So Wall St. Journal Technology Review Walt Mossberg blames Kevin Martin for our ridiculous slow broadband speed.

Here's the dialog:

Mossberg: “You are the head of the FCC. How have you allowed this to happen? I AM DEAD SERIOUS. HOW HAVE YOU ALLOWED THIS TO HAPPEN?

Martin: “I am not sure I am solely responsible. I am also not sure the charts capture the whole story. I think you do have to put in the context some of the demographics of the United States and some of the countries we are competing against.

Mossberg: Does that explain why we pay $12.50 per megabit in the United States as opposed to $3.09 in Japan and $3.70 in France? Why are we paying four times as much?

Martin: Yes it does. Because it costs a lot more to build out in more rural areas and people who live further apart… We have a history of averaging some of the cost to make it affordable for people in Montana.

I find this ironic on two levels. First, I have a memory that goes back far enough to remember the Wall St. Journal editorials absolutely crucifying Kevin Martin when, as a Commissioner, he tried to stop Michael Powell's full-bore deregulation of broadband and the local telephone loop because only a completely laissez faire non-regulatoy approach could get industry to invest and do its job. Ditto the editorials on why C Block open device conditions because any sort of government mandate is bad bad bad BAD and can never, ever, ever be good.

Yes, I know that the Wall St. J. prides itself on having an ironclad fire wall between the reporting function and that editorial function. So I am not saying that Mossberg is being inconsistent or hypocritical in any way. But it is still ironic that reporters dismayed at the current state of affairs blame Kevin Martin for failure to act, while the folks on the Editorial Page routinely pillory Martin for even thinking the word “regulation” without puting a “de” in front.

Second, it's ironic because, while I will be the first to say that Martin has not done nearly enough for my money (let's start with not adopting mandatory wholesale as we at PISC recommended for half the auctioned 700 MHz spectrum last year, and the painfully slow pace of Universal Service Fund Reform), he has done more to foster the development of better broadband at faster speeds than any other member of the Bush Administration. Unlike, say, former NTIA Administrator John Kneuer, who explained last year how everything in American broadband was just ducky and we just need to stay the course, Martin has acknowledged that we need to do better and have higher expectations (although, again, not going nearly far enough IMO). This includes not merely making a show of reforming the FCC's impossibly lame broadband study and report, but actually making some substantive improvements.

Mind you, I'm not defending Kevin Martin's record on broadband here. And I will readily acknowledge that he's been a good soldier for the Bush Administration on a number of key issues (I do not hold my breath to learn if AT&T and Verizon broke the law when they cooperated with NSA on domestic spying). But I cannot let the double irony of a Wall St. J. columnist blaming Kevin Martin for our wretched national broadband situation go unpassed, when the Wall St. J. editorial board has been in the vangaurd of pillorying Kevn Martin any time he actually tries to do something.

Again, I know Wall St. J. takes great pride in keeping its editorial board and reporting functions separate, but it's still delightful. At least, for those of us in the progressive movement who have always been utterly consistent in blaming Kevin Martin and the rest of the Bush Administration for not nearly going far enough. That's why next week at National Conference on Media Reform, the Martin-bashing won't be ironic. It will be heartfelt, sincere, consistent, and deeply passionate Martin bashing. Well, actually it will be ironic then, too; but for entirely different reasons I will post about next week.

But for the Wall St. J. and its fellow worshipers of the Gods of the Marketplace, I can only smile and say “what, you don't like the world the Gods of the Marketplace have made? Then I guess you better pray harder — or perhaps consider a different faith.”

Stay tuned . . . .

Back in February, I blogged about Comcast's complaint against Verizon for its “retention marketing” practices. That's Verizon's practice that, when they get a request from another carrier to terminate voice service and transfer the phone number of a customer who is switching from Verizon (a practice called “porting” the number), they make one last run at trying to persuade the customer to stay. At the time, I observed (as I have for well over a year now, since I first made this argument at the at the Federal Trade Commission's 2007 workshop), that if we are going to rely on competition, then we cannot have rules that privilege one side over another. To cancel video service, you have to call the cable operator, who then gets a last chance to pitch you hard to stay and makes it as difficult as possible to terminate service. But to change telephone provider, the cable company can ask the telco provider and the telco provider isn't allowed to try to keep the customer — but must wait to pitch the customer until after the customer has already switched. That's crazy. It needs to be consistent, or it puts the telcos at a serious disadvantage against the cable cos.

Well, back in April, the Enforcement Bureau issued a recommended decision that adopts this same argument. (I've been a shade busy, or would have blogged on this earlier.) It strongly recommends that the Commission commence a notice of proposed rulemaking designed to harmonize the rules for switching video and voice. No surprise, as this also tracks a Verizon Petition for Declaratory Ruling — as noted by the Bureau in a footnote.

Needless to say, I wholeheartedly approve of such harmonization, having supported this approach for well over a year. So why does the recommendation make me uneasy?

Because of the legal reasoning around the facts of the instant complaint. The Bureau recommends a finding of no violation because number porting is not a Title II telecom service and cable providers offering voice over IP (VOIP) are not providing Title II services. Which means that the FCC can flit back and forth between Title I and Title II at will, depending on its policy needs of the moment. It also means that Title II telecommunications service has now been reduced to only the voice component of plain old telephone service. And even critical elements of POTS, like managing the phone number systems, no longer count as telecommunication services under Title II.

I'm even more queasy about this because it is probably right under the enormous deference shown to FCC definitional hair splitting thanks to the combination of the Brand X decision and the D.C. Circuit's decision on CALEA in ACE v. FCC. Well, Scalia warned the Brand X majority, but they didn't listen. And Michael Powell, by trying to put broadband services beyond the reach of FCC regulation, ended up enormously expanding the power of the FCC to regulate services on a whim.

More on what I'm talking about and what this means for the future (if adopted by the Commission) below . . . [Read More!]

One of the constant irritants for me and others trying to follow what happens at the FCC is the problem of “the too brief ex parte.” Under the Commission's rules (47 C.F.R. 1.1200, et seq), when a party meets with FCC staff on an open proceeding, the party is supposed to submit into the record a written statement providing a summary of the conversation. This is called a “notice of oral ex parte presentation” in FCC-speak, but we usually shorten this to just ex parte. By rule, the ex parte should provide a reasonable explanation of what took place so that a reader can get a sense of the argument made (although you can refer back to a previous filing to avoid repetition). In practice, however, you usually get nonsense like this piece of garbage from Alltel which wins the Comic Book Guy Award for “Worsht Ex Parte Ever.”

So it was with a considerable amount of schadenfreude that I saw the D.C. Circuit whomp Sprint/Nextel for producing crappy ex parte's that failed to provide a record of their no doubt numerous detailed conversations with Commission staff. This failure to leave a record resulted in dismissal of Sprint's case and may cost it many billions of dollars.

More gloating below . . . . [Read More!]

A few months ago, fellow Wetmachiner Greg Rose and I wrote a wrote a white paper on how to improve the FCC's processes, make FCC rulemakings and proceedings more accessible to the public, and generally increase the legitimacy and reliability of FCC decision making. As one relatively easy change, we suggested the FCC post the agenda for open meetings far enough in advance that people can come in and make their last pitches to the agency before “Sunshine” (the period when communications stop under the “Government In the Sunshine Act”) kick in. As we explained, providing the agenda at the last second often advantages insiders who hear when an item is likely to go on the agenda, who therefore rush in while those who don't know the item is going on Sunshine will lose their last chance to rebut arguments or press their case.

So it was pleasant to see Chairman Martin announce that from now on he will publish the likely agenda 3 weeks in advance. That should be a big help to everyone — including the other Commissioners, who will not suddenly find themselves with a week to digest an agenda of a dozen items.

Yes, it is a relatively minor change, but it is important in two ways. First, practical details really do matter. That sometimes gets lost in the fight over specific substantive issues. Second, it demonstrates a willingness by Martin to listen to criticism and take action — at least on the low hanging fruit. Such things deserve notice and suitable (although not overly elaborate) praise. Remember, public policy is made by human beings, and you get what you reward.

Stay tuned . . . .

Passover comes late this year. It doesn't start until Saturday night, April 19. Getting ready for Passover is a phenomenal pain in the rear end, because it involves all sort of complicated cleaning things. So this time of year is really busy for us true believer types.

Which is why the Good Lord has made it such a plentiful season for critical hearings. This week on Tuesday morning, I will testify before the House Telecom Subcommittee at the incredibly crowded second panel on the 700 MHz Auction aftermath. Then it's out to California to catch the FCC Hearing on Network Management (official witness list still not posted, but my name turned up in Comm Daily on the short list).

Mind you, I am extremely happy to have the opportunity to testify before the House and all that. Indeed, given how much I've lived these things (especially the spectrum stuff), I'd be really miffed if I didn't get a chance to speak my piece. I just wish it could be a little, y'know, less hectic.

At least I will be able to say with conviction at my Passover celebration “Now I am a free man.”

Stay tuned . . .

Occasionally, folks at industry trade conferences make the mistake of forgetting that press are there and say what they are actually thinking. In fairness, most of these guys probably figure that trade press isn't really press and who the heck reads Communications Daily anyway? After all, it's not available online.

Heh heh heh.

I cannot provide an internet link or copy the entire relevant section without violating copyright. Nor would I want to do so. The folks at Comm Daily do good reporting, and if they chose not to make this stuff available online, so be it. Happily, however, principles of fair use allow me to report here a rather interesting story from the Wednesday March 12, 2008 edition (pages 7-8). David McClure, President of the United States Internet Industry Association, addressed his fellow telecom industry buddies at a conference in Monterey Califonia, where he had some very interesting things to say (for me at least) about his personal pick for the White House in 2008 (hint: It's not Obama) and his opinions about Kevin Martin — the supposedly wholly owned telco asset.

More below . . . . [Read More!]

I regret to disappoint my fellow Wetmachiner John Sundman and legions of of folks discovering telecom policy is incredibly sexy (a fact I mentioned in my very first Wetmachine post), but I really have nothing to add about the McCain/Iseman story. This is not Wonkette here folks.

Policy, sure. I can tell you what made this transaction so controversial. And it may even have some bearing on the next FCC, given that one of the folks involved was Susan Ness, the former FCC Commissioner whispered about as the most likely nominee to replace Kevin Martin if Clinton wins. It also, of course, involved Bill Kennard who, along with Reed Hundt, is advising Obama. So I suppose the policy might have some relevance here. But as for the “juicy stuff:”
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I may occasionally (O.K., more than occasionally) have some snarky things to say about the free market philosophies of my opposite numbers at places like CATO and Progress & Freedom Foundation. But what distinguishes them in my mind from industry shills and sock puppets is their ideological integrity. When they want everything deregulated, they really mean it. Not so the industry and its true sock puppets, who can spin on an ideological dime without the least regard for even the vaguest notions of consistency with their previous statements.

Case in point, this FCC complaint by the cable companies against Verizon for “retention marketing.” Mind you, these are the same folks that complain whenever the FCC even thinks about interfering with the “vibrant and competitive telecommunications market,” and who protest that enforcing the laws passed by Congress to require interoperable set top boxes and set a numeric limit on the number of subscribers they can have constitutes a “vendetta.” But, as usual, consistency is not exactly a strong point for industry. As I continually remind folks, industry does what is best for its bottom line, period. And here, it means using the big bad evil FCC to slap the telcos around.

Which brings me to the point I expound upon below. Too often, the industry gets to win by making this a fight about process and “level playing field” and confusing the issue. But what we really need to care about is what our actual policy IS. If we want to encourage competition because we prefer it to regulation of monopolies, then we damn well better make sure competition actually happens, which means subjecting the incumbents with market power (at least initially) to a very different set of regulations than the new entrants. For many years after the break up of AT&T, the FCC subjected AT&T to a set of regulations designed to keep it from using its position as the dominant long-distance carrier to prevent the new entrants like MCI and Sprint from attracting customers. The FCC did not worry if that was “fair” to AT&T to have different rules that prevented exercise of market power by a dominant firm. It said “hey, we want competition! That's about economic policy, not about being fair.”

Mind you, I don't expect my opposite numbers to agree. But they will at least have the virtue of consistency.

More below . . . . [Read More!]

(Sadly, the original version of this got lost in the disk failure we had Tuesday. So this is a somewhat shorter reconstruction.)

With both Republicans and Democrats interested in reforming the FCC for their own reasons, it seems a perfect time to crank out a new white paper on reforming the FCC. As you can see from the press release, Common Cause and my employer Media Access Project have released a new white paper called Puting the Public Back In Public Interest: Painless Reforms to Improve the FCC, authored by yr hmbl obdn't, fellow Wetmachiner Gregory Rose, and Common Cause's Jon Bartholomew. Astute readers with good memories will recognize many of the recommendations from previous posts and writings of mine, including this from this speech I gave back in 2003. Most of these issues have festered for years, for all that they have gained recent notoriety.

In the same vein, I draw attention to Matthew Lasar's piece, 5 Ways to Improve FCC.GOV, on his generally excellent FCC Blog Lasar's FCC Letter. Lasar's suggestions are good, and many of them are echoed in our white paper (although derived independently, great minds think alike and all that).

Coincidentally, a different piece by Matt, “Faux Celebrity Comments At the FCC,” triggered a serious question by Adam Thierer at the Progress and Freedom Foundation blog. Given that we have situations in which a single organization such as Parent's Television Council is able to generate thousands of identical comments from its members, and that others are using fake names, and that there are even allegations that NAB submitted false comments fake brief text comments opposing the Xm-Sirius merger, or used deceptive means to get people to send in such comments, is there any real value in making it easier for the public to file brief comments? Doesn't that just create opportunities for confusion and abuse, warping the regulatory process and shifting power away from the real public to the manipulators and unscrupulous?

Matt gave his answer here, in which he makes reference to what I call the “Alice's Restaurant” rule of public comments: If one commentor says 'my media sucks because of consolidation,' that's an outlier and you ignore it. If two people file, 'my media sucks because of consolidation,' then it's just tree huggin' liberals and you ignore it. But if two million people file such comments, that's data—because we've demonstrated enough people care to at least make a minimal effort to express their feelings.

To amplify a bit, I would certainly like to see anyone who submits fake comments designed to persuade the FCC that people support a particular position when they don't, either by forging their names and email addresses or obtaining these through deceptive means, should be subject to criminal penalties under 18 USC 1001. But I do not dismiss the ability of an organization to get its members to file a boatload of identical comments or complaints through a comment engine. This is the modern equivalent of the petition drive. In a previous generation, the determined citizen might spend a day in a mall parking lot or knocking door to door to get signatures on a petition in support of some candidate or in opposition to some law. Signing something in a parking lot to “send a message about global warming” or “show Washington you hate big government” takes about as much time and understanding as filling out the info in a standard “comment engine,” and tells us the same thing — a broad base of citizens cares at least enough to take a minute to send a message rather than just ignore it.

Policymakers have long experience with petitions and petition drives. They understand the difference between a petition with 10,000 names, 100 individual letters that talk about real life experiences, and the 5 people who take the trouble to actually call or make a visit to discuss their case. Each of these forms of contact provides a type of information, and decisionmakers weight it accordingly — or should.

In addition, as I went on at length after the media ownership vote, the entire regulatory process gains validity when the public perceives it has a meaningful way of communicating with regulators and can monitor the process. Taking brief text public comments in a a simple and straightforward fashion, and allowing the public to follow who files and how many people file, is an important aspect of this.

Finally, it reconfirms for those that have filed that they are not alone (or, perhaps, that they are), helping interested members of the public to organize and engage in discussion with each other. It provides a focal point for concerned citizens to act as citizens and make themselves heard in a way that goes beyond the mere ritual of voting. Even if public comments had no other value, it would be worth it for this benefit alone.

Which is why, I suppose, I've been such a fan of FCC reform for so many years. It's not just about getting better data and creating a process that everyone perceives as more open and fair. These are important. But it is also about something more vital. Ensuring that in our modern administrative state, when so much of our government in a democratic society seems beyond our control, any means by which we maintain the vital link between the government and the governed is to be cherished and nurtured. It reminds us that we are free people in the land of the free, with both the right ad the responsibility to participate in the government decisions that matter to us. We are not spectators in our own lives, nor helplessly awaiting the decisions of others. We are citizens, from whose consent all sovereignty arises, and without whose consent sovereignty is tyranny. When we speak, the FCC (and the rest of the federal government) owes it to us to listen.

Stay tuned . . . . .

So many people are mad at Kevin Martin these days, but for so many different things. He is either a “tool of industry” or “interfering with the market,” depending on whom you ask. And no one seems more confused about this than the ranking member of the House Commerce Committee, Joe Barton (R-Tx).
Mr. Barton understands all bout de-regulating. That's what good Republicans do, after all. But he cannot understand why Mr. Martin is making such trouble for the “highly competitive” cable industry. As reported in this article:

“It's been said that consistency is the hobgoblin of little minds,” said Rep. Joe Barton, R-Texas, the committee's senior Republican. “If that's the case, we could use a few hobgoblins at the FCC.”

Barton complained that Martin plans to ease the cross-ownership ban while doing little on other media ownership restrictions and is attempting to limit the number of subscribers one cable system can reach.

“It baffles me how the same FCC can appropriately eliminate regulations for some segments of industry because of increased competition, and at the very same time refuse to deregulate or even impose more regulation on segments of industry that are creating that very competition,” he said.

Democrats, of course, accept that Mr. Martin as a Republican should be a tool of industry. To the extent they wonder about any apparent inconsistencies, they attribute it to Martin being a shill for the telcos. This, of course, does not explain why Martin denied Verizon's request for deregulation in six major cities or why Martin told Verizon to bugger off on modifying C Block. But if he isn't an industry tool, why did he ram through the sale of Tribune and waive FCC regs so that Tribune could appeal in the DC Circuit and try to get the entire newspaper/broadcast cross-ownership ban repealed?

While armchair psychology and analysis based on shreds of available information is always a perilous past-time, I will argue below that Kevin Martin is actually extremely consistent in his decisions and his management style. I say this neither as a criticism or as praise. But pivotal to understanding the actions of the FCC and therefore to exercising my stock in trade of effective advocacy is trying to make some guess on what actually drives the current FCC Chairman in making decisions. Feld's Second Law of Public Policy states: “Public policy is made by human beings.” (OK, I know Clausewitz said it first about war, but the principle still holds.) So understanding the human beings making policy is a critical step in influencing policy — even if we understand them poorly.

Besides, it's fun.

Guesses below . . .
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