Tales of the Sausage Factory

Will Genachowski Help Obama Find A Heart, Brain and Courage To Face Glenn Beck and His Army of Flying Monkeys Flinging Poo?

There are several rather astounding things about the current campaign of Glenn Beck against various Administration appointees. Most astounding, however, has been the Obama Administration reaction to date: quick capitulation in the face of relatively small pressure. Indeed, one of the reasons there was so little initial defense of Van Jones in progressive circles was because most of us were unaware of the attack until the Van Jone’s “resignation.” As compared to previous campaigns in the Clinton years or Bush years to oust various officials, pressure to fire Van Jones had not even approached noticeable, let alone “scary.” Indeed, I am sufficiently cynical wrt the DLC/Rahm Emmanuel faction of the Ds that I cannot help but wonder if the Beck-led anti-Jones campaign was merely a convenient excuse for pushing out a smart and effective progressive.

But whatever the reason, the Van Jones firing proved a major strategic blunder. It infuriated the Netroots and younger civil rights constituencies, who felt betrayed, and it emboldened Beck and his following to seek new “kills.” It also demonstrated the truth of Feld’s Rule of Political Power: “Your political power is directly related to your perceived ability to cause pain.” Within a week, Beck was claiming another kill in the form of Yosi Seargant at National Endowment for the Arts, prompting talk of an unstoppable McCarthy-esque crusade (or campaign of freedom, depending on your political perspective).

Among the latest targets of Beck and his followers is Mark Lloyd. I’ve known Mark for some years and consider him friend, so I am hardly the most impartial of defenders here. Besides, my Public Knowledge colleague Art Brodsky and others have written strong personal defenses of Mark and debunked the charges against him as well or better than I could. Nor is my purpose here merely to fulfill my Biblical obligation not to suffer “a tale bearer among thy people, nor stand by the blood of thy neighbor” (Lev. 19:16) by re-iterating the defense of Mark Lloyd.

Rather, I note this is a splendid opportunity for Genachowski to save Obama’s tuchus by showing that you do much better standing up for your own people than caving (one of the few lessons Obama could stand to learn from Bush). Whether the Van Jones “resignation” came from heartless political infighting from the DLC faction, brainless failure to consider the natural consequences, or simply lack of political courage, Genachowski has the opportunity to give the Administration a heart and a brain and — what it appears to need most these days — courage. Because, as the far too lengthy an wonky analysis below shows, this ain’t the 1990s anymore, and the best overall political strategy is to take a page from the Bush Administration and stand firmly with the base by telling these guys to bugger off.

More below . . . .

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Tales of the Sausage Factory

What We Learn From the VZ-Frontier Deal

Verizon is selling 5 million access lines to Frontier. I expect the deal will go through — after all, a dominant carrier is getting smaller, there is no place where VZ and Frontier compete, etc., etc. What makes the deal interesting is what it tells us about the problem of relying on ILEC/Cable competition to drive broadband. Briefly, (a) we will be perpetually without fiber in a lot of places if we are going to wait for cable and ILECs to meet our needs; and (b) the real problem for is not just the high cost of deployment, but the need to show high rates of return to keep Wall St. happy. It is this latter that will keep telecom policy a very unhappy and complicated place unless we get out of our usual silos and start thinking about some holistic solutions.

More below . . . .

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Tales of the Sausage Factory

The Comcast Bandwidth Cap — Blame Florida (and lack of competition and refusal to upgrade).

As all the world knows by now (the world that follows this anyway) Comcast has imposed a new bandwidth cap, limiting downloads to 250 GB/Month. Unsurprisingly, some folks blame the FCC’s recent decision on prohibiting Comcast from blocking BitTorrent and other p2p applications as pushing Comcast to make this change, although Comcast itself has repeatedly stressed that it was not compelled to do this and planned to do this anyway so no biggie.

What the world did not know, but I thank PK’s Art Brodsky for finding, is that Comcast agreed to clarify its cap as part of a settlement with the Florida Attorney General’s office. As some of us have observed for awhile now, Comcast long had a policy of cutting off “bandwidth hogs” for exceeding a capacity cap while refusing to say what the actual capacity cap was. Well, on July 29, Comcast agreed to make clear their capacity cap and pay $150K in fines.

I highly recommend reading the full terms of the settlement — particularly the factual background which Comcast has agreed is true (without, of course, admitting wrongdoing). Of greatest import, until it announced the 250 GB/month cap, Comcast did not have an actual hard and fast cap. Rather, according to Paragraph 5 of the factual stipulations, Comcast simply knocked off the highest 1000 users regardless of their actual bandwidth usage or geographic location. Comcast is almost certainly telling the truth when it says the highest 1000 users were atypically intense bandwidth consumers. duh. Of course the top 1000 out of 14.4 million will be at the high end of the curve.

No, the more interesting question is what the hell kind of a system is it where Comcast simply goes after the top 1000 users no matter how much they actually use, and why Comcast would adopt such a policy if it wants to reasonably manage network congestion? It seems rather . . . inefficient and arbitrary. Unless, of course, one is trying to save money running a crappy network and generally discourage high-bandwidth use.

Apparently, the Florida Attorney General also thought a policy that simply shut off the top 1000 users every month regardless of actual use or congestion did not meet proper standards of consumer protection or “reasonable network management.” The settlement requires Comcast to state clearly what it means by “excessive use of capacity” in its acceptable use policy (AUP). That’s it (as well as paying $50K for attorneys fees and other associated expenses to the AG for bring this action). Comcast has total discretion to set a limit or have a limit or change a limit, as long as there is (a) an actual fixed limit, and (b) Comcast clearly communicates to its subscribers what that limit actually is. This is in line with the settlement reached last year between Verizon Wireless and the NY AG’s office that Verizon would no longer advertise its wireless internet access package as “unlimited” but would provide a hard monthly cap.

Which explains why Comcast is not going around telling the world that it adopted bandwidth caps because of the big bad awful FCC and their wicked regulatory ways. They didn’t. Rather, Comcast was using an even more ridiculous bandwidth cap the entire time, and they were required as a matter of consumer protection law in Florida to actually come clean with a real number so customers can find out what they are paying for and get full value for their monthly subscriber fee. It seems Comcast has sense enough not to play those kinds of games on something so easily verifiable. Good for them. Nice to see they learn from experience.

Stay tuned . . . .

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Tales of the Sausage Factory

Assessing the 700 MHz Order Part II: “C” Does Not stand For “Crap;” Why the Wireless Carterfone Condition Is A Big Win.

Few things in the last few days have generated more discussion and overall pessimism in the Order than the C Block “wireless Carterfone” or “network attachment” conditions. “A tease,” says Art Brodsky. “Crippled by loopholes,” opines Susan Crawford.

“Not so fast!” Says yr hmbl obdnt blogger. In point of fact, there is a a hell of a lot here to like in the C Block conditions. Not just for trying to get actual devices attached, but in terms of FCC precedent and broader spectrum policy. This is an “Eyes on the Prize” moment, similar to the preliminary decisions that culminated in Brown v. Board of Education. We did not win the grand prize, but we got a lot good precedent for future spectrum reform.

Further, as I explain below, I do not think the conditions the FCC imposed here are meaningless. To the contrary, I think the rules are about as aggressive as possible to draft (as I worked hard with Commissioner Adelstein and his staff to think of anything I could possibly add to them). But at the end of the day, what matters is the political will. If the next FCC (which will be the FCC that enforces this) wants to give these license conditions meaning, it has the tools to do so. If a future FCC wants to make this meaningless, then there is nothing we can do no matter how well we draft things.

And I will add that if anyone has some better ideas on what to put in as rules, they should certainly file Petitions for Reconsideration

My analysis of why the C Block conditions do matter below . . . .

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Tales of the Sausage Factory

RIAA v. XM — Hard Cases and Clueless Judges Make for a Dangerous Mix

[Update: I’m aware the Audio Home Recording Act does not apply to video recordings. See my more detailed update here]

It’s an old cliche in Lawland that “hard cases make bad law.” To which I will now add: “and when you throw in clueless judges, the mix becomes positively toxic.”

Case in point, the recent decision by Judge Deborah Batts to deny XM Radio’s motion to dismiss a lawsuit by the RIAA for copyright violation. This case turns on the rather difficult interplay between the sections of the Copyright Act that provide a license for satellite radio, the immunity granted to equipment manufacturers under the 1992 Audio Home Recording Act, and the nature of the service offered by XM. It doesn’t help that, at the “motion to dismiss” phase, we gave the complainant (here the RIAA) the benefit of every doubt. To win, XM Radio would need to persuade Judge Batts that there is no set of provable facts under which the RIAA has a case.

Contrary to some of my colleagues (such as the eloquent and brilliant Art Brodsky in this post on the Public Knowledge website), I don’t think this was a slam dunk for XM. I actually think there is a complicated legal question here that needs to go forward for further analysis. That’s why I’m hiding over here on Sausage Factory for this one (if you check the Technorati rating for PK v. that for TotSF — you’ll understand what I mean by “hiding”).

Unfortunately, the language of Judge Batts opinion has — IMO — really, really, really bollixed things up badly. It calls to mind the awful results driven analysis in Jews for Jesus v. Brodsky when judges didn’t know squat about the internet and domain names, but sure knew they didn’t like these evil “cybersquatters” and boy were they gonna show ’em a lesson! The devil with the actual law or understanding the technology — we got us a heapin’ gavel of JUSTICE to whack you’re ass!

Batts opinion reads rather the same way J4J did. She doesn’t understand the technology and doesn’t feel any need to do so. All that matters is that someone seems to be making money that she thinks should go to the music mafia instead, and by God is she gonna get ’em! So she fixes on the wrong details and creates potential havoc for the likes of Tivo or anyone else making a PVR integrated into a receiver that picks up a subscription video or audio service.

The real issue in the RIAA v. XM case, and where Batts goes horribly, tragically, gut-churningly wrong, below….

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Tales of the Sausage Factory

Blog Tagged by Susan Crawford

On Live Journal, we’d call this a meme. I usually don’t play, but how can I resist an invitation from Susan Crawford? In addition to running a fantastic and informative blog of her own, Susan is a member of the Board of Directors at ICANN and on the faculty of Cardozo Law School (Official motto: “With This Many Jews, How Did We Rank So Low In U.S. News & World Report? Goyishe Kop!”)

In any event, Susan has tagged me with the following meme:

“Post five things most people don’t know about you, and then tag five more people.”

I tag Sascha Meinrath, Esme Vos, David Isenberg, Tim Karr and Art Brodsky. My answers below.

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Tales of the Sausage Factory

Latest AT&T/BS Merger Twist, and Why Bill Kennard Case is Different from Robert McDowell’s

In the latest chapter of the FCC’s most gripping “telecomnovella” Death Star Reborn: The AT&T/BellSouth Merger, FCC Chairman Kevin Martin has set in motion the process to get 3rd Republican Commissioner Robert McDowell “unrecused”. The FCC has been deadlocked 2-2 because Commissioner McDowell used to represent CompTel, one of the groups opposing the merger, creating a conflict of interest. (You can see my previous coverage explaining all this here.)

McDowell, while not champing at the bit to be unrecused, has announced he’s ready to serve if the FCC’s General Counsel tells him he has to vote to break the deadlock. So it becomes possible to get this done before the new Congress takes over. Although why this should be such a big deal is beyond me, since it’s not like Congress can directly interfere with FCC merger review, and the indirect threats for payback are already on the table.

Martin, conscious of the controversial nature of the move, wrote a letter to the Chairs and ranking members of the Senate and House Commerce Committees explaining the need for such extraordinary action. In doing so, Martin observed that the FCC General Counsel had previously authorized former FCC Chairman William E. Kennard to break a 2-2 deadlock despite Kennard’s previous recusal.

Now some months back, when folks first started wondering about the “McDowell Option,” I opined that while the FCC General Counsel could force McDowell to vote, such a move would be “extraordinary” and “To the best of my knowledge, it has never happened.” So what’s all this about Kennard then?

Art Brodsky does an excellent job explaining why the Kennard situation was radically different. But, my honor being involved and all, I decided to dig a bit deeper. As explained below, the facts on the Kennard case were so bizzare and different (starting with the fact that Kennard had not been legally required to recuse himself in the first place but had done so, in his own words “out of an abundance of caution”), that I still think my original statement stands and that, if the FCC unrecuses McDowell, and requires him to vote, it’s really breaking new ground.

More detail than you could possibly want (including a timeline and relevant quotes from Kennard’s public statement in 2000 on unrecusing himself) below….

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Tales of the Sausage Factory

Donna Edwards v. Al Wynn: A Microcosm in More Ways Than One

Art Brodsky has written an excellent blog post at TPMCafe on how progressive lawyer Donna Edwards’ demorcatic primary challenge for incumbent democrat Al Wynn’s seat has gone virtually unnoticed in the press.

Like the much better covered competition between incumbent Joe Leiberman and challenger Ned Lamont, the Edwards/Wynn race pits frustrated progressive democrats against a multi-term incumbent they feel has become too much a part of the system. But for all the coverage of the challenge to Senator Joe Leiberman up in Connecticut, no one in my local media has seen fit to cover exactly the same sort of challenge right here in our own backyard.

This makes the Edwards/Wynn race much more a microcosm for elections around the country. We bemoan the high rate of incumbent reelection, but fail to notice the local media plays in all this. Not by exhibiting famed media bias, but by refusing to cover local races, denying challengers an opportunity to discuss issues with the electorate and denying challengers the exposure they need to overcome the enormous advantage an incumbent has in name recognition and organization.

Contrary to popular belief, we really can do something to give challengers like Donna Edwards a fighting chance to get the exposure they need to make incumbents actively defend their seats and worry about being accountable to voters every two years. The FCC has siting in front of it a rulemaking that would give candidates free air time and force broadcasters to provide substantive coverage of local news.

At the same time, the FCC also has in front of it proposals that would make the situation for political challengers even more difficult. If the Republican majority on the FCC succeeds in relaxing the media ownership rules and allows the same company to own a daily paper, up to three television stations, the local cable system, and radio stations all in the same market, that company decides who gets exposure and who disappears from view. The odds may be bad for challengers now, but they could indeed be much worse.

Details below.

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