Tales of the Sausage Factory

Canada Adopts Comcast/Bitorrent Standard For Network Management

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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Tales of the Sausage Factory

A Brief Nod To Cox For Raising Its Bandwidth Caps

I need some sort of icon or whatever for “while I don’t necessarily like what you’re doing, I like the way you’re doing it.” Last week, that went to Speakeasy for giving excellent notice on its unfortunate decision to block certain phone numbers. This week, my “Tip of My Hat While Wagging My Finger” (yes, the reference Stephen Colbert is obvious) goes Cox Cable and their decision to increase the size of their bandwidth caps (new terms of service here).

I am not happy with bandwidth caps, but don’t have a position yet on regulating them unless they are so obviously limited that they appear designed to protect video revenues and fall into the antitrust/competition zone. I recognize there are advantages and disadvantages to metered pricing. In the short term, it can help bridge the gap where demand for capacity rapidly outpaces available capacity. In the longer term, it works to reduce use and innovation which has negative implications for our economy and overall digital future. It’s also not that clear that there is a good linkage to bandwidth caps and actual capacity limits, and whether bandwidth caps discourage investment in capacity by making it easier and cheaper to cap use rather than build capacity.

Still, if one must have bandwidth caps, then they need periodic review and should get upgraded as “average” use grows and as network operators make needed upgrades. So while I’m not thrilled that Cox has bandwidth caps in the first place, I’m pleased they have now upgraded them. Hopefully Comcast, which has had the same bandwidth capacity cap for a year now, will soon follow suite and upgrade its 250 GB cap.

Stay tuned . . . .

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Tales of the Sausage Factory

A Brief Response To Richard Bennett's New Paper

I salute Richard Bennett’s new paper Designed for Change, in which he traces the engineering history of the end-to-end principle. It is a serious paper and deserving of serious response. Unfortunately, it being right before Yom Kippur and various deadlines, that more serious response will need to come from elsewhere. I can give only a brief, surface response — reality is messy.

OK, too brief. A bit more elaboration. Richard Bennett is eminently qualified to write the technical history and draw engineering conclusions. As are a large number of other folks who take very different views on the issue of net neutrality and the virtues of end-to-end (Vint Cerf, David Reed and kc claffy to name a few folk of my acquaintance). The history described by Richard is layered onto an equally rich history of political and economic events which all interweave, and continue to interweave, to create a complex and messy reality in which public policy tries (in my opinion) to set rules to create the strongest likelihood of the best possible outcome.

More below . . . .

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Tales of the Sausage Factory

Will The DC Circuit Pull The Plug On Program Access?

Next week, the D.C. Circuit will hear oral argument on the FCC’s 2007 decision to extended the program access rules another five years. What surprises me is how few people seem to have considered the possibility that the D.C. Circuit will reverse this decision and vacate the rule, as they did last month with the 30% cable horizontal ownership limit.

Part of that is the way people tend to make analysis based on conventional wisdom. “Everyone knows” that without the program access rules, competitive providers would be toast because the largest cable incumbents can control programming, just as “everyone knows” that we don’t need a 30% cable ownership limit because the MVPD market is so wildly competitive that the largest cable incumbents can not possibly influence cable programming. As Comcast and Cablevision pointed out to the DC Circuit, however, the conventional wisdom in this regard is not entirely consistent. If, as the court found last month as a matter of law, the MVPD market is wildly competitive and consumers switch willy-nilly from one to the other rendering it impossible for a cable provider to block a rival programming network from emerging, how on Earth can cable programmers below the 30% limit exercise foreclosure?

There are, of course, sound answers to that in both law and economics, although the biggest single deciding factor is likely to be the absence from the panel of Douglas Ginsburg, a man who believes membership in the Federalist Society substitutes for an actual understanding of economics and has published an academic article yearning for the “good old days” when the courts made economic regulation unconstitutional and concluding that courts should not defer to agency efforts to create “synthetic competition.” (An offense in the eyes of the Gods of the Marketplace.) I believe the panel is Sentelle, Griffith and Kavanaugh, which is not exactly good news for the program access rules but isn’t death on wheels like Ginsburg (or Williams or Edwards). Sentelle and Griffith, who were both on the imaginary competition outweighs real competition decision back in June overturning the FCC’s decision not to grant Verizon a forbearance petition, and Kavanaugh, who was on the cable ownership panel and therefore presumably agrees that switching costs aren’t real and cable operators are in such fear of youtube clips they would never make programming decisions based on affiliation. On the flip side, Kavanaugh actually wrote the somewhat more deferential special access opinion from July. Unfortunately for those who rely on program access, none of the judges who affirmed the Inside Wiring Order are on this panel.

Of course, there is something to be said for actual law and analysis of the underlying FCC Order, even in the D.C. Circuit. So below, I shall provide a brief outline of the program access rules, how we end up in court, the likely arguments, and what happens if the D.C. Cir. overturns the rules (which even I give a low probability to, but do not discount — especially given the panel) — including why that might actually be the best thing to happen to cable regulation in the long run.

More below . . .

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Tales of the Sausage Factory

Comcast Channel Shifts — Looking for info.

I’m getting email about Comcast migrating MSNBC and CNN out of its expanded tier to a higher priced tier while keeping Fox News on expanded tier in a number of markets. If this is actually going on, I’m mightily curious.

Such shifts do not happen casually. They are generally the product of fairly intense negotiations among cable operators and programmers. They also require advance notice to viewers. This makes me extremely reluctant to impute a political motive here. If NBC and Time Warner (the owners of MSNBC and CNN respectively) were being screwed against their will over a political agenda, I would have expected to hear it in DC. What mainstream coverage there is of this suggests it is part of Comcast’s general digital upgrade. So we should expect to see all remaining channels migrated off to the higher priced tier eventually. While that will constitute a significant rate increase, it will put everyone back on equal footing. Besides, as the DC Circuit instructed us all last month, cable operators have no market power and cannot influence the programming market, whatever your personal experience to the contrary may be.

So if anyone has more info on this and would like to either comment below or talk to me, I’d love to hear about it.

I suppose I should add that unless Comcast failed to give proper notice to subscribers before changing their channel line up, their is nothing the FCC can do about it, so don’t bother complaining.

Stay tuned . . .

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My Thoughts Exactly

On the Cultural Significance of “The Cultural Significance of Free Software” : Part one: my review of the book.

In a manner remarkably similar to how my homologue John Compton Sundman was approached by the obscure editors from the Society for Analytical Engines to edit the entries of the inaugural Hofstadter Prize for Machine-Written Narrative (as chronicled in Cheap Complex Devices), I was approached, some five months ago, by the book review editor of the journal “Science as Culture” to write a review of Two Bits: The Cultural Significance of Free Software by Christopher M. Kelty. I agreed to write the review for free. (Why? Because I’m a monkey/amateur –just ask Harlan Ellison).

I think the book, despite its various shortcomings, is good; important, even. It raises significant issues that bear upon (yes, I know how hyperbolic this sounds) whether democracy and the ideals of pan-human equality have any future.

My draft review appears below. At some point, presumably, a version of this review, perhaps considerably revised, will appear in Science as Culture

Funny issues arose regarding copyrights and copylefts of the review itself. I’ll write more about them in a second post.


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Tales of the Sausage Factory

Fragmentation Games: Playstation Gets “Boxeed,” TV Anywhere Gets More Content.

In the latest twist in the broadband fragmentation games driven the overlap of MVPDs and broadband access providers, users of PlayStation 3 can no longer access Hulu. As some may recall, Hulu tried a similar trick with Boxee.tv, resulting in a good old fashioned tech arms race wherein Boxee camouflaged itself as browser and Hulu responded by encrypting html.

Now Hulu has shut off the spigot to Playstation 3. Why? As I noted when Hulu pulled this on Boxee in the spring, the people who make money off the existing video subscription model (both the cable operators like Comcast and the content holders like NBC Universal) really dislike the thought of streaming media actually competing with them. As long as video stayed on the laptop and occasionally stopped to buffer, it didn’t really threaten the established business models. But make it possible to watch streaming media on your regular TV, with a quality practically equal to what you get on cable, and it becomes a very disruptive technology.

Playstation 3 and other game consoles are obvious candidates to disrupt the existing business model. They already plug into your television set, you are very familiar with the controls, and the manufacturers are always expanding the capabilities of the units to make them more “media centers” and less “game centers.” Like Boxee, they represent a real threat by making it possible for me to stream online content effortlessly on my TV and watch in exactly the same way I watch anything else.

Meanwhile, Time Warner and Comcast have found lots of other content networks eager to join the “Entitlement Program.” This initiative appears to be gathering critical mass very rapidly, which is not too surprising. While some of the bigger folks like Disney may hold out to see how they can maximize their return, the midsized players anxious about possible changes to the business model are likely to want to get in while the getting is good.

To conclude, what we have here is not anything obvious or dramatic. It is a few more ripples in the pond, indicating where the big fish swim. Any one of the “fragmentation games” incidents I’ve discussed, for example the ESPN360.com business which has been slowly ratcheting up to include more ISPs, is not necessarily significant on its own. Taken together, however, I see a pattern emerging that tells me where the fun and games will happen over the next few years. Heck, at this point, I’m not even sure what policy prescription I would offer. I just know that I’m seeing a bunch of ripples that might be nothing. Or it might be bunch of salmon and a great place to cast a line. Or it might be a school of piranha and I need to be very careful before wading in.

Stay tuned . . . .

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Tales of the Sausage Factory

D.C. Circuit Affirms Inside Wiring In Fairly Broad Opinion. Terrestrial Loophole Next? And What About Time Warner's TV Anywhere?

While folks in the suburbs sometimes forget this, a lot of people live in what we call “multiple dwelling units” (MDUs) — which is a fancy way to say things like apartment buildings and condos. One of the problems for people trying to switch from one provider to another for cable (for example, from Comcast to RCN) is that a cable operator may already have an exclusive deal with the landlord to provide cable services to everyone in the building. Competitors asked the FCC to ban such practices. In 2003, under Michael Powell, the FCC refused to ban such exclusive deals because “regulation is always bad, mmmmkayyy.” In 2007, as part of Kevin Martin’s attack on cable market power evil vendetta against the helpless cable industry, the FCC reversed this determination and found that under Section 628(b) of the Communications Act (47 U.S.C. 548) it needed to prohibit cable operators from entering into or enforcing such exclusive deals because Verizon can’t sell FIOS w/out being able to offer triple play. Predictably, this was widely denounced by the cable companies and their cheerleaders as not merely unwarranted, but a violation of law and certain to be overturned on appeal.

Turns out, not so much. In fact, in a rather broadly worded opinion, the D.C. Circuit affirmed the 2007 Order. Indeed, the language affirming the decision opens the door to the FCC tackling other cable issues, such as the terrestrial loophole (which Verizon wasted no time in pointing out to the FCC). Mind you, it remains unclear at this point whether the new FCC will have any interest in cable market power or not.

Still, there are a number of important aspects about this case, especially its implications for the FCC to regulate Time Warner’s TV Anywhere strategy, aka “how cable operators plan to preserve their existing business model and fight off Netflix.” I discuss this in more detail below . . . .

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Tales of the Sausage Factory

Comcast & AT&T Apparently Smart Enough To Resist RIAA Invitation to Slit Own Throats.

As I’ve observed before, the IP Mafia have absolutely the worst judgment imaginable when it comes to their agenda. Now, the people who tried to kill the VCR, have just about killed internet radio, and who have sued dead people and sick children, have hit on another winning plan — using ISPs as enforcers.

Once upon a time and long ago, ISPs understood why it was important to be a common carrier and have no liability for this. That was why Congress included Section 230 and the “Good Samaritan” provision in the 1996 Telecom Act. It boils down to “when you act like a dumb pipe and just pass stuff from one place to another, we will not hold you liable for what happens.” For the same reason (as Bob Cannon explains over here on Cybertelecom), Congress generally immunized ISPs and created the whole “notice and take down” scheme in the Digital Millenium Copyright Act.

But all that was before our ISP industry boiled down to a handful of companies that were also either big content producers or video distributors dependent on the good will of big content producers. Suddenly, from the perspective of the IP Mafia, a whole new world of possible backroom dealings opened up. A world in which a few companies could make policies that would cover nearly the entire high-speed access market, and where they either shared common interest with the IP Mafia or could be “persuaded” to do so by threatening to withhold needed video content.

And so, the MPAA and RIAA walked right into my cunning trap, the fools! Alas, turns out Comcast and AT&T were too clever for me.

More below . . . .

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Tales of the Sausage Factory

A minor administrative detail . . .

As I announced last December, I am no longer with Media Access Project. For the present, I am doing a spot of consulting through an LLC I formed with my brother, Strength to Strength Develop-Ed, LLC (or just STS LLC).

I mention this because yesterday I entered a notice of appearance on behalf of Herring Broadcasting, Inc., DBA WealthTV to assist them in their ongoing carriage discrimination complaint against Comcast, Time Warner, Cox and Bright House. So, lest anyone suffer any confusion, I want to make clear this is just me on my own and not anything having to do with Media Access Project or its clients. Also, for anyone who sees me blog on the carriage complaint issues or — I suppose — on other cable matters, and you disagree, feel free to disregard my arguments for entirely new reasons than you did previously.

In other news, in addition to the book I am writing for IG Publishing, I have a nearly completed manuscript based on the last five years of Tales of the Sausage Factory. Anyone with suggestions on who might be interested in publishing such a thing should drop me a line. And, in keeping with the trends of the time, anyone interested can follow me on Twitter or on Facebook.

Stay tuned . . . .

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