Category Archives: Infrastructure

Brief thoughts on today's FCC Net Neutrality announcement

Late last night, FCC Chairman Julius Genachowski made explicit what he’d been hinting for weeks–that he was going to call for a vote in December on the agency’s long-running net neutrality proceedings.

Today, the Chairman gave a speech outlining a new version of the rules he has circulated to fellow Commissioners, which will be voted on on Dec. 21, 2010..

The new order itself has not yet been made public, however, and the Chairman’s comments didn’t give much in the way of details.  The latest version appears to reflect the proposed legislation circulated before the mid-term recess by then-Commerce chair Henry Waxman.  That version, for those following the ball here, was itself based on the legislative framework proposed by Google and Verizon, which itself emerged from informal negotiations convened over the summer at the FCC.

So in some sense the agency is moving, albeit non-linearly, toward some kind of consensus.

I have a brief article this morning in the Orange County Register laying out the pros and cons of this latest iteration, to the extent that is possible without seeing the order.

The timing of today’s announcement, however, is significant.  This was Genachowski’s last chance to wrap up the proceedings before the new Congress , with its Republican House and more even Senate, clocks in.  Republicans on their own don’t have the votes to pass legislation that would have blocked the FCC from voting on net neutrality later, but Republican leaders had threatened to use their oversight authority to put additional pressure on the FCC not to enact new neutrality rules.

That might still happen, of course, and already today several Republican leaders have promised to do whatever they can do undo today’s developments.  Assuming the Commission approves the rule at its December 21, 2010 meeting, there’s also a strong likelihood of litigation challenging the rules and the FCC’s authority to issue them.

So this is not the end of the net neutrality soap opera by any stretch of the imagination.  If anything, it suggests a new chapter, one that will take the discussion farther away from the technical architecture of the Internet and the best interests of consumers and closer to pure political theater.

Updates to the media page

The fall has been filled with important developments in the technology world, and I continue to be a regular source for journalists as well as publishing frequent editorials and analyses of my own.  I’ve just posted another ten items to the Media Page of my website, including several articles I’ve written for CNET News.com, an election-day op-ed in Roll Call, legal analysis for The Wall Street Journal and a long review of “The Laws of Disruption” in the International Journal of Communications.  The accidents continue to pile up at the dangerous intersection of innovation and the law, the main theme of The Laws of Disruption.

Some highlights:

The U.S. Supreme Court heard arguments in EMA v. Schwarzenegger, which challenges California’s ban on violent video games on First Amendment ground.  My article for CNET explained why the timing of the case is significant, with implications for all new media enterprises.

The European Commission is preparing new legislation to guarantee its citizens a “right to be forgotten.  On CNET, I explain why that well-intentioned initiative could have disastrous consequences for the digital economy.

My election-day op-ed for Roll Call, the leading newspaper of Capitol Hill, urged Congress to stop the FCC’s dangerous plans to “reclassify” broadband Internet access and treat it like 1930’s-style telephone business.

My detailed analysis of Rep. Henry Waxman’s proposed net neutrality bill, a last-minute effort to resolve the long-running conflict before the election, was featured on The Wall Street Journal’s “All Things Digital.”

In the important Vernor decision, the Court of Appeals in California ruled that licensing agreements that deny users a right to resell copies of software are enforceable.  Though many viewed this decision as harmful to consumers, I explain why developments in the software industry have already relegated license agreements to the margins, in a controversial article for CNET News.com.

NextGenWeb, sponsored by the U.S. Telecom Association, interviewed me one of many recent visits to Washington.

As the new Congress prepares to convene in January, watch for more important developments.

Resurrecting the National Broadband Plan: Why is Washington Fighting a Winning Strategy?

I published an opinion piece today at CNET, calling on all tech stakeholders in Washington to stop the pointless quibbling and sniping about net neutrality, reclassification, and other side-show issues.  (I’m too depressed to list them here—but see “Fox-Cablevision and the Net Neutrality Hammer” for an example of just how degraded the conversation has become.)

Instead, why not focus on a positive message, one that has the potential for win-win-win-win?  For example, the National Broadband Plan, issued in March, eloquently made the case for a U.S. commitment to universal broadband adoption.  Not as a matter of gee-whiz futurism but in the interest of giving Americans “a better way of life.”

As a technology optimist, I happen to agree.  Broadband Internet provides users with much more than cute kitten videos and finding old friends on social networking sites (not that there’s anything wrong with these).  As the plan makes clear, it also gives them access to education and employment opportunities otherwise hard to find (and certainly at a much higher price), access to government services, public safety and better health care options. The Internet will play a key role in the development of a “smart” energy grid.

And as more urban countries with higher penetration rates and faster speeds have learned to their delight, the network effects of having everyone online generate all kinds of serendipitous positive returns.

Even better, achieving the goals of the NBP won’t require massive taxpayer spending, making it palatable to both Democrats and Republicans.  Most of the $350 billion it will cost to get 100 mbps speeds to 100 million Americans—a key benchmark of the plan—will come from private investment, much of it already planned for.

So moving forward with the Plan will improve the lives of ordinary citizens, make government more responsive and responsible, stimulate the economy, and help keep the U.S. competitive in a global information economy.  And it can be done without significant taxpayer expense or new regulatory overhead.

This is the feel-good story of the decade.  Come on, everybody!  We can use my barn.

It’s all in the plan. But given the strum and drang exerted over largely inside-the-beltway minutia, the NBP’s positive messages has been drowned out.

Case in point:  a recent report from the NTIA reveals that among the 25% of American homes that don’t have a single Internet user, the most frequently cited reason not to sign up for a broadband service is that they just don’t want it.  A full two thirds of the non-users, according to the report, “reported a lack of need or interest as their primary reason for not having broadband at home.”  Cost was a much lower factor.  Only four percent cited lack of availability.

It’s depressing and disappointing that so many of my fellow citizens haven’t gotten the message:  the Internet is cool, and broadband access will pay for itself many times over.

It’s also frustrating to the authors of the NBP, whose herculean efforts were unfairly and unduly overshadowed by the universal hand-wringing that followed the D.C. Circuit’s decision in the Comcast case, which came out just a few weeks later.  (For the record, NBP executive director Blair Levin agrees with legal scholars who don’t believe Comcast undermined the FCC’s ability to move forward with the plan itself:  “I think there is a lot of good stuff that can be done to advance the National Broadband Plan,” he recently told CNET’s Marguerite Reardon, “that doesn’t require any action from Congress.”)

In some sense the mid-term elections have provided the opportunity for all stakeholders—Congress, the FCC, lobbyists and advocacy groups—to resurrect the NBP and feature it as the central document in a national dialogue on technology policy.  It’s the right thing to do for the economy, and for individuals.  And in one of those rare harmonic convergences, it’s also politically expedient.  It’s positive!  It’s bi-partisan!  It’s high-tech!

So why isn’t anyone doing it?

Fox-Cablevision and The Net Neutrality Hammer

When the only thing you have is a hammer, as the old cliché goes, everything looks like a nail.

Net neutrality, as I first wrote in 2006, is a complicated issue at the accident-prone intersection of technology and policy.  But some of its most determined—one might say desperate—proponents are increasingly anxious to simplify the problem into political slogans with no melody and sound bites with no nutritional value.  Even as—perhaps precisely because—a “win-win-win” compromise seems imminent, the rhetorical excess is being amplified.  The feedback is deafening.

In one of the most bizarre efforts yet to make everything be about net neutrality, Public Knowledge issued several statements this week “condemning” Fox’s decision to prohibit access to its online programming from Cablevision internet users.  In doing so, the organization claims, Fox has committed “the grossest violations of the open Internet committed by a U.S. company.”

This despite the fact that the open Internet rules (pick whatever version you like) apply only to Internet access providers.  Indeed, the rules are understood principally as a protection for content providers.  You know, like Fox.

OK, let’s see how we got here.

The Fox-Cablevision Dispute

In response to a fee dispute between the two companies, Fox on Saturday pulled its programming from the Cablevision system, and blocked Cablevision internet users from accessing Fox programming on-line.  Separately, Hulu.com (minority owned by Fox) enforced a similar restriction, hoping to stay “neutral” in the dispute.  Despite the fact that “The Simpsons” and “Family Guy” weren’t even on this weekend (pre-empted by some sports-related programming, I guess), the viewing public was incensed, journalists wrote, and Congress expressed alarm. The blackout, at least on cable, persists.

A wide range of commentators, including Free State Foundation’s Randolph May, view the spat as further evidence of the obsolescence of the existing cable television regulatory regime.  Among other oddities left over from the days when cable was the “community antenna” for areas that couldn’t get over-the-air signals, cable providers are required to carry local programming without offering any competing content.   But local providers are not obliged to make their content available to the cable operator, or even to negotiate.

As cable technology has flourished in both content and services, the relationship between providers and content producers has mutated into something strange and often unpleasant.  Just today, Sen. John Kerry sent draft legislation to the FCC aimed at plugging some of the holes in the dyke.  That, however, is a subject for another day.

Because somehow, Public Knowledge sees the Fox-Cablevision dispute as a failure of net neutrality.  In one post, the organization “condemns” Fox for blocking Internet access to its content.  “Blocking Web sites,” according to the press release, “is totally out of bounds in a dispute like this.”  Another release called out Fox, which was said to have “committed what should be considered one of the grossest violations of the open Internet committed by a U.S. company.”

The Open Internet means everything and nothing

What “open Internet” are they talking about?  The one I’m familiar with, and the one that I thought was at the center of years of debate over federal policy, is one in which anyone who wants to can put up a website, register their domain name, and then can be located and viewed by anyone with an Internet connection.

In the long-running net neutrality debate, the principal straw man involves the potential (it’s never happened so far) for Internet access providers, especially large ones serving customers nationally, to make side deals with the operators of some websites (Google, Amazon, Microsoft, Yahoo, eBay, perhaps) to manipulate Internet traffic at the last mile on their behalf.

Perhaps for a fee, in some alternate future, Microsoft would pay extra to have search results from Bing given priority, making it look “faster” than Google.  That would encourage Google to strike a similar deal and, before you know it, only the largest content providers would appear to be worth visiting.

That would effectively end the model of the web that has worked so well, where anyone with a computer can be a publisher, and the best material has the potential to rise to the top.  Where even entrepreneurs without a garage can launch a product or service on a shoestring and, if enough users like it, catapult themselves into being the next Google, eBay, Facebook or Twitter.

What does any of this have to do with Fox’s activities over the weekend?

As Public Knowledge sees it, any interference with web content is a violation of the open Internet, even if that interference is being done by the content provider itself! Fox has programming content on both its own site and on the Hulu website, content it places there, like every other site operator, on a voluntary basis.

But, having once made that content available for viewing, according to Public Knowledge, it should be a matter of federal law that they keep it there, and not limit access to it in any way for any consumer anywhere at any time.  It’s only consumers who have rights here:  “Consumers should not have their access to Web content threatened because a giant media company has a dispute over cable programming carriage.”  (emphasis added)

On this view, it’s not content owners who have rights (under copyright and otherwise) to determine how and when their content is accessed.  Rather, it is the consumer who has an unfettered right to access any content that happens to reside on any server with an Internet connection.  Here’s the directory to everything on my computer, dear readers.  Have at it.

The “Government’s Policy” Explained

Indeed, according to PK, this remarkable view of the law has long-since been embraced by the FCC.  “We need to remember that the government’s policy is that consumers should have access to lawful content online, and that policy should not be disrupted by a programming dispute.”

Here’s how Public Knowledge retcon’s that version of “the government’s policy.”

Until this spring, the 2005 Federal Communications Commission (FCC) policy statement held that Internet users had the right to access lawful content of their choice.  There was no exception in that policy for customers who happened to have their Internet provider caught up in a nasty retransmission battle with a broadcaster.

Said policy statement that was struck down [sic] on April 6 by the U.S. Appeals Court, D.C. Circuit, when Comcast challenged the enforcement of the policy against the company for blocking users of the BitTorrent [sic].

The policy statement was based on the assumption that if there were a bad actor in preventing the consumer from seeing online content, it would be an Internet Service Provider (ISP) blocking or otherwise inhibiting access to content.  In this case, of course, it’s the content provider that was doing the blocking.  It’s a moot point now, but it shouldn’t matter who is keeping consumers away from the lawful content. (emphasis added)

Where to begin?  For starters, the policy statement was not “struck down” in the Comcast case.  The court held (courts do that, by the way, not statements of policy) that the FCC failed to identify any provision of the Communications Act that gave them the power to enforce the policy statement against Comcast.

That is all the court held.  The court said nothing about the statement itself, and even left open the possibility that there were provisions that might work but which were not cited by the agency.  (The FCC chose not to ask for a rehearing of the decision, or to appeal it to the U.S. Supreme Court.)

Moreover, there is embedded here an almost willful misuse of the phrase “lawful content.”  Lawful content means any web content other than files that users want to share with each other without license from copyright holders, including commercial software, movies, music, and documents.  None of that activity (much of what BitTorrent is still used for, by the way–the source of the Comcast case in the first place) is “lawful.”  The FCC does not want to discourage—and may indeed want to require—ISPs from interfering, blocking, and otherwise policing the access of that unlawful content.

Here, however, PK reads “lawful content” to mean content that the user has a lawful right to access, which, apparently, is all content—any file on any device connected to the Internet.

But “lawful content” does not somehow confer proprietary rights to consumers to access whatever content they like, whenever and however they like.  The owner of the content, the entity that made it available, can always decide, for any or no reason, to remove it or restrict it.   Lawful content isn’t a right for consumers—it just means something other than unlawful content.

Still, the more remarkable bit of linguistic judo is the last paragraph, in which the 2005 Open Internet policy statement becomes not a policy limiting the behavior of access providers but of absolutely everyone connected to the Internet.

The opposite is utterly clear from reading the policy statement, which addressed itself specifically to “providers of telecommunications for Internet access or Internet Protocol-enabled (IP-enabled) services.”

But that language, according to Public Knowledge, is just an “assumption.”  The FCC actually meant not just ISPs but anyone who can possibly interference with what content a user can access, which is to say anyone with a website.  When it comes to consumer access to content, it “shouldn’t matter” that the content provider herself decides to limit access.  The content, after all, is “lawful,” and therefore, no one can “[keep] consumers away” from it.

The nonsensical nature of this mangling of completely clear language to the contrary becomes even clearer if you try for a moment to take it to the next logical step.  On PK’s view, all content that was ever part of the Internet is “lawful content,” and, under the 2005 policy statement, no one is allowed to keep consumers away from it, including, as here, the actual owners of the content.

So does that mean that having put up this website (I presume the content is “lawful”), I can’t at some future date take it down, or remove some of the posts?

Well maybe the objection is just to selective limitation.  Having agreed to the social contract that comes with creating a website, I’ve agreed to an open principal (enforceable by federal law) that requires my making it freely and permanently available to anyone, anywhere, who wants to view it.  I can’t block users with certain IP addresses, whether that blocking is based on knowledge that those addresses are spammers, or residents of a country with whom I am not legally permitted to do business, or, as here, are customers of a company with whom I am engaged in a dispute over content in another channel.

But of course selective limitation of content access is a feature of every website.  You know, like the kind that comes with requiring a user to register and sign in (eBay), or accept cookies that allow the site to customize the user’s experience (Yahoo!), or pay a subscription fee to access some or all of the information (The Wall Street Journal, The New York Times), or that requires a consumer see not just the “lawful content” they want but also, side-by-side, advertising or other information that helps pay for the creation and upkeep of the site (Google, everyone else).

Or that allows a user to view a file but not to copy and resell copies of it (streaming media).  Or that limits access or use of a web service by geography (banking, gambling and other protected industries).   Or that require users to grant certain rights to the site provider to use information provided by the user (Facebook, Twitter) in exchange for use of the services.

Paradise Lost by the D.C. Circuit’s Comcast Decision

Or maybe just when Fox does it?

Under PK’s view of net neutrality, the Web is a consumer paradise, where content magically appears for purely altruistic reasons and stays forever to frolic and interact.  Fox can’t limit, even arbitrarily and capriciously, who can and cannot watch its programming on the Web.  It must make it freely available to everyone and anyone, or face condemnation by self-appointed consumer advocates who will, as prosecutor, judge and jury, convict them of having committed “the grossest violations” possible of the FCC’s open Internet policy.

That is, if only the law that PK believes represents longstanding “government policy” was still on the books.  For the real tragedy of the Fox-Cablevision dispute is that the FCC is now powerless to enforce that policy, and indeed, is powerless to stop even the “grossest violations.”

If only the D.C. Circuit hadn’t ruled against the FCC in the Comcast case, then the agency would, on this view, be able to stop Fox and Hulu from restricting access to Fox programming from Cablevision internet customers.  Or anyone else.  Ever.

That of course was never the law, and never will be.   More-or-less coincidentally, the FCC has limited jurisdiction over Fox as a broadcaster, but not to require it to make its programming available on the web, on-demand to everyone who wants to see it.

Fox aside, there is nothing in The Communications Act that could possibly be thought to extend the agency’s power to policing the behavior of all web content providers, which these days includes pretty much every single Internet user.

Nor did the Open Internet policy statement have anything to say about content providers, period.  If it had, it would have represented an ultra vires extension of the FCC’s powers that would have shamed even the most pro-regulatory cheerleader.  It would never have stood up to any legal challenge (First Amendment?  Fifth Amendment?  For starters…)

Not only does it matter but it certainly “should matter who is keeping consumers away from lawful content.”  When the “who” is the owner of the content itself, they have the right and almost certainly the need to restrict access to some or all consumers, now or in the future, without having to ask permission from the FCC.

And thank goodness.  An FCC with the power to order content providers to make content available to anyone and everyone, all the time and with no restrictions, would surely lead to a web with very little content in the first place.

Who would put any content online otherwise?  Government agencies?  Not-for-profits?  Non-U.S. users not subject to the FCC?   (But since their content would be available to U.S. consumers, who on the PK view have all the rights here, perhaps the FCC’s authority, pre-Comcast, extended to non-U.S. content providers, too.)

Not much of a web there.

No one Believes This—Including Public Knowledge

The wistful nostalgia for life before the Comcast decision is beyond misguided.  No proposal before or since would have changed the fundamental principal that open Internet rules apply to Internet access providers only.

Under the detailed net neutrality rules proposed by the FCC in 2009, for example, the Policy Statement would be extended and formalized, but would still apply only to “providers of broadband Internet access service.”  Likewise the Google-Verizon proposed legislative framework.  Likewise even the ill-advised proposal to reclassify broadband Internet access under Title II to give the FCC more authority—it’s still more authority only over access providers, not just anyone with an iPhone.

(Though perhaps PK is hanging its hopes on some worrisome language in the Title II Notice of Inquiry that might extend that authority, see “The Seven Deadly Sins of Title II Reclassification.”)

Public Knowledge has never actually proposed its own version of net neutrality legislation.  So I guess it’s possible that they’ve imagined all along that the rules would apply to content providers as well as ISPs.

Well, but the organization does have a “position” statement on net neutrality.  And guess what?  It doesn’t line up with their new-found understanding of the 2005 FCC Policy statement either.   Public Knowledge’s own position on net neutrality addresses itself solely to limits and restrictions on “network operators.”   (E.g., “Public Knowledge supports a neutral Internet where network operators may offer different levels of access at higher rates as long as that tier is offered on a nondiscriminatory basis to every other provider.”)

So apparently even Public Knowledge is among the sensible group in the net neutrality debate who reject the naïve and foolish idea that “it shouldn’t matter who is keeping consumers away from the lawful content.”

Did the rhetoric just get away from them over there, or are those who support Public Knowledge’s push for net neutrality really supporting something very different–different even than what the organization says it means by that phrase?  Something that would extend federal regulatory authority to every publisher of content on the web, including you?

I’m not sure which answer is more disturbing.

The Net Neutrality Sausage Factory Ramps up Production

My article for CNET News.com this morning analyzes the “leaked” net neutrality bill from Rep. Henry Waxman, chair of the House Energy and Commerce Committee.  I put leaked in quotes because so many sources came up with this document yesterday that its escape from the secrecy of the legislative process hardly seems dramatic.  Reporters with sources inside Waxman’s office, including The Hill and The Washington Post, expect Waxman to introduce the bill sometime this week.

The CNET article goes through the bill in some detail, and I won’t duplicate the analysis here.  It is a relatively short piece of legislation that makes limited changes to Title I of the Communications Act, giving the FCC only the authority it needs to implement “core” regulations that would allow the agency to enforce violations of the open Internet principles.

With a few notable exceptions, the Waxman bill mirrors both the FCC’s own proposed rulemaking from last October (still pending) as well as the Google-Verizon legislative framework the two companies released in July.  All three begin with the basic open Internet rules that originate with the FCC’s 2005 policy statement, with some version of a content nondiscrimination rule and a transparency rule added.    (There’s considerable controversy over the wording of the nondiscrimination rule; none about transparency.)

The Waxman draft would sunset at the end of 2012.  And it asks the FCC to report to Congress sooner than that if any additional provisions are required to implement key features of the National Broadband Plan, which has sadly been lost to the tempest-in-a-teapot wrangling over net neutrality before and since it was published.

Many commentators who are already condemning Waxman for selling out “real” net neutrality are upset over provisions—including the sensible call for case-by-case adjudication of complaints rather than the fool’s errand of developing detailed rules and regulations in advance—that appear in all three documents.  They either don’t know or don’t care that in that regard Waxman’s bill breaks no new ground.

Where the bill differs most is its treatment of wireless broadband.  The FCC’s October NPRM, albeit with reservations, ultimately concluded that wireless should not be treated any differently than wireline broadband.  Google-Verizon reached the opposite conclusion, encouraging lawmakers to leave wireless broadband out of any new rules, at least until the market and the infrastructure that supports it become more stable.

Waxman’s draft calls for limited application of the rules to wireless broadband, in particular prohibiting carriers from blocking applications that compete with their voice or video offerings.  But it isn’t clear if that prohibition refers to voice or video offerings over wireless broadband or extends to products (digital voice, FIOS, UVerse) that the wireless carriers offer on their wireline infrastructures.

And the draft also carves out an exception to that rule for app stores, meaning carriers can still control what apps its customers download onto their wireless devices based on whatever criteria (performance, politics, prudery) the app store operator uses.

If net neutrality needs federal legislation and federal enforcement (it does not), then this bill is certainly not the worst way to go about it.  The draft shows considerable evidence of horse-trading and of multiple cooks in the kitchen, leaves confusing holes and open questions, and, so far, doesn’t even have a name.  But at least it explicitly takes Title II reclassification of broadband Internet access, the worst idea to surface in the course of this multi-year debate, off the table.

Reading the draft makes me nostalgic for the “legislative process” course I took in law school with long-time Washington veteran Abner Mikva, who has served in all three branches over his career.  There was the official version of the legislative process—the “Schoolhouse Rock” song, for people of a certain generation—and then there was what really happened.  (See also the classic Simpsons episode featuring a helpful janitor who “resembled” Walter Mondale, “Mr. Spritz Goes to Washington.”)

Beyond the text, in other words, is the shadow theater.  Why is Waxman, a strong net neutrality supporter, leading the charge for a bill that gives up much of what the most extreme elements have demanded?  (Watch for the inevitable condemnation of Waxman that will follow the introduction of the bill, and for Tea Party opposition to any Republican support for it.)  Why has FCC Chairman Julius Genachowski expressed appreciation that Congress is working on a solution, when his own agency has in theory already developed the necessary record to proceed?  Why introduce a bill so close to adjournment, with election results so uncertain?

I have my theories, as does every other policy analyst who covers the net neutrality beat.  But predicting what will happen in politics, as opposed to technology, is a losing proposition.  So I’ll just keep watching, and trying to point out the most egregious misstatements of fact along the way.