The mechanics of how Washington works

Cable Set-Top Box Arguments: Nothing But Reruns

It is inevitable that right before a major filing on an issue that the cable guys HATE!!! with all the passion of an injured monopolist, the we see a flurry of distracting nonsense designed to fuzzle the FCC, generate bad trade press, stoke the wholly-owned subsidiaries in Congress, and provide more material for the chanting cheerleader chorus. You may remember this from 2014’s: “Net Neutrality — The FCC Is Totally Gonna Lose On Banning Paid Prioritization,” and its 2015 Sequel: “No Wait, We Were Totally Lying Last Time, Banning Paid Prioritization is Cool But The FCC Is Totally Gonna Lose on Title II.”

 

Meanwhile, Comcast steps up with some “deal” that supposedly totally solves the problem they say doesn’t exist anyway so now there is no reason to do anything. In net neutrality, that was “look, we cut a deal with Netflix so you don’t need that silly old net neutrality.”

 

So it is no surprise that in 2016 we see another rerun. With comments on the FCC’s wildly popular (outside the Beltway) #unlockthebox rulemaking going on, aka the “Expanding Consumer’s Video Navigation Choices” proceeding due tomorrow, the cable industry has run true to form. Yesterday, Comcast announced it would make an ap available to Roku to let consumers stream Comcast content (under Comcast’s licensing terms, subject to Comcast control, and only to those Comcast finds sufficiently non-threatening). The fact that Comcast was messing around with the HBO Go ap on Playstation just last year  has not stopped the usual chorus of useful idiots from chanting hosannah’s of praise and declaring the problem solved. (Hopefully I will get to deal with everything wrong with the ap approach in a future post. But the short version is: “swapping one thing Comcast controls for something else Comcast controls is not “solving the problem.”)

 

But perhaps more importantly, we now come to the inevitable second act of this  well worn cable rerun. The press call headed by NCTA CEO Michael Powell with a panel of high power corporate lawyers who will trot out the same arguments they always do on why the FCC is totally gonna lose. I am eternally mystified why anyone takes this seriously because Duh, what else do you expect the cable guys to say? “Oh yeah, we don’t have a legal leg to stand on and the FCC is totally going to win. Damn, I knew I shouldn’t have drunk that bottle labeled Veritaserum!”

Nevertheless, for some reason, pronouncements by lawyers paid to make such pronouncements seem to have some mind clouding effect which not only makes people forget all the previous times these people have made exactly the same prediction, but forget the actual FCC detailed refutation of these arguments in the notice of proposed rulemaking. So once again, we here at Tales of the Sausage Factory will play the part of the annoying little dog exposing the man behind the curtain while everyone else trembles at the Great and Powerful Oz — played here by NCTA CEO Michael Powell.

 

Curtain pulled back bellow . . .

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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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What You Need To Know To Understand The FCC National Broadband Report.

The FCC is required by Congress to do lots of reports. Of these, the one that gets the most attention is the annual Report on broadband deployment under Section 706 of the 1996 Telecommunications Act (47 C.F.R. 1302). Sure enough, with the latest report announced as up for a vote at the FCC’s January open meeting, we can see the usual suspects gathering to complain that the FCC has “rigged the game” or “moved the goal post” or whatever sports metaphor comes to mind to accuse the FCC of diddling the numbers for the express purpose of coming up with a negative finding, i.e. That “advanced telecommunications capability” (generally defined as wicked fast broadband) is not being deployed in a timely fashion to all Americans.

 

As usual, to really understand what the FCC is doing, and whether or not they are actually doing the job Congress directed, it helps to have some background on the now 20 year old story of “Section 706,” and what the heck this report is supposed to do, and why we are here. At a minimum, it helps to read the bloody statute before accusing the FCC of a put up job.

 

The short version of this is that, because between 1998 and 2008 the FCC left the definition of “broadband” untouched at 200 kbps, Congress directed the FCC in the Broadband Data Improvement Act of 2008 (BDIA) (signed by President Bush, btw) to actually do some work, raise the numbers to reflect changing needs, and take into account international comparisons so as to keep us competitive with the world and stuff. This is why, contrary to what some folks seem to think, it is much more relevant that the EU has set a goal of 100% subscription of 30 mbps down or better by 2020 than what is the minimum speed to get Netflix.

 

Also, the idea that the FCC needs a negative finding to regulate broadband flies in the face of reality. Under the Verizon v. FCC decision finding that Section 706 is an independent source of FCC authority to regulate broadband, the FCC gets to regulate under Section 706(a) (general duty to encourage broadband deployment) without making a negative finding under Section 706(b) (requirement to do annual report on whether broadband is being deployed to all Americans in a “reasonable and timely manner”).

 

So why does the FCC do this report every year if they already have regulatory authority over broadband. Because Congress told them to do a real report every year. This is what I mean about reading the actual statute first before making ridiculous claims about FCC motivation. Happily, for those who don’t have several years of law school and are ld enough to have actually lived through this professionally, you have this delightful blog to give you the Thug Notes version.

 

 

More below . . . .

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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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My Insanely Long Field Guide To the LTEU Dust-Up Part II: A Storm of Spectrum Swords.

 

The Vorlons have a saying: “Understanding is a 3-edged sword.” In this case, the three edges are the Wi-Fi dependent, the LTE dependent, and the Federal Communications Commission (FCC).

 

Last time on Spectrum Game of Thrones (hereinafter “SGoT”) I spent 6500 words discussing the first two edges of the sword. The Wi-Fi dependent side has strong reason to suspect the LTE-U crowd of either reckless indifference or actual malice toward deployment of Wi-Fi based streaming services in the newly refurbished U-NII-1 band up in 5 GHz. Even if the Wi-Fi Dependents could trust the motives of the LTE-U crowd, what happens if everyone is wrong about the ability of the two technologies to co-exist? Under the current structure, the Wi-Fi dependents would be screwed, and they could do nothing about it. So the rational Wi-Fi Dependent must fight tooth and nail against deployment of LTE-U.

 

It doesn’t help that the Wi-Fi Dependents know that this is an utterly impractical solution for the long term. Unless there is a way to answer the two questions central to the survival of Wi-Fi streaming in U-NII-1 in the face of LTE-U (what happens if something goes wrong, what happens if somebody deliberately does something bad post-deployment), rational Wi-Fi dependents have no choice but to fight deployment.

 

The LTE-U crowd, for its part, has good reason to want to deploy LTE-U and has a legitimate gripe that Wi-Fi Dependents cannot keep saying no without defining the conditions for yes. If we admit the possibility that we can deploy LTE-U consistent with reasonable use of Wi-Fi (which everyone does), then there has to be some way to actually deploy it. And while I savor the fine irony of seeing licensees in the same position I have been in countless times, it is still crappy policy. Also, unlike me and other would-be new entrants, the wireless guys and Qualcomm have enough political muscle to make the current stalemate untenable. Eventually, they will get to deploy something.

 

Which brings us to the third edge of the Vorlon sword of understanding – the FCC. As I shall explain below, government actually is the solution here. Not by imposing a standard or a rule, but by providing both sides with a process for resolving the problem. As a happy side effect, this will also help resolve the general class of problems that keeps coming up on how to manage more and more intense use of the airwaves. Just like we all learned in high school math, and most of us forgot about 30 seconds after the exam, you solve an intractable problem by trying to break it up and simplify it into solvable problems.

 

The only problem is, and I know most people are not going to believe me, the FCC actually hates asserting and clarifying its authority. Yes. Really. Which gives rise to the question of whether the FCC actually has the willingness to do what needs to be done and create a general solution, or if they will continue to try to do the minimum possible, what I call the “Snow Goons Are Bad News” approach immortalized in this classic Calvin and Hobbes strip.

 

So, as we get to SGoT 2: Storm of Spectrum Swords, we come to another dramatic turning point. Will the Wi-Fi Dependents and the LTE-U Dependents see the wisdom of allowing the FCC assert authority over the land of Spectrumos? Can the FCC be persuaded to fulfill its destiny and its duty? And will the anti-Regulatory Zombies from beyond the Wall crash the party and devour both Wi-Fi and LTE-U because of their hatred of the FCC?

 

More below . . .

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My Insanely Long Field Guide To The LTE-U Dust Up. Part I: Spectrum Game of Thrones.

I keep reading about the LTE-U/LAA dust up and deciding that, as I predicted back in January, this has become the epic Spectrum Game of Thrones. Which means it’s time for an epically long series of Insanely Long Blog Posts.

 

For those just tuning in, I can sum up this issue as follows: should we worry that wireless carriers are looking to deploy a protocol developed for the 4G licensed world (LTE, or Long-Term Evolution) over unlicensed spectrum (called “LTE-U” for LTE over unlicensed or “Licensed Assisted Access,” for reasons I explain later) will “kill” Wi-Fi — for various values of the word “kill.” You can read some stuff on this from my Public Knowledge colleagues here and here.

 

Let me give you the headline version:

 

  • Can you build a version of LTE-U that plays nicely with Wi-Fi? Yes!
  • Can you build a version of LTE-U that looks like it should play nicely but when you deploy it over hundreds of millions of devices it would stomp all over Wi-Fi and crush it flat totally by accident? Absolutely!
  • Can you make and deploy a version of LTE-U where it plays nicely unless the mobile carrier decides it doesn’t like competition from Wi-Fi first providers of rival mobile video and voice services? You bet your sweet patootie!

 

A lot of the argument you see in the press and from the LTE-U supporters has to do with whether the LTE-U Forum (more on them later) have the best interests of wireless users at heart, have gone to great lengths to make sure LTE-U will play nice with Wi-Fi, have released their specs on the LTE-U Forum website, etc. etc. But none of this addresses the points above. What happens if you put this out there and stuff goes bad, either by accident or intentionally.

 

To understand the thinking here, imagine Qualcomm and the rest of the LTE-U Forum are Iran building a nuclear reactor for peaceful purposes. Google and the Cable industry (and us public interest types, for all that anyone notices) are Israel and the Sunni Arab states like Saudi Arabia and Egypt. Iran/LTE-U forum maintains they are building their nuclear programs for peaceful purposes. GOOG/Cable asks how they can be certain, given that the same technology might (a) screw things up accidentally; and, (b) give the carriers the capability to screw things up intentionally, if they ever start to feel the competitive heat. Qualcomm, LTE-U Forum, et al. are shocked, hurt and offended that anyone could even suspect such a thing, despite everything Qualcomm has done in the last 3 years to turn LTE-U into a “Wi-Fi killer”, and despite some of the biggest global carriers telling 3GPP to shut out non-carriers from first generation of LTE over unlicensed. According to Qualcomm, the only reason anyone would question the peaceful intentions of LTE-U Forum is for anticompetitive reasons.

 

But here’s the complicated thing. As I’ll explain below, it’s not like LTE on unlicensed is intrinsically bad. There are lots of really good pro-competitive reasons for carriers to start using LTE on unlicensed. Heck, it may ultimately turn out that a stand alone version of LTE on unlicensed is as useful (or even more useful) than Wi-Fi is today. Who knows? That’s the beauty of the unlicensed band — innovation without permission and all that good stuff.

 

This puts the Federal Communications Commission (FCC) in a rather awkward position. On the one hand, the FCC recognizes the real problem of LTE-U, accidentally or intentionally, messing up Wi-Fi. Additionally, while Wi-Fi is in the unlicensed band and must therefore accept whatever interference comes its way, is only ONE of many, many protocols, etc., you don’t let companies with the obvious incentive to screw up Wi-Fi develop and deploy a potential Wi-Fi killer with no safeguards. But since the success of the unlicensed space comes from its flexibility and easy deployment, how do you not ultimately approve some version of LTE-U/LAA? Are we going to lock in Wi-Fi as the protocol for unlicensed the way LTE is the protocol for mobile wireless? That could be just as awful for the future of innovation as letting LTE-U/LAA trash the place.

 

To make sure all you Tales of the Sausage Factory Readers know what’s going on, I bring you yet another in my occasional “Insanely Long Field Guide” series. Below, I cover everything from a brief refresher on what the heck is “unlicensed spectrum” v. “licensed spectrum,” the history of what’s going on here, and why I focus on Qualcomm rather than the wireless carriers as the chief bad guys here. However, as this is too long even for me, I will need to break this up into two insanely long pieces. In Part 2, I’ll explain about the FCC, why it got involved, why this is so complicated from the FCC’s perspective, and what the FCC can do about it.

 

But first, our insanely long background briefer below . . . .

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Phone Industry To The Poor: “No Privacy For You!”

Back in June, the FCC released a major Order on the Lifeline program. Lifeline, for those not familiar with it by that name, is the federal program started in the Reagan era to make sure poor people could have basic phone service by providing them with a federal subsidy. Congress enshrined Lifeline (along with subsidy programs for rural areas) in 1996 as Section 254 of the Communications Act. While most of the item dealt with a proposal to expand Lifeline to broadband, a portion of the Order dealt with the traditional FCC Lifeline program.

As a result, the wireless industry trade association, CTIA, has asked the FCC to declare that poor people applying for Lifeline have no enforceable privacy protections when they provide things like their social security number, home address, full name, date of birth, and anything else an identity thief would need to make your life miserable. Meanwhile, US Telecom Association, the trade association for landline carriers, has actually sued the FCC for the right to behave utterly irresponsibly with any information poor people turn over about themselves — including the right to sell that information to 3rd parties.

 

Not that the wireless carriers would ever want to do anything like that, of course! As CTIA, USTA, and all their members constantly assure us, protecting customer privacy is a number one priority. Unless, of course, they’re running some secret experiments on tracking without notifying customers that accidentally expose customer information to third parties. Oh, and it might take longer than promised to actually let you opt out once you discover it. And in our lawsuit against the FCC’s Net Neutrality rules, they explicitly cite the inability to use customer information for marketing, the inability to sell this information to third parties, and the requirement to protect this information generally as one of the biggest burdens of classifying broadband as Title II. But other than that, there is no reason to think that CTIA’s members or USTA’s members would fail to respect and protect your privacy.

 

So how did the Lifeline Reform Order which most people assumed was all about expanding Lifeline to broadband became the vehicle for the phone industry to tell poor people they have no privacy protections when they apply for a federal aid program? I explain below . . .

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New D.C. Circuit Decision Knocks Fairly Large Hole In Anti-Net Neutrality Case.

Every now and then, the D.C. Circuit throws you an interesting little curve ball. This opinion issued last week would appear to knock a serious hole in the argument made by the cable and telcos against the FCC’s reclassification of broadband as a Title II telecom service.

 

The case, Home Care Association of America v. Weil (HCAA) addresses the legal question that takes up about a quarter of the main brief for petitioners: does the Brand X decision that the Telecom Act was “ambiguous” mean that the FCC gets deference under the Chevron Doctrine when it reexamines the question in 2015 and comes out the other way? Or can Petitioners argue that the statute is not ambiguous and explicitly precludes the interpretation the FCC now gives it? Under HCAA, the D.C. Circuit appears to find that once the Supreme Court decides a statute is ambiguous, that settles the question. If the statute was ambiguous for an interpretation in one direction, it is still ambiguous — and thus subject to Chevron deference — when the agency reverses course. Nor does the agency have a higher burden when it reverses course then it did when it first made the decision.

 

Good lawyers can always distinguish cases, of course — as can a conservative panel of the D.C. Cir. that wants to find a particular result. Furthermore, Petitioners have lots of other arguments to make that are not impacted by the HCAA decision. Nevertheless, it seems clear this case is good news for the FCC (and those of us who support the FCC), and Petitioners will no doubt need to spend a good portion of their reply brief explaining why HCAA doesn’t dictate the result here.

 

I explain in more detail 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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First Round of Lawsuits Filed In Net Neutrality Case. Now What?

Yesterday, the U.S. Telecom Association (USTA), the trade association for incumbent telecoms like Verizon and AT&T, and a Texas WISP called Alamo Broadband, filed separate appeals from the FCC’s Order reclassifying broadband as Title II and applying net neutrality rules. (This Ars piece links to both Petitions). USTA filed in the D.C. Circuit, while Alamo filed in the 5th Circuit (which is generally considered one of the more hostile to the FCC).

 

I dig into this a bit, and try to explain what happens next, below . . .

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