June 2008

[Note: This is the second in a series of essays about the legacy of the Supreme Court's FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary on July 3rd. Part 1, a general overview of the issue, is here.]

This morning I attended an excellent Freedom Forum conference on “Indecency & Violence in the Media: FCC v. Pacifica 30 Years Later.” At the event, Lili Levi of the University of Miami School of Law delivered a terrific address entitled “A Short History of the Indecency & Media Violence Wars.” (Incidentally, she is also the author of a highly recommended paper on the topic that is available on SSRN: “The FCC’s Regulation of Indecency.”

Prof. Levi sketched out what she called the “5 Eras of FCC Indecency Enforcement.” Below I will summarize the major developments / trends from each era that she outlined for us today:
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Next Thursday, July 3rd will mark the 30th anniversary of the Supreme Court’s landmark First Amendment decision, FCC v. Pacifica Foundation. Sadly, but somewhat ironically, the anniversary of this decision comes just a few days after we lost America’s greatest modern social satirist George Carlin, whose infamous “seven dirty words” monologue prompted the Supreme Court’s Pacifica decision. After a Pacifica Foundation radio station aired Carlin’s monologue and the FCC took action against that station, a court battle ensued regarding whether the agency had the authority to censor “indecent” content on broadcast radio and television stations.

Unfortunately, when the Supreme Court handed down its Pacifica decision 30 years ago, the First Amendment lost. By a narrow 5-4 vote, the court held that the FCC could impose fines on broadcasters who aired indecent content during daytime and early evening hours. The Court used some rather tortured reasoning to defend the proposition that broadcast platforms deserved lesser First Amendment treatment than all other media platforms. The lynchpin of the decision was the so-called “pervasiveness theory,” which held that broadcast speech was “uniquely pervasive” and an “intruder” in the home, and therefore demanded special, artificial content restrictions.

Over the course of the next week, I plan on posting some thoughts about that twisted logic and the legacy of the Pacifica decision in general. In part 2, I’ll sketch out the broad outlines of FCC indecency enforcement over the past 70 years. In part 3, I’ll be highlighting some of the original deficiencies of the “pervasiveness doctrine.” Part 4 will highlight the irrelevancy of Pacifica and the pervasiveness doctrine in light of recent technological developments. These (and potentially other) installments will highlight why Pacifica was always bad law and is even more misguided and unjust in light of recent marketplace developments.

I don’t even know where to start with this AFP wire story. The writer obviously doesn’t understand that the IPv4 address shortage has nothing to do with top-level domain expansion:

With the stock of available web addresses under the current IPv4 protocol set to run out by 2011, ICANN has been under pressure to find a solution for burgeoning demand.

In theory, an infinite number of new domain names could be born, which would prove a boon for ICANN because it would receive payment for each one.

I’m half-tempted to compile a list of factually-inaccurate technology reporting from major media outlets, just so I can forward it to sanctimonious “journalists” whenever they attack the accuracy of blogs.

Human Events’ John Gizzi is reporting today that House Speaker Nancy Pelosi “signalled her strong support” for revival of ‘The Fairness Doctrine,’” yesterday at a breakfast meeting hosted by the Christian Science Monitor.  The report sparked a flurry of activity by supporters of Rep. Mike Pence’s stalled Broadcaster Freedom Act, which would permanently ban re-institution of the regulation.  

The reaction to Pelosi’s comment is rather surprising, given that its hardly news that the Democratic leader would support the doctrine.   Last year, in fact, it was reported that she would “aggressively” pursue reinstituting the doctrine.   That never happened, and in fact the House ended up voting for a one-year appropriations rider banning the FCC from reviving it.   

News or not, the renewed attention for the Pence effort is welcome.   Still, supporters of free speech shouldn’t fool themselves into thinking that this is the whole of the battle, or even the main theater of conflict.  In truth, while many still give lip service to the Fairness Doctrine, the real battle over media regulation is moving forward — with closed lips — elsewhere.   Free Press and the Center for American Progress laid out the strategy last year in a report on how to balance the “conservative bias” on talk radio.   Their recommendations ranged from media ownership restrictions to vague “public interest” requirements enforced by the FCC.  Tellingly, the report dismissed the Fairness Doctrine itself as ineffective.

The battle over stealth fairness regulation may already underway at the FCC, which has already launched a proceeding to consider imposing rules on broadcasters to ensure local content and diversity on radio and TV, giving regulators renewed powers to control what is said and heard.     And, as Cord Blomquist has pointed out: “Localism will compel speech of which FCC Commissioners … approve. In a world of limited broadcast hours, compelling one sort of speech means sacrificing speech of another, effectively censoring speech.”

We’ve heard that song before.

Global handset manufacturing giant Nokia has purchased the shares they didn’t already own in Symbian, Ltd., the company formed in 1998 as a partnership among Ericsson, Nokia, Motorola and Psion and the developer of the Symbian mobile operating system, by far the world’s leading OS for “smart mobile” phones with 67% of the market, followed by Microsoft on 13%, with RIM on 10% (source).

But wait, there’s more (per Engadget)!

Here’s where it gets interesting, though: rather than taking Symbian’s intellectual private for Nokia’s own benefit, the goods will be turned over to the Symbian Foundation, a nonprofit whose sole goal will be the advancement of the Symbian platform in its many flavors. Motorola and Sony Ericsson have signed up to contribute UIQ assets, while NTT DoCoMo (which uses Symbian-based wares in a number of its phones) will be donating code as well.

Other Symbian Foundation members include Texas Instruments, Vodafone, Samsung, LG, and AT&T (yep, the same AT&T that currently sells precisely one Symbian-based phone), so things could get interesting. The move clearly seems to be a preemptive strike against Google’s Open Handset Alliance, LiMo, and other collaborative efforts forming around the globe with the goal of standardizing smartphone operating systems; the writing was on the wall, and Symbian didn’t want to miss the train. Total cash outlay for the move will run Nokia roughly €264 million — about $410 million in yankee currency.

Other reports note that the Symbian Foundation will eventually take Symbian open source, and that this move is as much as response to Apple’s closed iPhone platform as it is to Gogole’s open Android and LiMo platforms.  (Although it is intriguing to note that AT&T, Apple’s exclusive U.S. partner for the iPhone, is among the backers of the new Symbian Foundation, perhaps indicating that even AT&T is hedging its bets.)

The fact that we will soon see three open source platforms (counting Google’s Android and LiMo) competing for market share provides yet another measure of the exceptionally high degree of competition in the wireless industry.  Continue reading →

Are small businesses empowered or encumbered by online advertisements? That was the gist of today’s hearing of the House Small Business Committee on Internet ads.

Rep. Charlie Gonzalez ran the hearing (you can watch it here on YouTube) and started off with how a book called “The Search” by John Battel inspired him to learn more about online ads. He introduced the concept of the microbusiness, which he credited to the MicroEnterprise Journal.

4 of the 5 witnesses were businessmen, so there was an apparent disconnect when Rep. Gonzalez asked the more difficult public policy questions: how do trademark protections affect search ads? Should Congress be concerned about Google/Yahoo? Or a potential Microsoft/Yahoo deal?

What was surprising is the amount of love that gushed toward gigantic Google from these small business persons. But Richard Lent of AgencyNet, a consulting firm, tempered his comments by saying that the op-out rights of consumers, making sure minors aren’t inappropriately targeted, phishing, and instituting limits on data retention were all important.

Charter communications officially announced plans to back-off its deal with NebuAd to monitor the traffic of subscribers for ad-delivery purposes. Yet the witnesses liked the ability to better target potential customers. But as a Washington Post article describes, Rick – creator of list to block ads called EasyList — doesn’t like it! His disdain for ads is a common consumer feeling that Internet ads still must overcome.

MIT’s Technology Review has a great review of a new biography of Georges Doriot (Wikipedia) by Businessweek Editor Spencer E. Ante entitled, Creative Capital: Georges Doriot and the Birth of Venture Capital.  Born in France, Doriot fought in World War I, then studied at Harvard Business School, served as director of the U.S. military’s Military Planning Division during World War II as a brigadier general, and in 1946 launched American Research and Development Corporation (ARD) as the first publicly owned venture capital firm.

Doriot’s legacy looms large today, even if his name is new to most:

Contemporaneously with ARD’s watershed investment in [Digital Equipment Corporation], others began walking the trails Doriot had blazed: Arthur Rock (a student of Doriot’s in the Harvard class of 1951) backed the departure of the “Traitorous Eight” from Shockley Semiconductor to form ­Fairchild Semiconductor in 1957, then funded ­Robert Noyce and ­Gordon Moore when they left ­Fairchild to found Intel; ­Laurance ­Rockefeller formed ­Venrock, which has since backed more than 400 companies, including Intel and Apple; Don ­Valentine formed Sequoia Capital, which would invest in Atari, Apple, Oracle, Cisco, Google, and YouTube.

Doriot himself would likely have felt at home among today’s embattled and outnumbered regulation-skeptics in the technology policy community:

he opposed both the dirigiste political economy of his native France and the tax hikes and anticompetitive laws enacted in the United States under the New Deal. Such regulations, he maintained, arrogated to bureaucrats the function of the markets; their worst feature was that they let government lend money to failing businesses. Ante notes that a former colleague of Doriot’s, James F. Morgan, recalled him as “the most schizophrenic Frenchman I’ve ever met”–devoted to his original land’s wine, cuisine, and language even as “the French capacity to make very simple things complicated drove him nuts.”

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Astronaut Candidate, Johnson Space Center/International Space Station:

NASA, the world’s leader in space and aeronautics is always seeking outstanding scientists, engineers, and other talented professionals to carry forward the great discovery process that its mission demands. Creativity. Ambition. Teamwork. A sense of daring. And a probing mind. That’s what it takes to join NASA, one of the best places to work in the Federal Government.

The National Aeronautics and Space Administration (NASA) has a need for Astronaut Candidates to support the International Space Station (ISS) Program.

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Mike Masick over on Techdirt yesterday decried the “amount of misinformation flying around” on the retention marketing issue.  Unfortunately, however, his attempt to clear things up actually added to the airborne debris. 

Specifically, Mike claims that I erred the other day in writing that the question at hand was whether Verizon can contact customers who have agreed to switch telephone service providers, and ask them not to switch.  That, he says, is incorrect.  Saying that “no one” is saying that telcos can’t try to convince customers not to switch, he claims the issue is instead whether Verizon can delay  making the change while it trys to take them out of it: 

What the FCC has said is that Verizon cannot abuse its position to block the switch while it tries to convince customers not to switch. That’s what Verizon is doing. When it gets the request from the cable companies to switch, it basically goes into procrastinate mode, even though it’s required to process the switch. It codes the switch request as a “conflict” which gives it extra time to resolve the “conflict” before obeying the switch request.

Masick is simply wrong.  The FCC’s order, released Monday, explains clearly that a conflict code is entered only after Verizon is successful at convincing a customer not to change carriers.  There’s no claim that, or even a reference to, Verizon improperly delaying any pending switch requests (although the cable industry is certainly pushing for telcos to be required to make switches more quickly).

What the FCC did say was that the information contained in the switch request (i.e., that the customer wants to change), is “proprietary,” and that — to quote Commissioner McDowell: “marketing efforts [based on that information] cannot take place during the window of time when a customer’s phone number is being switched”.

Bottom line:  I stand by my original post.

Neanderthal Philosophy

by on June 24, 2008 · 18 comments

Larry Lessig is so respectful to his ideological opponents:

The press conference brought together some unlikely allies. “This is the first time in our history that we have tried to build fundamental infrastructure on the basis of a Neanderthal philosophy,” announced Stanford law professor Lawrence Lessig, “which is that we don’t need government to do it.” Seated next to Lessig was David All, founder of the Republican fundraising site Slatecard—and normally a proponent of that “Neanderthal” philosophy. All later argued for wider broadband access as a means of fostering the next generation of tech entrepreneurs.

Tell us what you really think, Prof. Lessig.