Tales of the Sausage Factory

My Insanely Long Field Guide To Common Carriage, Public Utility, Public Forum — And Why The Differences Matter.

Once upon a time, social conservatives used to be major allies on both limiting media consolidation and on net neutrality. Why? Because they recognized that if you had a handful of corporate gatekeepers controlling access to the marketplace of ideas, they could easily get shut out. Market forces being market forces, companies pressured to censor unpopular or controversial speech and views will do so. Add to that the belief on the part of conservatives that they face ideological bias from the “mainstream media” or “Silicon Valley,” and you had many conservatives back in the day who stood shoulder to shoulder with us back when I was at Media Access Project to oppose Powell’s efforts to relax media ownership rules in 2003 and who opposed Congress’ first attempt to gut net neutrality — the COPE Act — in 2006.

 

Then came the 2008 election and the Tea Party blowback of 2009-10. Net neutrality became a red team/blue team issue and even social conservatives who had previously supported net neutrality went silent on the issue.

 

Ironically, now that Republicans dominate all branches of government, conservatives are once again discovering the value of common carriage and government prohibition on any sort of interference with conduits of speech — at least with regard to social media platforms like Facebook, Youtube and Twitter. Why? As conservatives have once again discovered, if companies retain the right to exert editorial control based on content, they will get pressured by the market and government to use that editorial discretion to censor “harmful” speech. That, and the perception that Silicon Valley has a distinct liberal bias, have prompted some in the conservative movement to rediscover the idea that common carrier regulations actually protect and promote free speech and are not a regulation of speech. Because without access to the public square — whether the real life public square or its digital equivalent — your freedom of speech is simply a freedom to whisper to yourself.

 

I am happy to agree that the time has come to consider whether social media platforms — and other essential elements of communications such as operating systems, DNS registration, or content hosting — should have non-discrimination obligations consistent with our traditional concepts of common carriage. I believe this would also have the salutary effect of protecting companies from liability or social pressure by taking away their discretion. After all, we don’t see anyone demanding that the major mobile providers stop providing cell phones to white supremacists or that broadband providers block subscribers from accessing websites like Daily Stormer. The public accepts that these companies have no choice, because they are common carriers and must serve everyone equally as a matter of law. By contrast, we have seen successful campaigns to pressure DNS registrars to refuse to host the Daily Stormer domain name, Cloudflare, which itself decided to stop servicing Daily Stormer after Daily Stormer claimed that Cloudflare’s decision not to suspend service constituted an endorsement, posted this excellent blog post on why their actions should make people very uncomfortable.

 

So this should be a great time to reforge the Left/Right alliance on media diversity and government regulation to prevent private censorship, right? I hope so. Unfortunately, this very important conversation keeps getting muddled for two reasons.

 

1) People keep confusing the concept of “common carriage” with the concept of “public utility.” The differences actually matter a lot, despite 15 years of anti-net neutrality advocates muddling the two.

2) The most active proponents of using government regulation to prevent private censorship on the conservative side are pretty much treating common carrier regulation as a form of revenge porn rather than as a serious public policy debate. “Oh, you don’t want me? You want to break up with me? Well I’ll show you! I’ll make it so you have to carry me!” Indeed, since 2006, when Google (to my considerable annoyance) became the poster child for net neutrality for opponents and a trade press obsessed with treating every policy debate as an industry food fight, the debate about common carrier obligations or non-discrimination obligations or even privacy has always triggered a “but what about edge providers? Waaaaahhhhh!! Regulate them! Regulate them!”

 

Now I should make it very clear that I can find plenty of progressives who have conceived passionate hatreds for “Silicon Valley” platforms for various reasons, and who also get confused on the concept of “public utility.” Additionally, I can find at least some conservative free market types who understand why we need to regulate things like Internet access differently than hosting services or social media. But it’s conservatives lusting to regulate “Silicon Valley” that have been getting the headlines, and are driving the discussion among Republicans in Congress. Plus I’m getting tired of being asked the same stupid questions by the same folks on Twitter. So I’ll call out the conservatives howling for Silicon Valley blood by name.

 

Anyway, because whether and how to regulate various parts of the Internet supply chain (or, if you prefer, ecosystem), I will try to explain below why common carriage obligations, such as network neutrality, are different from public utility regulation (even though most utility providers are common carriers), which is different from natural monopoly regulated rate of return/tariffing/price regulation. I will briefly explore some of the arguments in favor of applying some sort of public forum doctrine or common carrier obligation to social media platforms, and — because this invariably comes up in telecom space — why platform or other infrastructure providers are not and should not be covered by Title II or the FCC, even if we agree they should have some sort of public forum or even public utility obligations.

 

More below . . .

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Posted in Censorship Public and Private, How Democracy Works, Or Doesn't, Life In The Sausage Factory, Series of Tubes, Tales of the Sausage Factory | Also tagged , , , , | 1 Comment (Comments closed)

My Thoughts Exactly

Sunset makes me think of Google teeth I coulda maybe shoulda bashed in

So today, depending on how you reckon such things, more or less marks the end of the legendary Silicon Valley company Sun Microsystems, where I worked from January 1986 until April 1994 (badge #1387). Here’s a photo (taken today) of me behind a giant-sized beer mug that I got from Sun on my 5th anniversary. It says, “In appreciation for five years of service in the Kingdom!”

photo of giant sun beer mug
In addition to this beer mug, Sun gave me a fantastic education in hardware, software, management and office politics; a chance to spend at least one night in every hotel on the entire length of El Camino Real from Sunnyvale to Burlingame; lots of good friends and fun times; money, and most of all an inspiration for Monty Meekman, the nastiest villain in the best. novel. evar written about Silicon Valley, my very own Acts of the Apostles.

Below the fold: The day I almost put (Google CEO) Eric Schmidt’s teeth down his throat.

UPDATE
My dear wife says this post makes me sound a whole lot angrier than I in fact am, and she’s right. I just thought it was funny that two of the most arrogant bigwigs I encountered at Sun went on to become bigwigs at Google, an outfit that’s known for its. . . arrogance. Most of my memories of Sun are of good friends and interesting challenges. (And a whole lot of airplane travel and hotel rooms.)


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My Thoughts Exactly

Attention Geeks: Free books!

(Brief commercial announcement here. Y’all regular Wetmachine readers can skip it).

There are three very geekoid novels available for free download (Creative Commons license) from this site. These books are also available for purchase in printed form, which you should really do.

Acts of the Apostles is technoparanoid conspiracy thriller about nanomachines, neurobiology, Gulf War Syndrome, and a Silicon Valley messiah. Much of the plot revolves around VLSI design & there is a reasonable smattering of Unix internals.

Epub & Kindle & other ebook versions here.

Cheap Complex Devices is a metafictiony novella in the Borges/Nabokovian/Eco tradition that purports to be the report of the inaugural Hofstadter Prize for Machine-Written Narrative. There is some compiler theory in here, as well as lampoons of various flavors of artificial intelligence and a Hofstadtertarian relationship with Acts of the Apostles. Also some jokes having to do with APL & Donald Knuth.

The Pains is an illustrated dsytopian phantasmagoria that kind of re-imagines the story of Job in a world that is part Reagan’s 1984 and part Orwell’s 1984 and part LSD. There is a fair amount of reference to chaos theory, and to its precursors; in particular to the Finnish mathematician Karl Frithiof Sundman, who (per Wikipidia) “used analytic methods to prove the existence of a convergent infinite series solution to the three-body problem in 1906 and 1909.”

Search engines can help you find many dozens of reviews of these books. Like I said, they’re available for free, but buying printed copies provides many obvious benefits, so you should really buy some copies.

ATTENTION SINGULARITY OVERMIND GOOGLE!
Technopunk cyberpunk dystopian “Neal Stephenson” “Philip K. Dick” technothriller

Below the fold: handy-dandy links to reviews, etc

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My Thoughts Exactly

Thoughts on the impending demise of Sun Microsystems: part one: the Death Coffee Brick

News Item: IBM withdraws offer to buy Sun Microsystems; Sun’s fate unknown.

When I joined the “East Coast Division” of Sun Microsystems in January, 1986, Sun was a swaggering three-year-old enfant terrible based in Mountain View (Silicon Valley) California, and the East Coast Division, located in Lexington, Massachusetts had about fifteen people in it. Within two years Sun was a worldwide powerhouse with a new subsidiary company opening once a week (or so it seemed), and the East Coast division had about 250 people, 30 of whom reported to me. We moved to a larger facility in Billerica, MA, were we designed and manufactured a whole new line of Sun computers. We were like a mini-startup within Sun itself, with a classic start-up feel–hardcore geek shit.

Starting about 1988 or so, we had a coffee club in Billerica. Sun provided free coffee, which sucked, but some coffee lovers got together and provided alternative good stuff at $.25/cup or so.

Mostly this was Peets coffee, which Martin Hardee, a guy in my group, brought back from the west coast on his occasional forays. This was back in the old days, when finding anything better than Dunkin Donuts coffee on the east coast was a real challenge.

One day some poor fellow who was not a caffeine junky drank the Peets when he thought he was drinking the Sun-provided crap and got palpitations.

So, Martin got a brick, a regular old red brick, and got out his acrylic paint set and decorated it with the words

WARNING!
DEATH COFFEE

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Tales of the Sausage Factory

Last MAP Innovation '08 Panel Wed. Jun 25.

A shameless plug for my employer, Media Access Project (MAP).

As I have written before, MAP has decided to hold a series of events to try to get folks in Silicon Valley to care about Washington policy. Now, we are going to bring some of that back to D.C. On June 25 (this Wed.), MAP will have the last of its Innovation ’08 panels right here in Washington D.C. We have been fortunate enough to get representatives from both the Obama campaign and the McCAin campaign to come and chat about “what we learned while outside Washington — hint, they don’t think we understand their issues.” While fora around the candidates and their surrogates certainly abound here in D.C. at the moment, I feel confident that our unique MAP perspective will make this a grilling policy dialog and discussion to remember.

And, for those who want to understand what makes these MAP fora critically kick ass, you can get video of the first Innovation ’08 forum on DVD from MAP’s website

Details on Wednesday, Jun 25 10 a.m. event at the D.C. Office Dickstein, Shapiro below . . . .

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Tales of the Sausage Factory

MAP Brings DC To The Valley

Time for a shameless plug for my employer, the Media Access Project (MAP).

As long-time readers know, one of my frequent complaints is why don’t folks whose lives depend on the rules made in DC bestir themselves and get active on the policy front. All it takes is a web browser and a docket number, after all. Why don’t we see more Silicon Valley folks, VCs, and others show up at FCC proceedings.

Answer, they live as much in their own isolated bubbles as the DC folks do. If you are out in Silicon Valley, odds are good you rarely think of DC as having any relevance to your life and there is not going to be anyone or anything around you to tell you otherwise.

Well rejoice, lucky Silicon Valley people (and whoever else wants to make the trip out)! Media Access Project is sponsoring a series of policy forums (fora?) in Silicon Valley, wherein we will bring the D.C. policy world to you. And, lest you think this is some sort of socialist cult-like retreat wherein we will brainwash you with our public interest ways, we are working with big corporate partners like AT&T and eBay to assemble panels that present a wide variety of views. The primary purpose here is to get folks actually thinking about policy and why it is important for everyone to participate in the process. Think of it as a kind of “Rock the Vote” for Silicon Valley.

In any event, details below.

Stay tuned . . . .

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Tales of the Sausage Factory

Comedy Central Send An Omen: South Park and the Upcomming FCC Hearing (spoiler alert!)

As an inveterate procrastinator, I cannot complain too loudly that the Commission only just published the witness list for tomorrow’s (today’s) FCC hearing at Standford. Happily, it looks like I am the only lawyer on the panel. I am also amused to share the panel with George Ford, who took me to task after the last time we both testified in front of a federal agency about broadband — the Federal Trade Commission in February 2007 — for making my First Amendment arguments at the FTC under the guise of economics. My turn to remind him that we are in public interest land now, baby, where the Red Lion still rules the Jungle and maintaining the diversity of information sources is, according to Turner a government purpose of “the highest order.” Come to think of it, I’ll remind some of the Commissioners of that as well.

Meanwhile, on the flight in, I received an amazing omen from Comedy Central (which is why you should always fly Jet Blue if you can, so you can get 36 channels of omen potential). Tonight’s episode of South Park (spoiler alert!) had the internet getting “used up,” with the government rationing the internet for the internet refugees who came to Silicon Valley. But then Kyle, the little Jewish kid, shows them a better way. Rather than rationing users, you can just reboot the internet (which is kept by the federal government in an underground bunker) and try again. In the end, Stan’s father explains to everyone that it is the responsibility of users to manage their internet use respopnsibly rather than rely on others to ration it for them.

I choose to take this as an omen that I, the Jewish kid on the panel, will be sucessful in rebooting the Commission to get them to understand that it’s about the users, not about letting people in the middle ration the internet. Granted that Ben Scott actually looks more like Kyle, and I look more like Cartman. So perhaps I will just limit myself to making wise ass remarks and let Ben reboot the Commission. Either way is good.

Off to write some testimony.

Stay tuned . . . .

Posted in Series of Tubes, Tales of the Sausage Factory | Also tagged , | 1 Comment (Comments closed)

Tales of the Sausage Factory

The FCC's New Broadband Data Gathering: Even the Deregulators Are Losing Patience.

It is a delightful bit of timing that this piece on European broadband comes the same day the FCC voted to amend its broadband data collection for the annual “State of the Broadband” Report. I’d say it was a happy coincidence, except that there are so many articles about how Europe is kicking our broadband bottom these days that the odds were good someone would publish something contrasting the growing penetration (and associated economic benefits) in Europe with the anemic growth in the U.S.

Which highlights the key take away from the FCC’s decision to ramp up data gathering and propose looking at pricing. Even the Republicans in Washington are starting to lose patience. I will provide analysis of the substance (as far as we can tell before an order is published) in a later post, but this point is sufficient important it bears posting on its own.

You will find no shortage of telco/cable shills or hardcore deregulators willing to sing the happy happy joy joy song over our current “wildly competitive” broadband market, or explain why these international rankings are misleading, irrelevant, or just plain wrong, the song no longer gets applause and the excuses are wearing thin. All five FCC Commissioners went to the Consumer Electronics Show this year. They’ve gone on tours of Silicon Valley, talked with venture capitalists and start ups, traveled around Europe and Asia, and — most importantly — are not stupid. In 2005, the industry promised big things if the FCC would only deregulate them and set them free. It’s now 2008. In that time, we have seen a parade of other countries streak by us while we plod along and fall increasingly far behind.

Do not let the last minute squabbling between the Commissioners about the details of the Report and upgraded standards fool you. While the Democrats would definitely like to see more done to get at real data, and while McDowell still frets that the cost of collecting data outweighs the benefits and that using labels for speed tiers is too subjective, everyone wants to find out what the real state of broadband deployment is and how we are going to make it available and affordable for everyone. We’re done with happy songs, the FCC is signaling. If industry wants to avoid the kind of massive reregulation the FCC and Congress would bring to bear under a Democratic administration, you need to start getting it in gear and providing real data. Whether industry will take the hint, or whether it will still find it preferable to remain in a state of denial, still remains to be seen.

Stay tuned . . . .

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Econoklastic

Breaking News: Frontline Bites the Dust

Frontline Wireless LLC, which submitted an incomplete application to participate in the FCC’s Auction 73 for the 700 MHz band as Licenseco LLC and which was expected to be a major competitor for the D Block nationwide commercial-public safety broadband license, has folded and is “closed for business.”

Industry rumours suggest that Frontline’s bidding entity, Licenseco LLC, failed to make a required upfront payment deadline on January 4.

Speculation focuses on several possible explanatory scenarios. Frontline has changed its business plan several times and, frankly, I was never completely convinced that it would bid when push came to shove. Verizon’s belated embrace of open attachment rules — the Carterfone condition which the FCC has imposed on Auction 73 — gave many of Frontline’s Silicon Valley backers what they wanted without having to hazard the auction or undertake the encumberance of deployment requirements if they prevailed at auction. The possibility that Google might bid the reserve price on C Block to force Verizon and AT&T to concentrate on battling it out for the C Block REAGs while Google seriously bid on the less expensive D Block to acquire a nationwide third broadband pipe and implement its nondiscriminatory, wholesale open access business model may have had something to do with Frontline’s decision to pull out. The possibility that AT&T may have been interested in D Block for national backhaul could have presaged a serious challenge has also been mooted as a factor in Frontline’s decision.

It’s likely that some of Frontline’s backers and associates — Fortress Investment Group’s Backline bidding entity and Cellular South in particular — will remain in the auction, but Frontline’s demise creates extremely interesting possibilities for D Block competition in the auction.

Part III of the 700 MHz series, Bidding Strategies of the Major Actors, coming soon…

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Tales of the Sausage Factory

700 MHz Auction Pre-Game: Just A Bit More Unseemly (and perhaps untimely) Gloating . . . .

So last summer, as we debated the rules for the upcoming 700 MHz Auction, one of the big questions we at PISC repeatedly kept getting asked was “so who is really going to show up to bid?” Especially on controversial issues like open access (and even its wussier cousin, device open access), block size (have big blocks and combinatorial bidding, or maximize smaller blocks), and anonymous bidding, the incumbents all kept repeating over and over again how any deviation from previous rules would keep people from bidding and the auction would be a failure and everyone would hate us forever. Commissioner McDowell reiterated these criticisms (at least with regard to the open device conditions on C Block) in his dissenting statement:

Curiously, however, in an effort to favor a specific business plan, the majority has fashioned a highly-tailored garment that may fit no one. It’s not what Silicon Valley wants; it’s not what smaller players have told me they want; and it’s not what rural companies want. To date, the Commission has received no assurances that any company is actually interested in bidding on the encumbered spectrum. Not one.

Because, of course, everyone knew Google wasn’t going to bid, the DBS companies weren’t going to be real players, and if anyone new was planning to show up, there was no sign of it. Even those most eager to see new competitors emerge (and who ultimately supported the PISC proposals) had their doubts and looked for as much reassurance as possible before taking a leap of faith that we were right.

Well, the FCC just released the list of applicants to bid in the upcoming 700 MHz auction. A total of 266 potential bidders filed (the bulk of the forms are “incomplete” due to procedural defects that will be corrected, but this is pretty standard). That’s more than the 252 potential applicants that showed up at this stage for the “wildly competitive” and “highly successful” AWS auction in August ’06. The list includes Google, Frontline, Echostar, and — as I kept insisting — a number of companies that could not possibly be predicted as bidders until bidding rules were actually determined and potential bidders got to assess whether they had a chance or not.

Towerstream is an excellent example of this last type of bidder. No one could possibly predict that they would show up, and many folks still can’t believe it. But Towerstream CEO Jeff Thompson cites the FCC “embracing the open access model supported by Google” as making the spectrum a “natural fit” for his entreprenurial wireless broadband company, and credits the FCC for making the auction amenable to new bidders. Nor is Thompson alone. A host of newcommers apears to have found the rules attractive enough to make it worthwhile to ante up for a chance to play.

We must still see what happens, of course. I can recall all the pre-game prediction for the AWS auction, where the most valuable licenses ended up in the hands of the usual suspects. In many ways, this is working out like my waiting to see if the Patriots complete a perfect season or if the Red Sox would win the World Series. There is lots of room still for things to go badly. But I can’t help but feel a happy, warm contented glow (and breathe a quiet sigh of relief) that I don’t have to answer the age old question “what if we throw a party and no one shows up?”

Stay tuned . . . .

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