Tales of the Sausage Factory

Why We Need Title II And Strong Net Neutrality Rules; Or, Fool Me Twice, Shame On Me. Fool Me Every Time — I’m the FCC!

As we slog away once again on Federal Communication Commission (FCC) Chairman Ajit Pai’s summer blockbuster reboot “Net Neutrality: The Mummy Returns!,” it’s worth noting in passing the anniversary a previous Pai celebration of industry self-regulation, #DitchTheBox. I bring this up not merely as a fairly bitter bit of Cassandrafreude, but to remind everyone why only those who most desperately want to believe ever put any faith in “industry self-regulation” — especially when that industry is the cable industry.

 

The cable operators, along with the telcos and other broadband access providers, all claim to loooove the basic idea of net neutrality and a “free and open Internet.” Mind you, we still have the occasional True Believer trying to tell us how good for us it would be if ISPs could “innovate” in exciting pricing plans like “screwing with your video streaming to charge you extra” or “blocking/degrading your efforts to access peer-to-peer applications without telling you.” But as an industry, the major broadband providers have recognized that they need some kind of fig leaf concession (preferably cemented into law by a compliant Congress). And so we have seen the cable companies falling all over themselves to swear their undying support for net neutrality and promises to do nothing to harm the open Internet.

 

So a brief review of the history of cable industry self-regulatory promises, and Chairman Pai’s willingness to believe them, seems in order for the day.

 

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Tales of the Sausage Factory

NCTA Agrees Title II Virtuous Cycle Totally Working; Or, Pai’s Economics v. the Actual Real World.

Last week, NCTA, the trade association for the industry formerly known as cable, posted this amazing graph and blog post showing that the “virtuous cycle” the FCC predicted would happen when it adopted the open Internet rules (aka Net Neutrality) back in December 2010. Indeed, as the NCTA graph (based on the latest Akamai State of the Internet Report) shows, the average speed of broadband connections has not only continued to rise since the FCC first adopted net neutrality rules in 2010, but the rate of increase has accelerated since the FCC adopted the Title II Reclassification Order in February 2015. Finally, as NCTA also points out, in the approximately 10 years since the FCC first began to enforce net neutrality through the “Internet Policy Statement” and the Comcast/Bittorrent Complaint, the cost of moving bits from their source to your home has dropped 90% on a per bit basis. (Whether we are actually still paying too much because of our lack of competition in the broadband market is something of a different question.)

 

Perhaps unsurprisingly, this matches the findings from Free Press’ Dr. Erik Turner in this massive and meticulously documented report, “Broadband Investments And Where To Find Them.” But it’s still nice to see NCTA confirm it. One of the advantages of having blogged on net neutrality for 10 years is I can point to things like this 2006 blog post and say: “Hey, I totally predicted that. Glad to see things working as I predicted they would.” This contrasts with the net neutrality haters, who as far back as 2006 that predicted that preventing ISPs from discriminating and prioritizing traffic would result on average broadband quality getting consistently worse a bandwidth kept treating the Internet “like a truck you can just load things on” instead “of a series of tubes.”

 

 

So why did the self-appointed experts get it so wrong? And why do they still fixate on criteria like “ISP CAPEX” that neither Congress nor anyone outside the economics world cares about (and which a reviewing court utterly will not give a crap about) if better faster broadband is getting deployed as we all predicted and Congress directed?

 

 

The answer boils down to the old cliche: “Among economists, the real world is often a special case.” So while all of us out here in the real world focus on things like “hey, is broadband actually getting deployed, and is it getting better and faster and stuff so we can do all the things that make better faster broadband so critical in everyone’s lives these days,” economists poo-poo such concerns as being part of an “economics free zone.” Questioning this navel gazing in Econ Cloud Cuckoo Land will evoke sneers about how silly you must be for not understanding why the actual real world is irrelevant to the purity and wonderfulness of “real” economics. For some odd reason, a lot of folks eat this superior attitude up with a spoon and fail to ask the follow up question like “you know you didn’t actually address the substance of the argument, right?”

 

Anyway, I will below unpack all of this by: (a) reviewing what we actually predicted about the virtuous cycle; (b) reminding folks about the predictions of doom and gloom from the haters in Econ Cloud Cuckoo Lad (that’s a literary reference, btw, for when the usual suspects want to get all fake outragey to avoid dealing with substance); (c) reviewing why the evidence is consistent with the pro-Net Neutrality prediction and falsifies the anti-Net Neutrality prediction; and (d) why this means that if Pai tries to base his roll back of Title II/net neutrality by embracing the Singer/USTA CAPEX argument and ignoring all the other evidence, he is going down in flames in the D.C. Circuit.

 

(I would love include a section on what ISP CAPEX actually should look like, which casts further doubt on the question of the relevancy of any modest drop in ISP CAPEX over time as a useful measure, but I’m gonna have to save that for a later follow up.)

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Tales of the Sausage Factory

Will Pai “Pull A Putin” And Hack the FCC Process? Or Will He Get Over Himself and Start Acting Like The Chairman?

In my 20+ years of doing telecom policy, I have never seen a Chairman so badly botch a proceeding as Chairman Ajit Pai has managed to do with his efforts to repeal Net Neutrality. For all the fun that I am sure Pai is having (and believe me, I understand the fun of getting all snarky on policy), Pai’s failure to protect the integrity of the process runs the serious risk of undermining public confidence in the Federal Communications Commission’s basic processes, and by extension contributing to the general “hacking of our democracy” by undermining faith in our most basic institutions of self-governance.

 

Yeah, I know, that sounds over the top. I wish I didn’t have to write that. I also wish we didn’t have a President who calls press critical of him “the enemy of the American people,” triggering massive harassment of reporters by his followers. What both Trump and Pai seem to fail to understand is that when you are in charge, what you say and do matters much more than what you said and did before you were in charge. You either grow up and step into the challenge or you end up doing serious harm not only to your own agenda, but to the institution as a whole. Worse, in a time when the President and his team actually welcomed Russia’s “hacking” of our election, and remain under suspicion for coordinating with Russia for support, Pai’s conduct creates concern and distrust that he will also “pull a Putin” by welcoming (or worse, collaborating with) efforts to de-legitimize the FCC’s public comment system and hack the public debate around net neutrality generally.

 

Fortunately, as I told former Democratic FCC Commissioner Julius Genachowski when he was in danger of making the FCC’s process a laughingstock in the public eye, Pai can still recover and rescue himself and the FCC from his self-destructive conduct. Instead of calling his critics enemies of capitalism and free speech, instead of obsessing about his own hurt feelings while displaying a troubling indifference to identity stealing bots filing comments that support his own proposal and failing to follow up on his own claims that the FCC comment system suffered a critical cyber-attack – Pai needs to follow in the footsteps of Michael Powell, Kevin Martin and Tom Wheeler when they faced similar insults (and in Powell’s case, racial slurs). Welcome robust public debate and criticism, condemn the actually illegal hacking used by his supporters, and stop whining about his own hurt feelings. Michael Powell managed to take being called a War Criminal and son of a war criminal for supposedly allowing the press to sell us on the Iraq War, as well as the same kind of racist bullshit that Pai or any other prominent person of color sadly has to endure in an America where racists feel increasingly emboldened. Pai can chose to step up in the same way his Republican and Democratic predecessors did, or continue to contribute to the overall erosion of trust in our institutions of self-governance generally and his handling of the FCC specifically.

 

I unpack all this below . . .

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Tales of the Sausage Factory

Trump Keeps Us All Guessing On Telecom.

Usually in January, especially with a new Congress of new term, I like to try to do a “this year in telecom” preview. Hell, who doesn’t? (I mean, who in Telecom Policyland doesn’t. The answer for normal people is: “no one.”) But this year I can’t.

 

Oh, I can list all the issues we’ve been arguing over the last few years and guarantee we’re going to re-litigate them. We’ve already seen most of the ISP industry (joined by the Ad industry) push back on the privacy rules adopted last October.  We’ve seen a bunch of the industry submit their wish list for deregulation as part of the bienniel telecom regulatory review. And with Rep. Marsha Blackburn (R-TN) now Chair of the Telecom Subcommittee, we can expect lots of action on the Hill side on everything from FCC process reform to Telecom Act re-write. But the Trump Administration itself — its priorities, its possible pick for FCC Chair, and its general direction on telecom policy — remain as much a mystery as when I wrote about it last month.

 

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Tales of the Sausage Factory

Is Net Neutrality (And Everything Else) Not Dead Yet or Pining For the Fjords? Contemplating Trump’s Telecom Policy.

The election of Donald Trump has prompted great speculation over the direction of telecom policy in the near future. Not surprisingly, everyone assumes that the primary Republican goal will be to completely roll back net neutrality and just about every other rule or policy adopted by the Wheeler FCC — perhaps even eliminating the FCC altogether or scaling back it’s authority to virtual non-existence. Why not? In addition to controlling the White House, Republicans have majorities in the Senate and the House.  Jeff Eisenach, the head of Trump’s FCC transition team (now called “Landing Teams”), has been one of the harshest critics of the FCC under both Wheeler and Genachowski. So it is unsurprising to see a spate of articles and blog posts on the upcoming death of net neutrality, broadband privacy, and unlicensed spectrum.

 

As it happens, I have now been through two transitions where the party with the White House has controlled Congress. In neither case have things worked out as expected. Oh, I’m not going to pretend that everything will be hunky-dory in the land of telecom (at least not from my perspective). But having won things during the Bush years (expanding unlicensed spectrum, for example), and lost things in the Obama years (net neutrality 2010), I am not prepared to lay down and die, either.

 

Telecom policy — and particularly net neutrality, Title II and privacy — now exists in an unusual, quantum state that can best be defined with reference to Monty Python. On the one hand, I will assert that net neutrality is not dead yet. On the other hand, it may be that I am simply fooling myself that net neutrality is simply pining for the fjords when, in fact, it is deceased, passed on, has run up the curtain and joined the choir invisible.

 

I give my reasons for coming down on the “not dead yet” side — although we will need to work our butts off to keep from getting clopped on the head and thrown into the dead cart. I expect the usual folks will call me delusional. However, as I have said a great deal over the years: “If I am delusional, I find it a very functional delusion.”

 

More below . . . .

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Tales of the Sausage Factory

Are Police Jamming Cell Phones At Standing Rock Protest? The FCC Should Investigate.

Given the lack of coverage in mainstream media, you might not have heard about the ongoing protest against the construction of the Dakota Access Pipeline immediately upstream from the Standing Rock Sioux reservation aka #NoDAPL. You can find some good statistics on the pipeline and number of arrests associated with the protest here. Setting aside my personal feelings about democracy, freedom to peacefully protest, and how the Sioux concerns seem rather justified in light of the Alabama pipeline explosion, this has now raised an interesting communications issue that only an FCC investigation can solve. Are police jamming, or illegally spying, on communications at the protest and associated Sacred Stone Camp?

 

Over the last week, I have seen a number of communications from the protest about jamming, particularly in the period immediately before and during the Thursday effort by police to force protesters off the land owned by Dakota Access Pipeline. In addition, this article in Wired documents why tribal leaders connected with the tribal telecom provider, Standing Rock Telecom, think they are being jammed. I’ve had folks ask to speak to me using encrypted channels for fear that law enforcement will use illegal monitoring of wireless communications. As this article notes, there are a number of telltale signs that law enforcement in the area have deployed IMSI catchers, aka Stingrays, to monitor communications by protesters. However, as I explain below, proving such allegations — particularly about jamming — is extremely difficult to do unless you are the FCC.

 

Which is why the FCC needs to send an enforcement team to Standing Rock to check things out. Given the enormous public interest at stake in protecting the free flow of communications from peaceful protests, and the enormous public interest in continuing live coverage of the protests, the FCC should move quickly to resolve these concerns. If law enforcement in the area are illegally jamming communications, or illegally intercepting and tracking cell phone use, the FCC needs to expose this quickly and stop it. If law enforcement are innocent of such conduct, only an FCC investigation on the scene can effectively clear them. In either case, the public deserves to know — and to have confidence in the Rule of Law with regard to electronic communications.

 

More below . . . .

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Tales of the Sausage Factory

Ninth Circuit Knee-Caps Federal Trade Commission. Or: “You Know Nothing, Josh Wright.”

Back in October 2014, before the Federal Communications Commission (FCC) reclassified as Title II, both the FCC and the Federal Trade Commission (FTC) brought complaints against AT&T Mobility for failure to disclose the extent they throttled “unlimited” customers once they passed a fairly low monthly limit. You can see the FCC Notice of Apparent Liability (NAL) here. You can see the FTC complaint, filed in the district court for Northern California, here (press release here). As some of you may remember, the FCC was still debating whether or not to reclassify broadband as a Title II telecom service.  Opponents of FCC reclassification (or, indeed, of any FCC jurisdiction over broadband) pointed to the FTC enforcement action as proof that the FTC could handle consumer protection for broadband and the FCC should avoid exercising jurisdiction over broadband altogether.

 

In particular, as noted in this Washington Post piece, FTC Commissioner Maureen Olhausen (R) and then-FTC Commissioner Joshua Wright (R), both vocal opponents of FCC oversight of broadband generally and reclassification specifically, tweeted that the FTC complaint showed the FTC could require broadband providers to keep their promises to consumers without FCC net neutrality rules. Wright would subsequently reiterate this position in Congressional testimony, pointing to the FTC’s enforcement complaint under Section 5 of the Federal Trade Commission Act (FTCA) (15 U.S.C. 45) as an “unfair and deceptive” practice to prove that the FTC could adequately protect consumers from potential harms from broadband providers.

 

Turns out, according to the Ninth Circuit, not so much. As with so much the anti-FCC crowd asserted during the net neutrality debate, this turns out (pending appeal) to be dead wrong. Why? Contrary to what some people seem to think, most notably the usual suspects at Cable’s Team Rocket (who are quoted here as saying “reclassifying broadband means the FTC can’t police any practices of common carriers, at least in the Ninth Circuit” which is either an utterly wrong reading of the case or an incredibly disingenuous remark for implying that reclassification had something to do with this decision. You can see their full press release, which borders on the Trump-esque for its incoherence, here.)

 

As I explain below, the Ninth Circuit’s decision did not rest on reclassification of broadband. To the contrary, the court made it explicitly clear that it refused to consider the impact of reclassification because, even assuming mobile broadband was not a Title II service, AT&T Mobility is a “common carrier” by virtue of offering plain, ordinary mobile voice service (aka “commercial mobile radio service,” aka CMRS). The Ninth Circuit agreed with AT&T that because AT&T offers some services as common carrier services, AT&T Mobility is a “common carrier” for purposes of Section 5(a)(2) of the FTCA and thus exempt from FTC enforcement even for its non-common carrier services.

 

Given that Tech Freedom and the rest of the anti-FCC gang wanted this case to show how the Federal Trade Commission could handle all things broadband, I can forgive — and even pity — Tech Freedom’s desperate effort in their press release to somehow make this the fault of the FCC for reclassifying and conjuring an imaginary “gap” in broadband privacy protection rather than admit Congress gave that job to the FCC. After all, denial is one of the stages of grief, and it must come as quite a shock to Cable’s Team Rocket to once again see that Team PK-chu was right after all (even if it doesn’t make me particularly happy that we were, for reasons I will explain below). But this is policy, not therapy.  As of today, instead of two cops on the beat for broadband consumer protection access, we have one — the Federal Communications Commission. Fortunately for consumers, the FCC has been taking this job quite seriously with both enforcement actions and rulemakings. So while I consider it unfortunate that Ninth Circuit has cut out the FTC on non-common carrier related actions by companies offering a mix of common carrier and non-common carrier services, the only people who need to panic are Tech Freedom and the rest of the anti-FCC crowd.

 

OTOH, longer term, this does create a more general concern for consumer protection in more deregulated industries (such as airlines) covered by the exemptions in Section 5 of the FTCA. Yes, I know most folks reading this blog think the universe revolves around broadband, but this decision impacts airlines, bus services, private mail services like UPS, and any other company offering a common carrier service “subject to the Acts to regulate Commerce.” (15 U.S.C. 45(a)(2))  (Also meat packers and a few other named exceptions). So while I am hopeful the FTC appeals this to the full Ninth Circuit for en banc review (and even the Supreme Court, if necessary) from a general consumer protection perspective, the only direct result of this case for broadband policy is to underscore how important it is for the FCC to do its job despite the industry nay-sayers and their Libertarian cheerleaders.

 

More below . . .

 

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Tales of the Sausage Factory

The FCC Sets the Ground Rules For Shutting Down The Phone System — And Sets the Stage For Universal Broadband.

Here’s the funny thing about the world. The two Orders the FCC will vote on tomorrow (Thursday, July 14) probably have more impact on the future of our communications infrastructure than the Title II reclassification of broadband. But like most momentous things in technology, no one notices because they are technical and everyone’s eyes glaze over.

 

In particular, no one notices the sleep inducing and incredibly vaguely named item “Technology Transitions,” we are talking about the conclusion of a 4 year proceeding on how to shut down the legacy phone system and move all our national communications platforms to a mix of digital platforms. That does not mean we’re getting rid of copper and going to all fiber (a common misconception). In fact, in many communities, the old copper lines might get pulled out and replaced with wireless technologies (what we call wire-to-wireless transition). Those who still remember when Verizon tried this after Super Storm Sandy on Fire Island will understand why so many of us wanted to make sure we have an organized transition with quality control and federal oversight.

 

But most people don’t remember this anymore. And, if you are not one of the 60 million or so people (mostly rural, poor or elderly) who still depends on the traditional copper line telephone, you may wonder what this has to do with your life. The short answer is: the old phone system still provides the backbone of our communications system of shiny digital thingies we take for granted. The old copper line phone system is also the workhorse of most ATMs, retail cash registers, and thousands of other things we take for granted every day. Why? Because the old copper line network has been around forever. It’s an open system everyone can – by law – plug into and no one ever imagined would go away.

 

But even more important for the future of our communications infrastructure – the Federal Communications Commission made this a values driven transition. In a bipartisan unanimous 5-0 vote back in January 2014, the FCC rejected the idea of making the Tech Transition a “get out of regulation free zone” and adopted four basic principles to guide the transition: Universal Access, Competition, Consumer Protection and Public Safety.

 

As a result, for once, for once, we actually have a chance to prevent the inequality before it happens. It took 100 years, but if there is one thing Americans took for granted, it was that we all had the same phone system and could all communicate with each other on equal terms. The rules the FCC adopts will make it possible to preserve this principle of universal access. Because this network forms the backbone of the broadband network, if we work together and don’t blow it, we can achieve the same success with broadband that we achieved with basic telephone service.

 

I dig into this below . . .

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Tales of the Sausage Factory

Broadband Privacy Can Prevent Discrimination, The Case of Cable One and FICO Scores.

The FCC has an ongoing proceeding to apply Section 222 (47 U.S.C. 222) to broadband. For those unfamiliar with the statute, Section 222 prohibits a provider of a “telecommunications service” from either disclosing information collected from a customer without a customer’s consent, or from using the information for something other than providing the telecom service. While most of us think this generally means advertising, it means a heck of a lot more than that — as illustrated by this tidbit from Cable One.

 

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Tales of the Sausage Factory

Auto Industry Crosses The Line on 5.9 GHz By Using Dead Pedestrians To Justify Spectrum Squatting.

For the last 3 years, the auto industry and the Department of Transportation (DoT) have been at war with the open spectrum community of 75 MHz of spectrum up at 5.9 GHz. I will save the longer history for an upcoming “Insanely Long Field Guide To the 5.9 GHz Proceeding” post.  For now, it is enough to know that, as we enter the last few months of the Obama Administration, the auto industry and DoT have been doing everything they can to run out the clock and wait for this FCC to go away, hoping the next FCC will not be as interested in opening spectrum for sharing. You can read the history of 3 years of bad faith and bait and switch in this filing here. You can read the auto industries most recent insistence on testing that will take us well past the end of the Obama Administration here.

 

So far so normal. This is how spectrum politics works. Incumbents pay lip service to the idea of spectrum sharing, stress the awful terrible things that will happen if the FCC allows the new entrant to operate and cause interference, and insists on an endless series of tests while dragging their feet on anything that would make testing possible. The new entrant, meanwhile, complains bitterly about how the other side are stalling, the interference claims are baseless, and hundreds of billions of dollars in economic benefits are lost as the delay continues.  With the final months ticking down, both sides are now ratcheting up their efforts. Last week, PK, a number of our other spectrum public interest allies (OTI, PK, SHLB) and industry folks (Intel, MS, NCTA, WISPA) sent a letter to the President asking the White House to weigh in at DoT and tell them to stop helping the auto industry stall testing so we can open the spectrum to more unlicensed goodness. Yesterday, the auto industry sent its response.

 

And yesterday, the auto industry finally crossed a line on common decency that just pisses me off.

 

It is one thing to claim that your technology saves lives and that if the FCC doesn’t do what you want, people will die. It is another thing to knowingly and deliberately invoke actual, real dead pedestrians and dead cyclists you know damned well your proposed technology could not conceivably save  in an effort to support your own spectrum squatting. It is even worse when the technology you are pushing, “dedicated short-range communication” (DSRC), would replace the actual existing collision avoidance system you are deploying today that would save cyclists and pedestrians — car radar and sensing systems that use unlicensed spectrum and LIDAR.

 

 

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