I’ve decided that we should have a business with a limited number of licenses to conduct the business. All the people who got their licenses for free previously will, of course, be allowed to keep them. But now they can sell them as well. When we (very rarely) make more licenses available, we will sell them at public auction because, as we all know, auctions put the scarce resource in the hands of those who will use it for its highest, best use.” Letting people simply have free access would lead to wastefulness, inefficiency and devalue the resource.
Besides, by limiting the number of licenses and auctioning them off, we the government can make a lot of money without raising taxes. True, you can argue that by artificially limiting the number of licenses to make them valuable we are essentially creating a tax on the ability to do the business — we just collect it all up front. But we don’t like that argument so we will ignore it because “auctions put the resource to its highest best use” and if it is valuable, people ought to pay for it.
No, I’m not talking about spectrum. I’m talking about taxi cabs. State and local governments license taxi cabs. This creates an artificial scarcity. As a result, as anyone who owns a Taxi medallion will tell you, they are extremely valuable. And, as one might expect, the taxi cabs that benefit from this scarcity (and the states and localities that benefit from this scarcity) are less than happy at the thought of a new competitor, like Uber or Lyft, offering a competing service. It is a windfall to these guys to allow them to offer for free what we need to acquire — either at auction or in the secondary market — for money. If they want to compete, say the taxi cabs who have medallions, let the new entrants get medallions like us. When they become available.
OK, I was talking about taxi cabs, but y’all see where this is going right?
More below . . .
For those following the debate around whether to classify broadband access service as a “Title II” telecommunications service under the Communications Act of 1934, you may have heard about a thing called “forbearance.” For those unfamiliar with telecom law lingo, “forbearance” refers to a special magic power that Congress gave the FCC as part of the Telecommunications Act of 1996 — the major edit/update Congress did almost 20 years ago. The 1996 Act added Section 10 (now codified at 47 U.S.C. 160) which gives the FCC the power to say “you know that specific provision of law that Congress passed? We decide it really doesn’t make sense for us to enforce it in some particular case, so we will “forbear” (hence the term ‘forbearance’) from enforcing it.” Or, as the D.C. Circuit explained in a case called Orloff v. Federal Communications Commission, once the FCC invokes forbearance and decides to forbear from a particular statute, the statute for all practical purposes disappears.
For those familiar with the argument, you will also know that the anti-Net Neutrality camp argues that getting the FCC to forbear from any rule is such a horribly complicated and detailed market-by-market analysis that the FCC couldn’t possibly grant the kind of broad, nationwide forbearance we would need to make Title II workable. As someone who actually lived through the 8 years of the Bush Administration and saw almost every single pro-competition provision of the 1996 Act stripped away by forbearance proceedings, I can only say “hah, I wish.”
Anyone who actually troubles to look up cases like Earthlink v. FCC or Ad Hoc Telecommunications Users Committee v. FCC, or a bunch of other FCC and DC Circuit cases that are not that hard to find, you will discover that Forbearance is so easy it makes a consumer protection and rule of law guy like me want to puke. Srsly, the standards on this are so low, and so deferential to the FCC, that if Chairman Wheeler stands up at an open meeting and chants “Broadband is great, competition is good, be deregulated like you should. All in favor say ‘aye!'” — and then at least two other Commissioners vote yes — the DC Circuit will affirm it. Heck, according to ATT, Inc. v. FCC, you can even forbear as against potential obligations that don’t even exist yet.
Not that I expect mere facts to alter firmly held opinions that have become factesque. What Paul Krugman has termed the Very Serious People of telecom have all decided that Title II is a terrible onerous thing and that forbearance is just not going to make it work — despite the fact that the stupid cell phone you’re using couldn’t even have existed if Congress hadn’t made it Title II in 1993 by adding Section 332(c) of the Communications Act and the only non-Title II service we have other than broadband access — cable service — is widely regarded a monopolistic nightmare with all the innovating power of a fossilized brick. But the lawyer and eternal optimist in me keeps trying. So I unpack all this below — with lots of quotes because I know most of y’all not gonna actually click through to the cases.
Besides, I do a My Little Pony (MLP) mashup below because “Broadband is magic!” And that always cracks me up. . . .
Almost exactly two years ago, I wrote a blog post called “The Supreme Court Does Not Want To Revisit Constitutionality of Broadcast or Cable Regulation. Get OVer It and Get On With Your Lives.” I bring this up because yesterday the Supreme Court rejected without comment what some commentators saw as the most likely vehicle for such a challenge, Minority Television Project v. FCC.
Not only did Minority Television Project provide the opportunity to overrule Red Lion and abolish all those pesky ownership limits and public interest obligations, it framed this as an opportunity to further expand Citizens United. How could the majority possibly resist, especially given the groupthink that the Supreme Court is simply lusting to overturn Red Lion and totally deregulate the broadcast industry at the first opportunity? And yet, somehow, they resisted. The FCC’s authority to impose broadcast ownership limits (and other spectrum ownership limits for that matter) remains not only intact, but subject to the lenient “rational basis” standard of scrutiny.
Nevertheless the groupthink that Red Lion and Turner Broadcasting are either already dead, or very sick and going to die, remains impenetrable. It has become the classic case of the self-fulfilling prophecy. except for stuff around the edges like the non-commercial set aside at issue in this case. To borrow from Stephen Colbert, the argument that Supreme Court has overruled Red Lion (and Turner Broadcasting) and therefore we should all ignore it doesn’t need facts; it has become “factesque.”
I unpack this below for those who don’t live and breathe this stuff.
I do not expect folks to be models of consistency, or to give up on arguments and talking points they have memorized. I also readily agree that a lot of times the same set of facts or a particular statute or set of cases can lend itself to multiple interpretations. but at some point — unless you are either a religious fanatic or deliberately disingenuous — you have a responsibility to admit that the courts disagree with you (at least when talking about law stuff).
For example, as I wrote after the oral argument in the Net Neutrality case (aka Verizon v. FCC) I think Judge Tatel and his fellow jurist are completely and utterly wrong on their interpretation of the supposed “common carrier prohibition” that prevents the FCC from banning paid prioritization entirely (as long as it is a Title I information service). I wish the FCC had appealed this to the Surpreme Court. But they didn’t. I wish the recent 10th Circuit case affirming the FCC on Intercarrier Compensation Reform had addressed this question and created a circuit split to take up to the Supreme Court. But they didn’t. So I’m stuck saying “I think this is stupid and totally contrary to the statute and Judge Tatel just made it up, but it’s the law until the Supreme Court says otherwise.”
I bring this up because, as John Oliver recently told everyone, the FCC has (to use Chairman Wheeler’s words) decided to “accept” the “invitation” of the D.C. Circuit to write new network neutrality rules based on the Court’s opinion in Verizon v. FCC. That means we will play this case as the ground rules. So any arguments the D.C. Circuit already resolved are now decided as a matter of law. But whereas I — dumb lawyer that I am — accept that I am stuck with whatever ignorant, idiotic or just plain wrong thing the two-judge majority voted for, a lot of other people don’t. They go on spouting the same arguments that the D.C. Circuit already rejected AS IF NOTHING HAD HAPPENED while simultaneously arguing that since the D.C. Circuit struck down the network neutrality rules (which is not, in fact, what the court did), the FCC has no authority to make network neutrality rules (which is the complete opposite of what the court actually said.
I go through my list of “Zombie Anti-Net Neutrality Arguments The D.C. Circuit Already Killed Deaded Than A Dead Man On Dead Day In Deadville” below . . .
Often in policy debates I find myself facing a broad general statement, such as “Wireless is just as good for everyone as wireline, just look at how the market has adopted it.” Or “ISPs would never block or degrade service because they would lose customers.” Point to a counter example, e.g., “Verizon’s effort to replace wireline with Voicelink on Fire Island was a total flop” or “But Comcast, AT&T, Verizon and other ISPs have deliberately allowed Netflix quality to degrade as a negotiating strategy” and the response is invariably “Oh, that’s just an anecdote and you can’t base rules on anecdotal evidence.”
Oddly, this throws most people into a tizzy of confusion because (a) they vaguely remember learning something about anecdotes not being proof or something; (b) everyone always says anecdotes aren’t proof; but (c) the general statement is clearly false based on real world experience. People know that “it’s only an anecdote, therefore it doesn’t count” is a bull$#@! answer, but they can’t explain why. Hence confusion and much bull$#@! going unchallenged in policy.
In logic, we refer to this as “The Problem of the Black Swan.” No, this has nothing to do with the somewhat racy but very artsy so that makes it OK movie starring Natalie Portman. And, while it is the inspiration for the book by Nassim Nicholas Taleb, it actually means something different. “The Problem of the Black Swan” is a demonstration of the problem of reasoning by induction and falsifiabilty. You cannot prove all swans are white just by finding a white swan, but you can disprove all swans are white by finding a single black swan.
While I don’t normally use this blog to teach Logic 101 type stuff, application (and misapplication) of the “Problem of the Black Swan” comes up so often that I will delve into this below. By the time we’re done, you will be able to explain to people who pull that “oh, an anecdote isn’t evidence” crap exactly why they are wrong. You’ll also be able to apply the “anecdote rule” properly so that you don’t get caught in any embarrassing errors.
Elucidation below . . .
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 . . .
So, part of my weekend was spent addressing the aforementioned spam issue. Turns out we’re not the only ones getting this same spam influx: this guy is getting it, too, and he links to another site. As the spam tidal wave rolled in, I realized that this was a massive spam operation. The IP’s are from all around the world, bot just China and Venezuela. There are also hits from legitimate ISPs and hosting companies, not just the fly-by-night places well known for tolerating spam. Someone has themselves a huge-ass botnet.
Fortunately, a bit of Googling turned up a solution to at least reduce if not totally stem the tide. This post over at RTCXpression explains how to block spammers from commenting based on their country code. Since most of the spam was coming from a few countries we’d never imagine would be posting real comments here, that seemed perfect. You can also specify a separate list of IP ranges to block, and the auto included his blocklist. That list mainly consists of Web hosting and virtual server companies, which generally won’t be posting comments to a blog. This solution is faster than some WordPress plugin. It also works with the web server we’re running. Most of the WordPress plugins rely on features found in the Apache web server (which most sites use).
The solution isn’t perfect, simply because of the breadth of the botnet that has been assembled to advertise various craptastic products. Servers that aren;t on the blacklist and aren’t in one of the banned countries are still popping in to drop a load of spam. But now it’s along the lines of 3-4 posts per day, rather than 80-90.
We’re in the crosshairs of a very aggressive comment spammer. Last night, I noticed we had 800+ spam comments in our comment spam queue, which had accumulated in a week or so. I’ve set up a bunch of WordPress plugins to spot fake comments and filter them out. Usually, we get less than 5 spams in a busy spam week, and many weeks it’s 0. I cleared it out only to find 90 more spams in the spam folder this morning.
Of those nearly 1000 spams, precisely 1 made it through the spam filters and showed up attached to a post. So, that a success rate of 0.01%. I think that pretty much qualifies as an epic fail on the spammer’s part.
Even before Chairman Tom Wheeler proposed to issue a Notice of Proposed Rulemaking (NPRM) on possible new net neutrality rules to replace the ones vacated by the D.C. Cir. the May 15 Open Meeting of the Federal Communications Commission (FCC) promised to be one of the more important meetings in recent memory. As a result, it has become one of the more contentious in recent memory as well.
In addition to the net neutrality NPRM, we have an Order deciding key issues for the upcoming incentive auction (aka the 600 MHz auction, aka that really complicated thing where we pay broadcasters to get off spectrum they got for free by simultaneously selling it to wireless companies for mobile broadband). This mega item has two fairly important side pieces from my perspective: the future of unlicensed use in the TV broadcast bands (aka the TV white spaces (TVWS) aka “super wifi” aka “engineers will never be allowed to name anything ever again”) and possible limits on how much spectrum any one company can acquire (aka the “no piggies rule” aka spectrum aggregation policies aka “lawyers are not allowed to name anything ever again either”). The TVWS item has its own satellite proceeding about wireless microphones and coexistence between wireless mics and unlicensed use in an ever shrinking broadcast band.
So for those of you first timers, and those of you who have gone so long without a contentious FCC meeting you’ve forgotten how it’s done, I’ve prepared this helpful guide on “what is an open FCC meeting and how does it work.”
Mechanics of the meeting below . . .
Posted in Life In The Sausage Factory, Series of Tubes, Spectrum, Tales of the Sausage Factory
Tagged 600 MHz Auction, fcc, federal communications commission, Incentive Auction, net neutrality, network neutrality, spectrum, Tom Wheeler, unlicensed spectrum tv white space