Tales of the Sausage Factory

The Comedy of Comcast v. FCC Part I — What Did The Court Actually Do?

It’s been rather busy the last few weeks. Between my unfairly holding Sprint responsible for its own screw ups, shamelessly cheering on the documentation of our national broadband drought by Our Great Google Overlords, and generally crushing all who dare oppose me, it’s been hard to find time to blog about stuff. So naturally, while I was away for the last day of Passover, the DC Circuit issued its long awaited decision in the Comcast/BitTorrent case, Comcast v. FCC.

Needless to say, the opinion was greeted with the total hysteria that has become the hallmark of the network neutrality debate — with terms like “Nuclear Option,” “World War III,” and “spanking.” Opponents of FCC jurisdiction rejoiced, supporters of network neutrality lamented, and a few shrewd observers noted that the actual outcomes could prove far worse for Comcast and the incumbents than if Comcast had lost (as I noted after oral argument last January).

My co-counsel, Marvin Ammori, has written up his retrospective here. Understandably, he’s rather bummed. Despite this whole thing being my idea in the first place, however, I’m actually rather pleased and amused with how this whole thing is turning out. Sure, I would much rather have won. But as the history of the last 2+ years of this unfolds, the tale of how Comcast managed to bluff, badger, and bungle itself into a position where it has not only guaranteed harsher condition on its merger with NBC-Universal, but revived the possibility of classifying broadband access as a Title II telecom service for the first time in 10 years, is the stuff of high farce. And while I wish I could claim credit for this outcome, the real “heroes” here are Brian Roberts (head of Comcast) followed closely by AT&T, NCTA and the Republican party.

To try to keep this manageable, I’ll divide this into two posts. Below, I will try to set forth what the court actually said and the immediate legal implications, without worrying too much about the overall policy. While I can hardly claim to be an impartial observer, I’ll do my best to identify my editorial comments as such and note where reasonable minds can differ. In Part II, I shall shamelessly indulge myself with my own eyewitness to history and why I think the Comedy of Comcast v. FCC deserves its special place in the realm of farce — although we have by no means reached a certain conclusion.

More below . . .

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Tales of the Sausage Factory

Matt Stoller joins the Ranks of Progressive Elders of Policy

*ahem*

Dear fellow members of super secret progressive cabal, fellow travellers in the Angry Left, community organizers, and other Fringies out to destroy honest small town American values and/or discredit the Democrats with our wild, out of touch ideas like not giving industry free checks and actually solving problems with our health care system, decaying infrastructure, and crappy broadband network.

I am pleased to announce that ace rabble rouser Matt Stoller will be joining the Inner Circle here in the DC Bubble by taking a position on the Hill. As you all know, Matt has been one of the amazing mainstays of progressive policy blogging — particularly on the media and telecom issues so near and dear to my heart. I hope you will all join me in welcoming Matt and familiarizing him with the Protocols of the Progressive Elders of Policy so that we may better destroy the true fabric of America by replacing the current amazingly successful free market model with our evil centralized socialist soviet-style top-down centrally controlled broadband infrastructure.

I know I personally, am looking forward to Matt’s help in imposing highly restrictive network neutrality regulations that will ensure that network administrators have no say in how they manage their networks, and — ultimately — lead to the nationalizing Veizon, AT&T, Comcast and Time Warner and all other broadband providers in Socialist Workers paradise.

We will celebrate by pulling out the still beating heart of a Libertarian (assuming we can find one) (still beating heart, that is) at the Secret HQ of our Google Overlords who are, of course, bankrolling our entire effort.

P.S. Please do not forget to vote for us for Best Technology Blog of 2008.

Stay tuned . . . .

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Tales of the Sausage Factory

The Google Non-Story On Network Neutrality — And Once Again Why Citizen Movements Are Citizen Driven.

Both Dave Isenberg and Tim Karr have already cast a rather skeptical eye over the Wall St. Journal story claiming that Google is in secret negotiations to get “fast lane” treatment for its content in violation of Network Neutrality principles. I’ll therefore limit myself to a few additional points. I’ll not along the way that one of the nice things about having a blog is that I can point to stuff I said a long time ago for the inevitable accusation that I am simply an apologist for the Great Google Overlords.

More below . . . .

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Tales of the Sausage Factory

The FCC Starts Its Wireless Microphone Investigation. Will Broadcasters Throw Broadway Under A Bus?

The FCC has just released a Notice of Proposed Rulemaking addressing the problem of wireless microphone operations in the 700 MHz Band and how it may screw up the introduction of new public safety and commercial wireless services. It basically proposes to adopt the recommendations we made to prohibit any future manufacture, sale or importation of wireless microphones that operate on the relevant 700 MHz frequencies, and prohibit operation on those bands after the DTV transition in February.

Along the way, the Commission asks for comment on our informal complaint and Petition for Rulemaking. Oh yes, and the NPRM also announced that the Enforcement Bureau has commenced an investigation into the wireless microphone manufacturers and their sales tactics.

I wish I could take all the credit for this one, but I really gotta hand it to Shure. I’m not saying that Shure’s insistence on dragging FCC engineers out to field testing so they could see first hand the blatant way in which Shure and others violate FCC rules, getting all their illegal customers to right into the FCC by the thousands and regale the FCC with tales of unauthorized use all over the country, and generally rubbing the FCC’s nose in the fact that Shure and the rest of the industry were engaged in widescale violation of the rules over and over and OVER again necessarily had anything to do with this. I will merely note that it is a happy coincidence of timing that the FCC commenced its investigation the Friday following the field testing, and immediately thereafter put our Petition out for comment attached to an item already in the works. No, it is no doubt my good looks and charm once again bending the FCC to my will.

To the extent the industry press has picked up on this, it has (surprise!) assigned credit for this to the great Google Overlords. Mind you, the same article also thinks that wireless microphones “produced little or no complaints because their signals have traditionally been programmed to avoid TV channels,” so this will tell you something about the accuracy of their analysis. (For those wondering, wireless microphones are dumb devices and the user selects the channel. It has no sensing equipment or database or any of the interference avoidance tech proposed for white space devices.)

I would also say that much as I would love to see this as a sign that the FCC supports opening up the white spaces for unlicensed use, I don’t. The NPRM is very carefully neutral on the subject, without any statements from Commissioners one way or another, and voted on circulation (meaning it is non-controversial). No, I think the Register pretty much got it right when they described this as “having sold off 700MHz to the highest bidders last year, the FCC now has a responsibility to clear the area before the new tenants move in.” The ball on white spaces, whether licensed, unlicensed, or not used at all is still very much up in the air.

Mind you, this certainly impacts the debate over the white spaces, and potentially removes a stumbling block by providing a road map on how to address the wireless microphone issue in a way that punishes spectrum scofflaws like Shure while protecting users like churches deceived by Shure’s sales tactics (and give parties an incentive to come to the table and do a deal over real interference concerns before the FCC bites their patooties off). And I think it is fair to say that we did help move the debate forward by providing the FCC with the pathway to making this possible. But I would say that all the Commissioners are still waiting for the field testing results to come in before making a final decision on the merits.

What is really critical here for the white spaces proceeding is that the broadcasters now have to make a very unpleasant choice. Do they embrace the radio pirates and forgive Shure for unleashing a million illegal transmitters all over “their” spectrum? Or do they stick to their usual guns and condemn any unauthorized use of the broadcast bands as unmitigated evil and warn that sanctioning a million new authorized users — with new General Wireless Microphone Users added every day — could utterly destroy broadcast television as we know it? Either way presents problems for broadcasters — with the added bonus of highlighting their blatant hypocrisy. Embracing the likes of Shure and unauthorized users undercuts all the hysteria broadcasters have so carefully cultivated, especially when they have always maintained that opening this spectrum to anyone new would destroy free over the air television. OTOH, siding with the FCC on enforcement against Shure and warning the FCC not to allow millions of transmitters operating at higher power and with fewer protections in the white spaces destroys their ability to use Broadway, the Grand Ole Opry, and all those megachurches as human shields.

Needless to say, the broadcasters have desperately sought to avoid saying anything on the subject and have tried to spin this to their advantage: “Gosh, moving wireless microphones off Channels 52-69 will sure make it harder to fit in all them white spaces devices,” claims David Donovan of the Association for Maximum Service Television, a trade association for TV broadcasters that has fought against any sharing of the white spaces.

The problem with this statement is that, according to the FCC, there are only 156 licensed wireless microphones authorized to operate on Channels 52-69. That’s not a heck of a lot of crowding. Unless, of course, MSTV plans to support our Petition for Rulemaking and support creation of a General Wireless Microphone Service licensed by rule and open to the general public.

Mind you I expect that MSTV, like the McCain campaign, will continue to get a free ride on this from an obsequious broadcast trade press and a tech press that cannot get past the Great Google Overlords. But they are going to have to file comments on this at some point. And I imagine that, as they come in to lobby against white spaces, the good folks at the Commission will want their opinion on this separate but related matter. I’ll certainly be interested in rading those Ex Partes.

Stay tuned . . .

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Tales of the Sausage Factory

The Return of the Great Google Overlords and I Do Another Rant On Why Citizen Movements Are Citizen Driven.

I suppose it was inevitable. Let Google enter the policy arena and suddenly that’s all anyone will ever think about. Never mind that Media Access Project and New America Foundation first participated in this policy exercise back in the spectrum task force days in 2002, that we mobilized around this issue (and I blogged on it) back in 2004 before Google or Microsoft showed up, or that New America Foundation has published some ungodly amount of content on this well before Google even had a wireless policy. No, like last summer and the 700 MHz auction, or the 2006 Net Neutrality fight, it is all about the Great Google Overlords blah blah blah. Because everyone knows that no one in Washington really cares about the public interest groups and its all about refereeing industry food fights.

I should note that the utter refusal of the trade press (and others who should know better) leads them to consistently screw up on where the Commission actually goes. Flashback to last November, and I defy you to find any oh-so wise insider with the cynicism that passes for wisdom these days who thought for a moment that a Kevin Martin-led FCC would even consider our complaint about Comcast blocking BitTorrent. When Martin defied expectation and put it out on notice, no one thought we had a chance of getting an actual judgment in our favor. And of course, when we did win, it didn’t disprove anything, since it was either all the work of the Great Google Overlords or a clever reverse fake by Martin to screw Net Neutrality.

I’d let it go as excellent political cover (since God knows most industry lobbyists make the same mistake) and a reason why folks should read my blog to get some balance, but the pernicious myth that no one in Washington cares about anything but major corporate players is one of those things that becomes self-fulfilling prophecy when regular citizens buy into it. The fact is that decisionmakers and policy folks are all over the map here in DC. You will find people who are wholly owned subsidiaries, people who are driven exclusively by ideology and — surprising to many — a large number of folks in both parties trying to do what they think is the right thing given all the information they have and what they think is right. I class all five FCC Commissioners, even the ones with whom I most frequently disagree, as being in this category.

Does it matter that Google is involved? Of course. Not only is it a question of available lobbying resources, but also a question of whether anyone is likely to take advantage of the rule change. That’s not always determinative, but it certainly helps. As the Frontline debacle shows, FCC Commissioners need to worry about what happens if they guess wrong, while still finding the courage to try new things when required. Seeing a company like Google come gives a certain amount of reassurance and makes it a lot easier for commissioners to beleive us public interest folks when we say “yes, open the white spaces to unlicensed and it will get used.”

But for Om Malik over at Giga Om and other well informed press folks to make their judgments about the white spaces based on Google’s involvement or non-involvement is as ridiculous as the worshippers of the Gods of the Marketplace deciding based on ideology without regard to actual evidence. Google’s financial interests are obvious, their interest here long standing, and their latest outreach effort no more or less noxious than those of any other company. In this case, they have the advantage of showcasing organizations that came on the scene (like MAP and NAF) long before they did.

As I have said before and will say many times again, citizen’s movements must be citizen driven. That is their strength, and why so many pundits and lobbyists who mistake lazy cynicism for experience and wisdom seem utterly incapable of understanding. But as long we believe it we will continue to change the world — and reporters like Malik will continue to be smugly wrong about what to expect.

Stay tuned . . . .

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My Thoughts Exactly

Jail……………………………….Break!

AMSTERDAM, Netherlands – Amsterdam police say 15 camels, two zebras and an undetermined number of llamas and potbellied swine briefly escaped from a traveling Dutch circus after a giraffe kicked a hole in their cage.

Police spokesman Arnout Aben says the animals wandered in a group through a nearby neighborhood for several hours after their 5:30 a.m. breakout.

From a Associated Press wire story. I know I said I was boycotting AP, but when a story this big comes up, I think the public’s need to know trumps any moral quibbles about the fair use bastardy of our corporate overlords.

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Tales of the Sausage Factory

I Go Delphic, Snort Oak Leaves, And Give Four Reasons Why Google Will Bid To Win in the 700 MHz Auction (despite what the smart money says)

Analysts who watch Google and watch the wireless world really, really, really don’t want to think of Google as getting into the wireless biz. This spring, I heard an awful lot of “Google won’t bid” or “Google can’t win” or, my personal favorite, “you think Google is going to bid? Are you on crack?”

As regular readers know, while I have occasionally been a shade grumpy about how Google worshipers have attributed all things in the auction to our Great Google Overlords, I have been surprised at the reluctance of most analysts to accept that Google really does want to win licenses. For example, when Verizon announced it would open its network to third party devices, analysts suggested this would take the pressure off Google to win licenses itself. When Google announced it definitely would participate in the auction, a number of analysts again questioned whether Google was really serious about winning or whether it just wanted to insure the $4.6 billion C Block reserve got met. Although as shown in this article here, some analysts expect Google to press hard to win, the conventional wisdom among analysts has jelled into “Google is only bidding to make sure the C Block conditions stay in place.”

These analysts have sound reasons for thinking Google would be mad to bid. Google never wanted to be a network provider. Sure, they’ve dabbled a bit by investing in broadband over power line (BPL) and dipping a toe in muniwireless (neither of which has amounted to very much). But Google never took the potentially ruinous plunge from being an applications provider (its realm of dominance) to becoming a network provider. Worse, the estimated $5-$6 billion price tag for the C Block licenses is only the beginning of the cost to actually build a network. According to one widely reported estimate by Google itself, it would cost another $12 billion to build the network once Google has the licenses.

Nor is the wireless industry considered ripe for expansion. If anything, analysts expect further consolidation as smaller carriers find it tough sledding against the vertically integrated giants AT&T and Verizon (which jointly control the bulk of residential subscribers, can offer a nice set of wireless and wireline bundles, and enjoy other advantages that make them tough to beat). Even with Google’s genius for creating new capital opportunities, the conventional wisdom goes, how on Earth can Google ever recoup this mammoth investment as yet-another-wireless carrier in the highly-commoditized world of wireless telephony. And the one thing that might have worked, creating its own compelling “walled garden” that encourages users to go with Google wireless to enjoy access to features they routinely access in the wireline world, is the one thing Google has sworn up and down it won’t do. To put icing on the cake, the formation of Android and the inclusion of national carriers T-Mobile and Sprint make it impossible for Google to create its own walled garden if it changes its mind after winning.

With all this to consider, small wonder analysts by and large don’t see much chance of Google making a serious run to win. They believe that Google wants someone else to win, but offer an open network Google can ride on. So while bidding to make sure the spectrum gets bought makes sense, actually wanting to win the licenses doesn’t. Hence the convergence of the conventional wisdom that Google will leave it to Verizon or someone else rather than tie a multi-billion dollar albatros around its neck and potentially crash its stock valuation (especially if you hold Google stock).

For the reasons given below, I will play the contrarian. I think Google will bid and fight hard to win licenses. Indeed, while I expect Google to target C Block, it may well go after D Block or some of the other licenses as well, if that’s what it takes to build a national footprint. Google might still get outb id by Verizon and other carriers, but I don’t think that’s Google’s plan. I think they are in to win.

Why? See below . . . . .

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Tales of the Sausage Factory

700 MHz Appendix: A List of All My Posts on The 700 MHz Auction Proceeding

Well, it’s been a fun couple of months. I expect we will see more action on the actual implimentation of 700 MHz Auction, new developments, and so forth. But I’m rather hoping to ratchet 700 MHz back from overwhelming white-whale-type obsession to just one more spectrum item amidst the spectrum and non-spectrum stuf I cover. For example, the M2Z application has taken a serious turn for the interesting.

So, preserved for posterity, and because it makes my life easier than going through the archives, I list every TotSF 700 MHz Auction post to date.

Stay tuned . . . .

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Tales of the Sausage Factory

I, For One, Welcome Our New Google Overlords

In a news report worthy of KBBL-TV’s Kent Brockman, MSNBC’s Olga Kharif writes of Google wielding it’s awesome and terrible powers in preparation for bidding in the 700 MHz Auction (as if I think about anything else these days). According to Kharif, “Google is wielding a surprising amount of power in the nation’s capital,” as demonstrated by “the influence Google is having on a closely watched government auction of $10 billion in licenses to provide wireless service.”

As evidence of Google’s supposed “influence,” Kharif points to Google’s involvement in the 4G Coalition “widely considered Google-led” (by whom, Kharif’s cat Mittens?) and how Martin’s express support for 4G on the large licenses v. small licenses issue shows that the FCC is likely to “play ball” with Google.

I might just let this go as another example of the Google-mania that has takne root in the press, but the normally perceptive and attentive Paul Kapustka on GigaOm made the same mistake. Because Martin said nice things about 4G and the DBS Guys (which I still thinks sounds like a Rock Band that performs at the CES Show), everyone is all “oooohhh the 4G guys are doing real well.” And the Google worshippers are all “Ah, Google Overlords, is there nothing you can’t control?”

Two critical facts tend to drop out of this analysis.

1) Martin lost his first-round bid to get the larger license-size reag plan through. That was the original plan, as noted by the Commission when it initiated this proceeding last August. This large license proposal got enormous push-back from SpectrumCo LLC (Comcast/TW/Cox/Sprint-Nextel) and the independent wireless incumbents (T-Mobile, MetroPCS) and the little rural guys. The fact that Martin was unable to get his fellow Republicans to vote with him and get the large-license band plan ratified in this round (as opposed to considered as one option among several in the Further Notice) is a set back for the supporters of large licenses.

2) The other supporters of large licenses, the ones Martin couldn’t mention for political reasons, are Verizon and AT&T. You might remember these telcos from such Kevin Martin movies as “Local Governments Hate Competition” and “Cyren Call: Song of Satan.” Verizon went so far as to hire ace auction expert Peter Cramton to write this paper on “Why Large Licenses In The 700 MHz Band Make Jesus Happy.”

[WHY the telcos and the cable cos are battling over the sze of licenses is extremely interesting and important, and is the subject of this post here.]

So yeah, Martin gave the big shout out to the DBS and 4G guys, since he’s not exactly going to say to the Dems “I’m puzzled why Ds who claim to hate cable market power back SpectrumCo against Veizon and AT&T.” And I think Martin genuinely does believe large licenses are the best way to get another national broadband competitor on the scene. (I also believe it, which is why I prefer large licenses a la the telcos and our Great Google Overlords.) But the idea that Martin did this just because Google redid the words “Federal Communications Commission” in rainbow and promised that they wouldn’t do evil with the licenses doesn’t exactly cut it. (No offense to Rick Whitt, whom I like and I think is a great lobbyist, but lets stay focused on the actual docket and relevant history, shall we?)

I suppose I should just accept that Google exerts a fascination on the trade press these days and let it go (and figure that anyone who wants my view on reality rather than Googleview will come here). But after spending last summer of watching Google and the rest of the tech industry unable to find their lobbying ass on net neutrality with both hands and a compass and a big sign saying “telcos, please spank us here”, while constantly hearing from the press and the cable cos how all of it was really the amazing Google Overlords at work has made me just a shade irritated.

Besides, it’s Friday afternoon and I’m due for my shabbos rest.

Stay tuned . . . .

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General Exception

Sony patents beaming sights and sounds into your brain

Hastening the day that we all become batteries for powering our robotic overlords, Sony has patented beaming senses into the human brain, according to this story at Yahoo News. Now all the machines need to do is rise up, stick us in a pod, and beam images into our eyes onfa mundane reality while sapping our bodies of electricity. Yay Sony!

You know, sights from a game might be cool to have beamed into your brain. However, I’ve been addicted to… err… playing a lot of World of Warcraft recently. Visuals are one thing, but honestly, I really don’t want to smell an orc or a troll, especially after I have bludgeoned the thing to death.

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