Hurricane Michael A Wake Up Call On Why Total Dereg of Telecom A Very Bad Idea.

Readers of Harry Potter should be familiar with Cornelius Fudge, the Minister of Magic who refuses to believe Voldemort will return because believing that would require taking precautions and generally upsetting lots of powerful and important people. Instead of preparing for Voldemort’s return, Fudge runs a smear campaign to discredit Potter and Dumbledore, delaying the Wizarding World from preparing to resist Voldemort until too late.

 

I was reminded of this when I read Federal Communications Commission (FCC) Chairman Ajit Pai’s statement of frustration with the slow pace of restoring communications in the Florida in the wake of Hurricane Michael. Pai explicitly echoes similar sentiments of Florida Governor Rick Scott, that carriers are not moving quickly enough to restore vital communications services. Pai is calling on carriers not to charge customers for October and to allow customers to switch to rival carriers without early termination fees.

 

What neither Pai nor Scott mention is their own roll in creating this sorry state of affairs. Their radical deregulation of the telephone industry, despite the lessons of previous natural disasters such as Hurricane Sandy, guaranteed that providers would chose to cut costs and increase profits rather than invest in hardening networks or emergency preparedness. That is how markets actually work in the real world (as opposed to in the delightful dereg fantasy land dreamed up by hired economists). But rather than take precautions that might annoy or upset powerful special interests, they chose to mock the warnings as the panic of “Chicken Little, Ducky Lucky and Loosey Goosey proclaiming that the sky was falling.”

 

Now, however, the Chicken Littles come home to roost and, as predicted, private market incentives have not prompted carriers to prepare adequately for a massive natural disaster. This result was not only predictable, it was predicted — and mocked. So now, like Cornelius Fudge, Chairman Pai and Governor Scott find themselves confronted with the disaster scenario they stubbornly refused to believe in or safeguard against. And while I do not expect this to change Pai’s mind, this ought to be a wake up call to the 37 states that have eliminated direct regulatory oversight of their communications industry that they might want to reconsider.

 

Still, as Public Knowledge is both suing the FCC to reverse its November 2017 deregulation Order, and has Petitioned the FCC to reconsider its June 2018 further deregulation Order, perhaps the FCC will take this opportunity to rethink the certainty with which it proclaimed that carrier’s have so much incentive to keep their customers that they would never cut corners and risk service going down. Or perhaps Congress will now pay attention and decide that their constituents need enforceable rights and real protections rather than promises and platitudes.

 

I provide a lot more detail below.

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We Need To Fix The News Media, Not Just Social Media Part I

A substantially similar version of this appeared on the blog of my employer, Public Knowledge.

Focusing blame Google and Facebook for the decline of in-depth news reporting and print journalism ignores the real and long-standing problems that lie at the heart of our troubled relationship with corporate media. Insisting that these companies should fund existing corporate media, or that we should solve the problem by allowing even more consolidation, would be a disaster for democracy.

Almost 20 years ago, I left private practice to work for a nonprofit law firm called Media Access Project (MAP). MAP focused on promoting policies designed to encourage the production of diverse news and views in the electronic media. When I joined MAP in July of 1999, we were facing a crisis of consolidation in the news industry, the rise of polarization, and the dissemination of “fake news” for both commercial and political purposes. Academics and pundits lamented the death of serious journalism, the tyranny of the ever faster news cycle, and the poisoning public discourse with increasingly coarse, angry, and vile commentary that pandered to people’s worst instincts. A new class of wildly popular and increasingly influential pundits sowed distrust for the “MSM” (“mainstream media”) and denounced anyone who disagreed with them as enemies of freedom. Meanwhile, the increasingly vertically and horizontally concentrated news industry cut costs by dramatically cutting reporting staff and reporting resources, and chased “synergies” by using the news to shamelessly cross-promote their entertainment and publishing products. News coverage was increasingly turning into “infotainment” (or, more politely, “soft news”). To the extent political coverage existed outside the polarized world of political punditry, it was reduced from genuine analysis to “horse race” coverage. No one in the news, it seemed, wanted to discuss actual substance – only which political party or politician was “winning” or “losing.” Even worse, a new cottage industry emerged to create and promote “fake news” in the form of Video News Releases and national syndicated broadcasts designed to appear both local and live.

Small wonder that audiences for news increasingly declined, and distrust of the media reached historic levels. To make matters even worse, the “cure” proposed by the Federal Communications Commission (FCC) was to relax the remaining broadcast ownership rules, inviting further consolidation. Only by increasing consolidation, the industry argued, could the news industry survive in the face of fragmenting audiences, emerging competition from the internet, and declining newspaper revenues.

That was back in the late 1990s and early 00s. To quote Yogi Berra, “it’s déjà vu all over again.” Except this time, instead of blaming “the internet” and the public’s supposed lack of interest in real news, people now blame Google and Facebook. Why? Because they are big. Because they derive their revenue from digital advertising at a time when print journalism has seen revenue from classified advertising drop precipitously low. Because “Google and Facebook, we hates it precious!,” and one should never miss an opportunity to link a problem to Google and Facebook and proclaim “delenda est!” Likewise, the proposed remedies have a very familiar feel. Allow the news media to consolidate further by relaxing the FCC ownership rules and creating exemptions to existing antitrust law, and/or preserve their historic revenue stream from classified ads (either by destroying Google and Facebook or making them pay tribute to existing media companies). These solutions have particular appeal to incumbent publishers, as they simultaneously absolve the existing media of any responsibility for the current state of journalism and cement the dominance of the existing corporate media giants.

It is precisely because the stakes are so high, however, that we need to look with extreme skepticism at proposals primarily designed to prop up the current consolidated and dysfunctional media landscape. If we want to address the very real problems created by a dysfunctional media, we need to separate which of these problems can properly be attributed to dominant platforms and which to structural problems in the traditional news industry. Additionally, legitimate fears of the ability of dominant platforms to act as gatekeepers, or concerns about their outsized influence on the economics of news production and dissemination, should not justify solutions that destroy the extremely important role these platforms have played – and continue to play – in civic engagement and enhancing the creation of new and independent outlets for news.

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Stoping the 5G Digital Divide Before It Happens.

About 10 years ago, the telcos and the cablecos argued that they needed “franchise reform” to deploy fiber to the home high speed broadband. Anyone offering cable services (which, at the time, were a necessary part of any bundle including broadband — yup, times change) needs to get a franchise. At the time, all franchises were local. They also usually required the franchisee to serve the entire franchise area with same quality service. This requirement to serve the entire service area with the same quality service is called an “anti-redlining” provision. It is designed to ensure that providers of service do not avoid traditionally unserved communities (particularly communities of color), who were on the wrong side of the “red line” drawn by real estate developers to separate the whites only neighborhoods from the “colored” neighborhoods. (For more info, see this clip from Adam Ruins The Suburbs.) While we no longer have laws mandating segregation, the combination of stereotypes about urban neighborhoods dominated by people of color, combined with the unfortunate economic reality that non-whites systemically earn lower incomes than whites often means that providers simply ignore these neighborhoods when they offer services and focus investment on whiter (and wealthier) areas. Anti-redlining laws are designed to prevent that from happening.

 

To return back to the mid-00s, telecos (later joined by cable cos demanding a level playing field) pushed states to reform their franchise laws to (a) replace local franchising with state franchising; and, (b) eliminate most of the requirements of the franchise — including eliminating the anti-redlining provisions. The carriers argued that OF COURSE they intended to provide FTTH everywhere, including communities of color. But if they had to deal with local franchise authorities dictating deployment schedules and demanding all sorts of conditions to get a franchise, then — gosh darn it — they just would not be able to invest in FTTH no matter how much they wanted to do so. Although I and my then employer Media Access Project worked with the handful of local and national orgs fighting repeal of local franchises generally and anti-redlining provisions specifically, we lost bigly.

 

Today, I am once again feeling the Cassandrefreude. As predicted 10 years ago, in the absence of anti-redlining provisions, carriers have not invested in upgrading their broadband capacity in communities of color at anything close to the same rate they have upgraded in wealthier, whiter neighborhoods. As a result, the urban digital divide is once again growing. It’s not just that high-speed broadband is ridiculously expensive, although this is also serious barrier to adoption in urban areas. It’s also that in many low-income and predominantly non-white neighborhoods, speeds on par with those offered in wealthier and whiter neighborhoods are not even available.

 

This problem is further compounded by the belief that we have solved the problem of urban deployment and the only places where deployment (as opposed to simply cost of access) remains an issue is in rural America. But while the problems in rural America are very real, we need to recognize that the digital divide problem is actually growing in urban areas as carriers rush to provide gigabit speed in some neighborhoods while leaving other neighborhoods in the digital dust.

 

With the focus on 5G deployment, however, we have a rare opportunity to avoid repeating past mistakes. Just once, just once, we could actually take steps to prevent the inequality before it happens.

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“A Woman of Valor Who Can Find?” Farewell to Commissioner Mignon Clyburn.

This week has been the going away for Chairwoman Mignon Clyburn, often called “the Conscience of the Commission.” Not some soppy, Jiminy Cricket-style conscience sitting helplessly on your shoulder pleading and wheedling to try to get you to be good. Clyburn has been a conscience that kicks ass and takes names. The fact that, despite these hyper-partisan times, so many of her Republican colleagues and former colleagues were positively clamoring at her official FCC send off to praise her with genuine warmth for her empathy, graciousness and passion proves (as I once said about Jim Cicconi, who came out of retirement to add his own praise at Clyburn’s official farewell), you can be extremely effective without being a total jerk.

 

Many people understand the duty of public service. But for Mignon Clyburn, it is a calling.

 

As you can tell, I’m a big fan. If you wonder why, read her going away speech from the appreciation/going away party the public interest community held for her last Wednesday — although simply reading the words cannot convey the stirring passion and eloquence with which she read it. Too many people who care deeply about social justice dismiss communications law as a wonky specialty. Those with the passion to follow the instruction of the prophet Isaiah to “learn to do good, seek justice, comfort the oppressed, demand justice for the orphan and fight for the widow” often chose to go into fields where this struggle is more obvious such as civil rights or immigration law. But as Clyburn made clear through both words and actions, we desperately need this same passion in communications law. “The communications sector does not just intersect with every other critical sector of our economy, society, and democracy; it is inextricably intertwined. Healthcare, education, energy, agriculture, commerce, governance, civic engagement, labor, housing, transportation, public safety—all rely on this modern communications infrastructure. Any weaknesses or shortcomings, systemic or isolated, will have ripple effects that can be difficult to discern, but are unmistakable in their impact.”

 

Some reflections on Clyburn’s tenure below . . .

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UPDATE: Net Neutrality Repeal Goes Into Effect June 11 (Absent CRA Passage Or Anything Else).

We now have an official date on when the 2017 Net Neutrality repeal will go into effect. The Government Printing Office now gives a preview of what will get published in Fed Reg 24 hours in advance. They announced today that tomorrow will have both the OMB approval of the new and undermined transparency rule and the FCC notice that things will officially go into effect in 30 days from tomorrow.

 

Apparently stung by being called out on this peculiar process, Pai has issued a new and exciting statement totally doubling down on everything he has ever said about the terribleness of the previous rules and the awesomeness of our new and exciting Internet freedom. You can read it here. (I have got to believe this Administration at least borrows speech writers from Russia. This reads like something from Pravda in the Cold War announcing “glorious triumph of new 5 year plan in crushing capitalist running dogs.”) Commissioner Rosenworcel has a much shorter and rather less bombastic counterpoint here.

 

Stay tuned . . .

 

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How Popular Is Net Neutrality? Opponents Have to Hide They Are Campaigning Against It.

Nothing brings home the peculiar nature of “the D.C. Beltway Bubble” than listening to the local news station WTOP. Lets start with the fact that our local 24-hour news station is actually the most popular radio station in the D.C. market. It’s also fun when some incident around the White House or the Capital ends up sequentially on the national news, the local news, and the traffic report.

 

But what really sets D.C. apart is our advertisements. The political ads never stop. Particularly when a major vote is about to happen — such as the upcoming vote in the Senate on S. J. Res. 52, aka the “net neutrality CRA,” aka the repeal of the FCC’s net neutrality repeal. Today (May 9), Senator Markey will file the resolution to force the vote — which is expected to actually happen next week. So, naturally, we are getting all kinds of ads from broadband companies and their various associations (e.g., Broadband for America) trying to push the public to get their Senators to vote against the resolution.

 

The problem for the anti-net neutrality folks, however, is that network neutrality remains enormously popular with the general public. Which leaves these groups trying to rally the public with a problem. Die-hard anti-net neutrality folks like Rep. Marsha Blackburn may think “let ISPs discriminate so that your online experience can be more like going through a TSA security line before flying” is a selling point, people who actually sell stuff for a living recognize that “make your browsing experience like your airline experience with long waits and hidden fees” is kind of a loser.  So if you just advertise “The Senate is considering a resolution to restore the network neutrality rules the FCC repealed last December, call your Senator today and tell them to stand up for ISP freedom to throttle competitors charge new fees ‘innovate’!” — odds are good you will actually drive lots of people to call their Senator and tell them to vote for the resolution and restore net neutrality. (Which, btw, you can do here.) So how do you campaign against network neutrality without actually telling the public you are voting against restoring the net neutrality rules?

 

UPDATE: Jay Cassono has this piece in Medium providing details on a similar scam opposing net neutrality while pretending to be in favor.

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What You Need To Know About Repealing The Repeal of Net Neutrality — How The CRA Works.

There is a great deal of excitement, but also a great deal of misunderstanding, about the effort to “repeal the repeal” of net neutrality using the Congressional Review Act (CRA). On the one hand, we have folks who are confused by the enormous progress made so far and think that we are just one vote shy of repealing the repeal. On the other extreme, we have the folks declaring the effort totally doomed and impossible from the start.

 

You can read the relevant statutory provisions here at 5 U.S.C. 801-08. Briefly, a “Resolution of Disapproval” (which we refer to as a “CRA” rather than a “CRD” just to confuse people) must pass both the Senate and the House (in either order) and then be signed by the President like any other piece of legislation. If the President vetoes Congress may override the veto with a 2/3 vote as it can with any other vetoed legislation. You might think that this makes it impossible for the minority party to get legislation passed. But the CRA was designed to allow a majority of members to pass a Resolution of Disapproval over the objections of the leadership and on a bare majority (so it circumvents the filibuster). And while yes, it must still get past the President, there are reasons to think that is not as impossible as some folks think.

 

 

Right now, the action has been in the Senate, where Minority Leader Chuck Schumer has announced that all 47 Democrats (and the 2 independents who caucus with them) will vote for the CRA. With Republican Susan Collins (R-ME) joining her fellow Senator from Maine Angus King (I-ME), that makes the total number of yes votes 50. So if Dems find one more “yes” vote in the Senate, they can clear that hurdle. But while this is extraordinary news in a very short period of time (technically, it is still too early to even introduce a CRA on the FCC’s net neutrality vote, since the item has not been published in the federal register) — we still have a long way to go to get this over the finish line.

 

But, just to provide some historic perspective. Back in 2003, the nascent (and totally unanticipated by anybody — especially anybody with any experience in media policy) media reform movement rose up against the roll back of all media ownership rules by then-FCC chair Michael Powell. Republican FCC, Republican Congress, Republican President — all supportive of the roll back and big deregulators. Nevertheless, against all odds, we managed to push through a partial roll back by freezing the national ownership limit at 39% (which, not by coincidence, was the ownership level of the largest holding companies — News Corp. and Viacom — as seen in this West Wing episode). So yeah, sometimes the universe give us some long-shot unexpected surprises.

 

I discuss the details of a CRA, and why I think we can win this (and even if we don’t, why it still works in our favor overall), below. In the meantime, you can go to this Public Knowledge resource page to contact your Senators and Representative directly and push them to vote for the Net Neutrality CRA.

 

UPDATE: Matt Schettenhelm pointed out to me that while 30 Senators bypases the Committee and gets on the calendar, you still need to win a motion to proceed before debate and final up down vote. See this article here. I’ve corrected this below.

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The History of Net Neutrality In 13 Years of Tales of the Sausage Factory (with a few additions). Part I

I keep being asked by people “Harold, can you please summarize the last 20 years of net neutrality for me while I stand on one foot?” Usually I answer: “do not do unto other packets what you find hateful for your favorite bitstream. The rest is commentary — located at 47 C.F.R. Part 8.” Alternatively, I send them to John Oliver’s 2017 piece on net neutrality. Or, if you want the longer story going back to the 1960s/70s, you can read this excellent piece by Tim Wu (who invented the term “net neutrality” in the first place).

 

But, as I’ve mentioned more than a few times in recent weeks, I’ve been doing this issue for a very, very long time. In fact, pretty much since the first time the question of how to classify cable modem service came up in 1998. So, in the spirit of “end of year montages,” I will now take you on a brief tour of the history of net neutrality at Tales of the Sausage Factory (with a few outside link additions) from my first post on the Brand X case back in 2004 to June 2016, when the D.C. Circuit affirmed the FCC’s 2015 Reclassification and Net Neutrality Order.

 

Although I suppose you could read the version I wrote about this in December 2015 to bring everyone up to date before the last court fight. Have I mentioned I’ve been doing this for a long, long time now and am repeating myself an awful lot? That’s why I spend more than 5000 words here and only get up to the beginning of 2009.

 

Prepare you favorite montage music and see more below . . .

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How DEA Got It’s Revenge For Getting Called On Abusing Authority — And Why This Will Make Things Like Civil Asset Forfeiture Reform Harder

I love neither DEA or PhARMA, but the business about Congress passing a last year to make it “harder for DEE to stop drug companies selling drugs to drug dealers” is a load of crap. Or, perhaps more accurately, it is a brilliant example of how the DEA and other police organizations retaliate against lawmakers who curb their authority when they abuse it, and how an easily manipulatable press and easily manipulatable public eats it up with a spoon.
 
Here’s the infamous 2016 final statute. If you click through to the text, and then look at the statute amended (21 U.S.C. 824), you will observe that what the 2016 statute did was require that before DEA arbitrarily stripped companies of their license to ship controlled substances (like opioids), they had to (a) identify what law they thought was being broken, and (b) had to show that there was a real likelihood the drugs would be diverted for misuse, rather than just arbitrarily decide that hospital X or pharmacy Y had already received “too much” Oxycontin for the month. 
 
As usual, explaining something like this is complicated. Short version, the bill curbed a bunch of nasty abuses by the DEA. Of course PhARMA spent millions to get it passed. DEA is obscenely powerful and their abuses in this regard are fairly disruptive and legendary in the pharmacy and hospital world. And the thorough nature of their revenge here shows how DEA gets away with it. By spinning a bill that curbed DEA’s extra-legal abuses as a corrupt bargain between the hated drug makers and corrupt members of Congress, DEA has made it very clear what happens when you cross them. If you wonder why so few lawmakers want to take on issues like police brutality, civil asset forfeiture, or even horrendously price gouging prison phone rates, this is why.
I explain in great detail below.

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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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