as simply one of oppression and displacement. Or, as one friend put it: “I’m Thankful that a bunch of European religious fanatics came over and displaced the native population.”

But it wasn’t like that at the First Thanksgiving, or for about 35 years thereafter. In failing to appreciate the efforts of English settlers and Wampanoag tribes in the region to live together in peace in the first three decades of English migration to Plymouth, we ignore both that a better world was possible — and that we have the capacity to build a better world today . . .

 

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In Memoriam: Wally Bowen — Internet Pioneer, Community Activist, and A Hell of God Guy.

Last week, we lost a true leader for rural communities, a true champion of social justice in communications policy, and a personal friend and inspiration.  Wally Bowen, founder of Mountain Area Information Network, died of ALS (aka “Lou Gehrig’s Disease”) on November 17 at the age of 63.

You can read his official obituary here. As always, such things give you the what and the where, but no real sense of what made Wally such an amazing person. I don’t have a lot of personal heroes, but Wally was one. Simply put, he gave the work I do meaning.

It’s almost Thanksgiving, and I am truly thankful for the time we had with Wally on Earth, even if I am sorry that it ended too soon. I elaborate below . . .

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Broadband Access As Public Utility — My Speech at Personal Democracy Forum.

On June 4, I gave a speech at Personal Democracy Forum (PDF) on Broadband Access As Public Utility (the official Title was The Internet As Public Utility, but my original title and my conception still is about broadband access specifically because “the Internet” has become a very vague term). For those unfamiliar with PDF, it is a truly awesome conference organized by Micah Sifry and Andrew Rasiej that brings together folks from all over the tech world to discuss how tech can make a better world and be an expression of our values. This year’s focus was on how tech can facilitate civic engagement. This year was my first time to PDF, but I am definitely going to do my damndest to come back next year.

 

I’m pleased to say my speech was well received.  I’ve included the video below. (You can find videos of the other speakers in the PDF15 Archive.)  My speech turned out to be about 15 minutes long, which means it was 3 minutes over. Even so, there are some significant differences between what I wrote in advance and as actually delivered (which happens to me often), which is why I reprint my original “as prepared” remarks below the fold.

 

A few basic points I want to make as take aways. As I keep stressing, the term “utility” and “public utility” does not imply any particular mode of regulation or requirement for natural monopoly or market power. The term goes back to the concept first elaborated in Adam Smith’s Wealth of Nations on the purpose of government, including: “the duty of erecting and maintaining certain public works and certain public institutions, which it can never be for the interest of any individual, or small number of individuals, to erect and maintain; because the profit would never repay the expense to any individual or small number of individuals, though it may frequently do much more than repay it to a great society.” The Federalist Papers further expands on this idea, justifying the Constitution as necessary to create a government sufficiently “vigorous” to meet the needs of the people.

 

The innovation of the post-Civil War era was to identify services which, although provided in many cases by the private sector, were too important and too central to society to be left wholly to the dictates of the market and private companies. It is in this sense that Franklin Delano Roosevelt meant “utility” in his letter to Congress calling on creation of the Federal Communications Commission, which begins: “I have long felt that for the sake of clarity and effectiveness the relationship of the Federal Government to certain services known as utilities should be divided into three fields: Transportation, power, and communications.” To use the older statutory language, these services are “affected with the public interest,” and therefore government has a responsibility to ensure their fair, affordable ubiquitous availability.

 

I argue that broadband, in the tradition of all our previous communications services, now falls into this category of services so essential that they are public utilities. I do this knowing full well that those opposed to any form of government oversight of essential service or opposed to the public provision of critical infrastructure will deliberately misconstrue this to mean traditional rate-of-return regulation. To this I can only say *shrug*. The first step in ensuring proper broadband policies lies in reclaiming the term public utility for what it really means — a service so essential that the government has a responsibility to ensure that, one way or another, everyone has fair and affordable access. We must embrace that fundamental value as firmly as we should reject a return to rate regulated private monopoly provision — or the worse alternative of entirely unregulated private monopoly provision.

 

Enjoy.

 


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Comcast/TWC/Charter — OK, NOW It’s Time To Pop The Champagne, And Thank Staff For Doing Their Job.

Yesterday I wrote that it was too soon to start celebrating and that we could expect Comcast to muster its vast army of lobbyists and effectively bottomless treasury to keep trying to push its merger through. I even gently chided Tim Wu for declaring the Comcast deal “dead.”

 

Well, I am incredibly happy to eat crow on this one. To my surprise, Comcast decided to pack it in rather than push like Hell for the next few weeks. But on reflection, Comcast’s decision makes sense for several reasons. I will break these out in a separate post. But first, before the wonky stuff, I want to pause and reflect on the last 16 months.

 

At the start of 2014, things looked grim. First, the D.C. Circuit threw out the old Net Neutrality rules. Then Comcast announced it would buy Time Warner Cable. People believed that in corrupt Washington, no one could stop the well-connected Comcast whose CEO plays golf with Obama from getting what it wanted, and assumed the “former cable lobbyist” Tom “dingo” Wheeler would simply hand the Internet over to his cable buddies.

 

In February 2015, the FCC reclassified broadband as Title II. Today, Comcast will announce that it is abandoning its effort to acquire Time Warner Cable in response to resistance at every level of government. And Tom Wheeler appears on track to put a real pro-consumer, pro-competition agenda in place.

 

I know it is typical at this point for me to remind everyone that we have proven once again that Citizen’s movements are citizen driven!   And it is indeed the case that without the massive and coordinated efforts by the grassroots at every level — like my friend Hannah Jane Sassaman and the Media Mobilizing Project taking it to Comcast HQ in Phildelphia (and who continues to organize efforts to reform Comcast’s practices via the city’s refranchising process), the folks at TURN and Greenlining who opposed Comcast at the California Public Utility Commission, and everyone who wrote to the FCC or called their member of congress — we could not have won these battles and the battles yet to come.

 

But we also need to actually appreciate the hardworking folks at the Department of Justice and the Federal Communications Commission who actually did their jobs and looked at the facts and recommended the right thing — despite all the pressure some of the most powerful corporations in America could bring to bear. The staff who took the time to pick apart all the carefully prepared expert statements and the professionally prepared and packaged “evidence” submitted by Comcast and sift through the millions of pages of documents submitted into the record, patiently building the legal and factual case against the merger that could survive not only judicial scrutiny, but the anticipated counter-attack by the army of coin-operated think tanks and shills.

 

Yeah, those guys. The despised “bureaucrats” and the FCC and DoJ bosses who had their backs and gave them room to do the right thing. Them. They did their jobs. They worked hard at it. They came to the right result.

 

Next time you want to score cheap points or enjoy the pleasures of easy cynicism, remember that. I’m not saying they’re perfect, or all good and pure and noble. Heck, I spend a good deal of my time trying to swim upstream and push staff in directions they may not want to go, and am not afraid to call out the bad calls, the politically based decisions, and the stuff that’s just plain wrong — often in rather snarky and unflattering terms. I’ve got a job to do as well, and that means making sure that those in charge don’t get a free pass when they side with special interest against the public interest.

 

But I am saying that there are a lot of people at the FCC — and in federal service generally — trying to do their job and get it right. Sometimes they even succeed, if the process lets them. When that happens, it would not kill you to say “thanks.”

 

Stay tuned . . . .

 

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Today is FCC Net Neutrality Order Day! What Happens Now?

Word is today the FCC will release its network neutrality order reclassifying broadband as Title II. I’ll update with a link when that happens.

UPDATE: Here is the Order in all it’s yummy geeky goodness.

UPDATE #2: I goofed on the length of time parties have to file petitions for review with the federal appeals courts. I cited 47 U.S.C. 402(c). But as a kind reader emailed me, the mandatory time limit in 402(c) only applies in the limited number of instances listed in 47 U.S.C. 402(b) — cases with exclusive jurisdiction in the D.C. Circuit. In most cases, including here, petitions are filed under 402(a), which directs the filer to the procedural rules under the time allowed under 28 U.S.C. 2344. That gives parties 60 days to file a Petition for Review, not the 30 days specified in 47 U.S.C. 402(c). This error is now corrected below.

My only excuse is I was dashing this off quickly in the morning and forgot about this distinction between 402(a) and 402(b). It was annoyingly sloppy on my part. My thanks to the reader who chose to correct me very gently by email rather than mocking me disdainfully on Twitter or in the comments section.

Below is a (relatively) short FAQ on what happens now.

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My Insanely Long Field Guide To The War On CableCARD — Part II: STAVRA Section 203.

When it comes to special interest sleaze, Section 203 of the Satellite Television Access and Viewer Rights Act (STAVRA) is just an absolute brilliant work of art. We like to talk about how much money cable throws around, about Comcast Chief Lobbyist David Cohen golfing with President Obama, yadda yadda yadda. But that is just crude muscle.  Getting a blatantly anti-consumer provision inserted in a pro-consumer bill behind the scenes, and getting it rammed through by a combination of obscurity, chicanery and log-rolling, is where that army of lobbyists earns their 6-and-7 digit salaries.

 

I gave the whole bloody history in The War on CableCARD Part I: More Background Than You Can Possibly Imagine. To review, Section 203 of Stavra (and its matching provision in the House STELLA 2014 bill) cripples CableCARD  by eliminating the “integration ban.” This effectively ends any hope third party devices will compete with the cable industry, and we remain stuck leasing digital video recorders (DVRs) and set-top boxes (STBs) and other equipment and services from cable operators rather than owning our own or using cheaper, better rival services. Consumers pay over $1 billion in rental fees annually to cable operators for equipment they could otherwise own. So eliminating the integration ban (and thus killing CableCARD) pretty much condemns consumers to keep getting gouged for the foreseeable future just when independent equipment like the TiVo Romaio is finally starting to take off.

 

To add to the special interest sleaze factor, Section 203 of STAVRA converts a pro-consumer bill (that was originally a lot more pro-consumer) into a billion dollar rip off of consumers for the profit of one of the most loathed industries in America. And it does so in such a subtle way that it is almost impossible to detect. AND it comes with a fake pro-consumer ‘solution’ so the cable industry (and, more importantly, members of Congress seeking cover) can claim to have the best interests of consumers at heart.

 

Happily, it has an easy fix and a champion to convert this back into an actually good pro-consumer bill and have this blow up all over the cable guys so that they will be hoist by their own petard. Oooh, such justice would be sweet. And eminently achievable.

 

If you want the short version of this, without the appreciation of all amazing special interest sleaziness, you can see these Public Knowledge blog posts: here, here, here and here. But if you want the full TotSF treatment with all the wonk and snark you’ve come to expect from yr hmbl obdn’t blogger, then see more below . . . .

 

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My Insanely Long Field Guide To The War On CableCARD — Part I: More Background Than You Can Possibly Imagine.

We often talk about the power of cable lobbying in the context of big proceedings like network neutrality. But where the real power comes, and where consumers routinely get screwed the most, happens off-screen. Because people hardly ever know what is happening, cable lobbyists play an outsized role in working their magic and making it legal to find new ways to screw over subscribers. Nothing illustrates this better than the fight over the Satellite Television Access and Viewers Rights Act (STAVRA). As my Public Knowledge colleague John Bergmayer explains in this blog post, unless Congress passes STAVRA, a lot of satellite TV subscribers will lose access to some of their broadcast channels. Since Americans totally freak out if they cannot watch their favorite show, and channel this rage to their members of Congress, that makes STAVRA “must pass” legislation.

 

The cable industry lobbyists have managed to append this bill designed to protect consumers a little gift to themselves. Cable operators make over $1 billion a year on equipment rentals to subscribers. Section 203 of STAVRA eliminates the FCC rule (“the integration ban”) that makes it even vaguely possible at the moment for people to avoid these rip off rental fees and actually buy your own cable set top box (STB) or digital video recorder (DVR) using something called CableCARD.

 

From a policy wonk perspective, I have to say that Section 203 of STAVRA is a work of art. Unless you know what to look for, you will never find it by flipping through the bill. And unless you know the whole background on how the cable industry has frustrated the effort to get competition in the STB and cable device attachment business, you would never know how the cable arguments about how CableCARD doesn’t work are self-serving baloney. And, best of all, Section 203 contains a fake solution so members of Congress and the cable lobby can pretend this will make things better, rather than continue to screw consumers out of hundreds of millions of dollars in cable fees annually.

 

Hence the need for two insanely long posts. But since we are talking about consumer rip offs of over $1 billion a year, I kinda hope you will consider it worth reading. Here in Part I, I will give you everything you need to know about the history of how cable has ripped us off on equipment rental fees despite Congress passing two separate laws (here and here) to make it possible to actually own equipment and avoid this nonsense (which worked from 1992 until we went digital), what the heck the “integration ban” is, and why CableCARD — lame as it is — actually does make things mildly better and is picking up steam as a result of stuff the FCC did back in 2010.

 

In Part II, I will cover the current fight over the Section 203 of STAVRA, what makes Section 203 such an amazing work of art and how Senator Ed Markey (D-MA) is standing up for consumers on this. With help, Markey can actually flip this around and convert this from a gift to the cable industry to something that would genuinely help consumers by making the promise of stand alone STBs and other cable equipment real. But, at a minimum, Markey needs help getting the bad provision stripped from the bill so we can at least keep what we have and keep working to make it better.

 

Part I with all the background you need to understand Part II below. You can find Part II by clicking here.

 

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What Do We Learn From Big Data Visualizations Of Net Neutrality Comments?

“Big data” and “Data visualization” are all very trendy these days. As with all tools, data analysis and data visualization require appropriate context to make sense. As my old mentor Professor Robert Seidman liked to caution: “you generally find the most firetrucks at the biggest fires.” Understanding context tells you cause and effect so that you don’t try to fight fires by eliminating firetrucks.

 

Which brings me to the analysis of the public comments in the FCC’s ongoing network neutrality proceeding. The FCC has received about 1.1 million comments so far (we can expect more when replies come due in September). To facilitate further discussion and debate, the FCC released these comments in 5 XML Files that make doing searches and analysis much easier. We have started to see some data crunching of this data, with a range of results. As someone with 15 years experience with FCC proceedings, I can put these in some context.

 

Briefly, the volume of individual comments and the analysis shows a high level of engagement. More importantly, the comments do not simply reflect the talking points we see in the mainstream media and debated in DC policy circles. A lot of people are actually thinking about this issue and deciding why it is important to them personally, and it has nothing to do with cat videos or Netflix. For a lot of people, this debate goes to fundamental values of basic fairness, opportunity, the American Dream, and the preserving free expression and diversity of views.

 

Perhaps most tellingly, the number of individual comments opposing net neutrality regulations as unnecessary and overly burdensome government regulation of the Internet is so small as to be statistically irrelevant to data visualization analysis. Those people who are engaged on this and care enough to comment all run one way — they want the FCC to adopt rules that prohibit paid prioritization and protect an open Internet.

 

I unpack this below . . .

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Net Neutrality Videos Much More Interesting Than I Could Ever Make.

It’s impossible to keep up all the videos about net neutrality. Heck, I have been delinquent in flogging my own. For example, I have two new “5 Minutes With Harold Feld” videos out: one on what I call “virtual redlining” (about how permitting prioritized content invariably leads to targeting and segmenting audiences in ways that recreate all the usual stereotypes and re-marginalizing traditionally marginalized communities) and this on “rural virtual redlining” (how allowing prioritization further isolates rural and exacerbates the digital divide).

As you can see from the pathetic hit counts if you click through, my personal contributions are a total flop. Why? Because, in my own words, 5 Minutes with Harold Feld takes “insanely complicated and incredibly boring stuff and make it slightly less boring because THIS STUFF IS IMPORTANT.” So even at my most wildly successful, I am only slightly less boring. This apparently does not help much.

However, lots of much more interesting and entertaining people have used the power of online video — and even traditional media — to provide a much less boring perspective. I’m listing my top 5 Internet videos below the break. Please feel free to add links to your favorites in the comment section, assuming you did not fall asleep trying to watch my videos.

Actually interesting Net Neutrality videos below . . .

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Also posted in Censorship Public and Private, How Democracy Works, Or Doesn't, International, Series of Tubes, Tales of the Sausage Factory | Tagged , | Comments closed
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