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

Cable Industry Flips Off FCC, Fines To Follow? Expect Other Industries to Tell FCC To [Fleeting Expletive] Off Too.

I clearly missed a class in law school. Not once in my Administrative Law class did my professor ever tell me that you could respond to a federal investigation by telling the agency “We know you have authority, but we’d rather not answer these questions because you are a great big meany.” But then, I’m not working for the cable industry, which has repeatedly shown it has trouble with the concept that federal law really applies to them and that the FCC is supposed to be a regulator not a lap dog.

Today’s episode of “I Can’t Believe The Chutzpah” comes from the ongoing investigation by the FCC over whether cable operators are using the confusion around the DTV conversion to push users into buying digital tier service, and rent new digital set-top boxes in violation of the rules on set-top box interoperability, or just generally violating the law by changing channel line ups without notice to either subscribers or local franchise authorities, migrating stuff off basic tier without warning, or charging for additional tiers to get channels required by law to be available on the basic tier. Mind, I’d also like them to explicitly ask whether the cable guys are unfairly migrating unaffiliated channels to digital in violation of Section 616, but that’s just me.

Anyway, after getting a bunch of consumer complaints and reading Consumers Union’s letter to Congress (or at least hearing about it on NPR), the FCC sent out a bunch of letters of inquiry to the named cable companies and Verizon asking them to provide a boatload of information which would allow the FCC to determine if the consumer complaints were, ya know, true. Given that this is lots of people being potentially ripped off big time, the agency told the everyone that got a letter they had two weeks to reply.

Mind you, this is hardly an original process or unique to the cable industry. I should know. The FCC did the same thing in response to my complaint about the wireless microphone guys back in August. The FCC (also under Martin I should add) acted with similar swiftness and intensity back in 2006, when Verizon and BellSouth tried to keep charging USF fees on DSL after they were phased out. The phone companies, apparently under the same misconception that I was that even if you are a big company you actually have to obey the law, backed off. The cable companies have other ideas. And, if they get away with it, I’m sure the Bells, broadcasters, and every one else will follow suit.

So yesterday, NCTA,the trade industry for the cable guys, sent a lengthy letter to the FCC explaining that the FCC is not allowed to investigate the cable industry. They recommend that the FCC rescind the letters of investigation and, instead of having the Enforcement Bureau actually act on consumer complaints, the FCC should hold a nice, quiet Notice of Inquiry instead. Then, if Martin gets all the other Commissioners to agree, and the FCC asks nicely and without any legal compulsion to answer honestly or completely, cable operators might consider responding.

Now I just know, KNOW that there are people out there who hate Kevin Martin so much that they will decide that it is really O.K. for cable to tell the FCC to “fleeting expletive off and die,” because it is the poor helpless widdle cable guys and the evil Kevin Martin (I cannot help but observe that Verizon does not seem to have any problems complying with this request, but of course they are an evil minion of Kevin Martin, or the other way around. Besides, Kevin Martin hates the cable industry, so there!)

As what is often called a “consumer advocate,” I’m a little alarmed that we will now have a new doctrine that says “consumers can complain, but the FCC can’t protect them if we think the FCC Chair might enjoy it.” And while I would flippin’ think that the idea that the cable companies need to obey the law like everyone else would be bloody self-evident, not to mention that the consequences of letting industry dictate to the federal watchdog agency what it will and won’t respect on enforcement go well beyond the poor picked on widdle cable guys to whatever industry you don’t like (in my case, wireless microphone manufacturers — I can hardly wait for Shure to refuse to cooperate with the FCC next), I long ago learned that even bloody obvious things need explaining when it comes to the cable industry and their rabid defenders.

So I address the actual legal issues below . . . .

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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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Tales of the Sausage Factory

Brief update on White Spaces

For those following the current White Spaces follies (or, “how Microsoft crashed an entire proceeding by treating spectrum as if it were software”) the FCC announced it will do further testing on white spaces prototypes.

That’s a modest victory for pro-white spaces forces, as the NAB had tried to leverage the failure of the (broken) Microsoft device to force the FCC to shut down the proceeding (or, more realistically, go with stationary devices and say no to mobile devices, with sufficient restrictions on power level and use of adjacent channels to make the white spaces virtually useless). At the same time, however, it ups the stakes pretty severely. Another “blue screen of static” and the NAB will probably get its way.

My sense is that a majority of Commissioners would like to see this happen, if they are convinced the engineering works. That doesn’t just mean a proof of concept. That means a demonstration that the technology today works sufficiently well that the FCC’s Office of Engineering and Technology can say with confidence “if devices follow these rules, they will not interfere with people trying to watch free over-the-air TV.” We know the theory works, but is the technology ready for prime time?

Stay tuned . . . .

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Tales of the Sausage Factory

McDowell: “I Am Not A Pawn; Solve Your Own Damn Merger!”

In a very special Christmas episode of the Telecom worlds favorite Telenovella, Death Star Reborn: The AT&T/BellSouth Merger Commissioner McDowell gives his fellow FCC Commissioners a lesson on ethics, the power of the Christmas spirit to facilitate good will towards all men, faith in negotiations in multibillion dollar mergers, and why it REALLY PISSES HIM OFF when people try to use him as “a pawn.”

You can read McDowell’s written statement (and supporting documentation) here, and watch the archive of the video of McDowell’s press conference here. You can see the statement from my employer, Media Access Project, here.

But for my personal analysis, see below . . .

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Tales of the Sausage Factory

FCC loses a good one

Lest you think I only speak ill of FCC staff, I was quite sorry to see on Mike Marcus’ Spectrumtalk blog that Alan Scrime, Chief of the Policy and Rules Division of the Office of Engineering and Technology, is leaving the FCC to take a job with the Army close to his home in New Jersey.

In the time I’ve been working on unlicensed spectrum issues (which OET handles), Alan has always been a pleasure to work with. A smart fellow who has been just as interested in what the non-commercial folks are doing as he has been with the established players or well-funded start ups, Alan has also displayed considerable patience and willingness to explain things to non-technical folks such as myself.

Sorry to see Alan go, and wishing him luck with the Army.

Stay tuned . . . .

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Tales of the Sausage Factory

Live from St. Louis- Kickin' Media Butt In Mo.

For the next few days, I’ll be blogging live from Free Press’ media reform conference in St. Louis. Sell out crowd of 2200 academics, activists, and random folks getting together to discuss the media reform movement and how to move forward.

Right now, I’m in the “Academic Brain Trust” pre-session. 120 people getting in early to figure out how to get academics involved in this despite the fact that university departments make it impossible to do anything that relates to the real world, particularly if you don’t have tenure.

I expect I will try to do daily wrap ups rather than bug everyone hourly now that we have RSS feeds.

Stay tuned . . .

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Tales of the Sausage Factory

Tales of the Sausage Factory: Last Gasp on Unlicensed Order

As those who follow unlicensed proceedings at the FCC here know, the FCC has been considering opening up the 2650-3700 MHz band to unlicensed use. The rumor is that the FCC will vote on the item at its March 10 meeting. I have also heard that the item is not particularly friendly to mesh networks. We have until Wed. March 2, 2005, 5 p.m. Eastern Time to turn this around. Wanna help?

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My Thoughts Exactly

Wetmachinery

Wetmachine designer & webmaster Gary Gray and I met tonight to go over plans for tweaks to the site, coming Real Soon Now.

We have a couple of goals in mind. Firstly, we want to make “Tales of the Sausage Factory” and “Inventing the Future” more accessible to their readerships. So there will be separate RSS feeds for these series, and vectors into the archives by author/topic. There will be sign-ups for various Wetmachine mailing lists. It will be more obvious how to post comments and how to get in touch with the various Wetmachiners.

Below the fold: your chance to jump into the Gary-John brawl over the “feel” of the site.

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Tales of the Sausage Factory

Tales of the Sausage Factory: CUWIN Makes Cool Device

The good folks at the Champaign Urbana Wireless Network have just relased a very cool open source program that, when attached to a device built with components you cna buy in any electronic store, become a node in a mesh network. For less that a grand, you can “unwire” a whole neighborhood. Their press release is reprinted below.

The great significance of this from a Sausage Factory point of view is that federal policy in this area is completely unprepared for the ability of a few folks ona shoe string to develop a new, disruptive technology. Spectrum policy is usually about big companies or well financed start ups. The “two guys in the garage” model is not usual in spectrum, because it is so tightly regulated. That unlicensed spectrum and open source free people to do this sort of thing is yet another good argument for more unlicensed spectrum.

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