Archives for the 'Telecom and Cable Regulation' Category
Comcast to FCC: We’re not gonna take it
After a little bit of suspense, Comcast today filed suit in federal court challenging the FCC’s authority to sanction it for “unreasonable network practices.” I say suspense because there was speculation that Comcast might have decided to look the other way and live with a decision that didn’t really force it to do much that the market hadn’t already made it do. I’m happy to see that they’re not standing for Kevin Martin’s blatant overreach. As I’ve said many times before, the FCC has no authority to punish a company for behaving “unreasonably” when it has never established a criteria for what is reasonable.
I don’t know to what statement specifically Saul Hansell is referring, but in his New York Times post breaking the news, he wrote:
Kevin Martin, the commission’s chairman, has argued that making rules in advance is not a good method to regulate fast-moving markets like Internet service. Under his stewardship, the commission has published broad principles and has taken action only when it found that objectionable practices have occurred.
I love that. Making laws before we apply them isn’t really efficient.
If you want every gory detail about why the FCC’s order should fall, I heartily recommend to you Barbara Esbin’s recent paper [PDF] on the matter. Esbin is a fourteen-year veteran of the FCC and, among other things, in her paper she explodes an argument that I’ve been hearing lately, namely that the FCC has “ancillary jurisdiction” to regulate broadband network management practices. She writes:
As Commissioner Adelstein stated: “[T]he Order sets out the Commission’s legal authority under Title I of the Act, explaining that preventing unreasonable network discrimination directly furthers the goal of making broadband Internet access both “rapid” and “efficient.” This appears to be a paraphrase of Section 1 of the Act, which recites the Act’s purposes and the reason for creation of the FCC, including “regulating interstate and foreign commerce in communication by wire and radio so as to make available . . . a rapid, efficient, Nation-wide and world-wide wire and radio communication service with adequate facilities at reasonable charges…” But because Title I is also considered the source of “ancillary jurisdiction,” that is akin to saying that the FCC can regulate if its actions are ancillary to its ancillary jurisdiction, and that is one ancillary too many.
Amen.
Another 4 months, still no FCC Video Competition Report
Well, another four months have passed since I last asked this question, but let me pose it again: Where exactly is the FCC’s Video Competition Report and why is it taking so long to get it out the door? It wouldn’t have anything to do with a certain Chairman Ahab still trying to get his cable whale, would it? No, of course not. I’m sure there’s a perfectly rational reason that this 13th Annual report is now something like 18 months past due altogether. Right.
And keep in mind that the data in the 13th report is for a period ending on June 30, 2006, so whenever the report finally comes out the data in it will be well over two years old! That won’t exactly reflect the true state of the video programming market considering the significant changes we have since that time, especially the continued explosive growth of online video, VOD, and DVRs.
The reason that I have been making a big deal out of this issue is because this gets to the question of just how “scientific” and “independent” of an agency the FCC really is. We are talking about facts here. Basic data. This is stuff the FCC should be routinely collecting and reporting on a timely basis — indeed that is what Congress requires the agency to do in this specific case. And yet the agency can’t do it because its Chairman is on this Moby Dick-like crusade against the cable industry. By the time this 13th annual report finally sees the light of day, the 15th annual report might be due! Outrageous. (And you wonder why many of us here are so skeptical about empowering the FCC regulating the Internet via Net neutrality mandates! If an over-zealous Chairman can politicize this issue, just think what might happen once we give the agency the authority to regulate the Net.)
Anyway, down below you will find the paper that Barbara Esbin and I wrote about the issue four months ago. Perhaps we should place a little ticker somewhere here on the site that counts each day that passes as we wait for the Commission to produce this report. We can take bets on when the agency’s data holdout will end.
Continue reading this post »
McCain’s Tech Policy a Mixed Bag at Best
Braden has noted the release of John McCain’s tech policy–rightly decrying McCain’s socialistic community broadband concept. But far more outrageous, in my view is this bit of doublethink. First, the good part we should all applaud:
John McCain Has Fought to Keep the Internet Free From Government Regulation
The role of government in the Innovation Age should be focused on creating opportunities for all Americans and maintaining the vibrancy of the Internet economy. Given the enormous benefits we have seen from a lightly regulated Internet and software market, our government should refrain from imposing burdensome regulation. John McCain understands that unnecessary government intrusion can harm the innovative genius of the Internet. Government should have to prove regulation is needed, rather than have entrepreneurs prove it is not.
Amen! Even a hardened Ron Paul/Bob Taft/Grover Cleveland/Jack Randolph-survivalist/libertarian-crank like me can rally behind that banner. But then this self-styled champion of deregulation pulls a really fast one:
John McCain Will Preserve Consumer Freedoms. John McCain will focus on policies that leave consumers free to access the content they choose; free to use the applications and services they choose; free to attach devices they choose, if they do not harm the network; and free to chose among broadband service providers.
That sure sounds nice, but it’s all Wu-vian code for re-regulation, not de-regulation. You might recognize that McCain is talking obliquely here about the FCC’s 1968 Carterfone doctrine, which has consumed much attention on the TLF (see this piece in particular).
McCain then insists that he will be a bold leader for “good” regulations: Continue reading this post »
FiOS coming soon to DC?
After gaining final approval to rollout FiOS in New York City a few weeks ago, Verizon has come to a preliminary agreement with the District of Columbia to deploy FiOS television service in the nation’s capital. This long-awaited announcement follows nearly a year of negotiation between Verizon and D.C. franchising authorities.
Thanks to its especially onerous franchising regime, the District of Columbia has lagged behind surrounding areas in fiber-optic connectivity. Neighboring communities such as Arlington, Fairfax, and Bethesda have had FiOS for years, and D.C.’s lack of fiber-optic service has long been a sore spot for the city.
D.C. residents can’t celebrate just yet, though. Verizon must overcome one more regulatory hurdle before starting to dig up the streets. The franchise agreement must receive a green-light from both the D.C. city council and the Attorney General. If the New York City episode is any indication, getting politicians to acquiesce will involve expensive demands and forced concessions, resulting in higher prices for everyone.
A Debate About Data Confidentiality and the Forthcoming ‘Broadband Census for America’
A recent post to Dave Farber’s [IP] list:
WASHINGTON, August 8 - I’d like to take a moment to respond to some of the issues raised by the recent e-mail of Brett Glass.
With respect to the issue data confidentiality, it’s important to separate out several issues here:
(1) The names of carriers and the locations in which they offer services, by ZIP code.
(2) The number of subscribers that carriers have in a particular ZIP code.
The Form 477 of the Federal Communications Commission requires carriers to submit both types of information to the FCC.
I agree that category (2) may well be confidential information. I do not think that category (1) can be considered confidential.
The web site that I run, http://BroadbandCensus.com, is an attempt to combine information about broadband from various sources. In addition to “crowdsourcing” data from internet users, we are combining public information from the FCC’s Form 477, publicly available information about carriers and where they offer services, as well as from states and localities. Since we launched BroadbandCensus.com in January 2008, We have had thousands of internet users tell us the names of their providers, where those providers are offering service, and they’ve taken our beta speed test.
It is important to note that Form 477 data released by the FCC does not include the names of the carriers. The FCC recently ordered carriers to begin to provide information on the census tract level (a unit slightly smaller than a ZIP code). However, unless the FCC changes its policy, consumers will still not be able to obtain carrier information from the agency.
Hence, the data we have from the FCC is extremely limited.
Regulation begets Regulation
Ryan does a great job of laying out the issues with the MPAA’s SOC waiver request. He makes two key points—that the FCC shouldn’t be telling cable companies what to do with their networks, and copyright law shouldn’t give the MPAA veto power over the design of technological devices. Ryan spends most of his time arguing the first point, but I think the second point is the really important one.
The thing to understand about DRM is that it’s less a encryption technology than (as Ed Felten puts it) a hook on which to hang lawsuits. Every DRM standard of any significance has been broken within months of its release. Without the DMCA on the books, many consumer electronics manufacturers would simply ignore DRM, reverse-engineering the relevant standards and producing devices that accept DRMed content and convert it to open formats. Knowing that this would happen, Hollywood would long since have given up trying to produce the kind of end-to-end DRM that’s at issue in these proceedings.
Which means that the existence of the cable industry’s Selectable Output Control powers is almost entirely a consequence of bad government policy. In a free market, I’d be able to go down to my local Best Buy and purchase $50 box that would take an HDCP input and output the content in a variety of non-encrypted formats. Such a box is unavailable only because Congress—at the behest of the MPAA—made producing it a felony. That, not anything the FCC has done, is the fundamental issue in this controversy.
Now, it makes me uncomfortable to have the FCC dictate how the cable industry runs its network. But I think the fundamental point that needs to be emphasized is that regulation begets regulation. That is, given that the DMCA has screwed up the consumer electronics industry, it’s not surprising that a lot of people want the FCC to step in to minimize the damage. The solution is to repeal the DMCA and let the free market work. But until that happens, I’m not going to get too outraged at Public Knowledge for asking the FCC to prevent the MPAA from abusing its government-granted veto power over the design of consumer electronics devices. I don’t agree with their solution, but I think their heart is in the right place.
FCC’s DRM ban may derail distribution of new-release films on cable TV
There’s been a lot of FUD floating around about the MPAA’s plan to offer new release films for cable subscribers to watch at home on pay-per-view channels. Currently, movies come out on DVD about four months after their theatrical release, and are typically available on pay-per-view a month or two thereafter. As box office receipts have waned, Hollywood has warmed to the idea of letting consumers watch movies at home just a few weeks after being released in theaters.
Due to piracy concerns, new movies would be subject to an extra layer of copy protection. The movie studios want to use a technology called Selectable Output Control (SOC) to prevent new release films from being viewed on analog outputs. SOC makes it possible to seal the “analog hole” by disabling all unprotected paths.
Consumers are willing to pay to watch new movies at home, and content producers are willing to transmit them, but government is standing in the way. FCC regulations forbid multi-channel video programming distributors from activating SOC, but firms may apply for a waiver from these rules if they can demonstrate that consumers stand to benefit. The MPAA has applied for a waiver, arguing that “These new Services are exactly the type of ‘new business models’ that the Commission contemplated when it adopted the encoding rules.”
Under Section 304 of the Telecommunications Act of 1996, the FCC is tasked with “assuring commercial consumer availability of equipment used to access services provided by multichannel video programming distributors.” FCC regulations, therefore, mandate that all video transmitted on cable TV must be viewable on all outputs, including legacy analog connectors like RCA and S-Video. In a 2003 Notice of Proposed Rulemaking, the FCC stated that, “we are concerned that selectable output control would harm those ‘early adopters’ whose DTV equipment only has component analog inputs for high definition display, placing these consumers at risk of being completely shut off from the high-definition content they expect to receive.”
But it’s expected that early adopters will sometimes encounter technical hurdles. Why should Selective Output Control be any different? Just as HD-DVD players are effectively obsolete, and K56flex modems are no longer supported by most dial-up ISPs, people who bought HDTVs several years ago prior to the adoption of HDCP might have to live without the ability to watch new release movies at home.
FCC Hammers Comcast For Deception and Unreasonable Internet Practices
WASHINGTON, August 1 – The Federal Communication Commission’s enforcement action against Comcast can be seen either as a limited response to a company’s deceptive practices, or a sweeping new venture by the agency into regulating internet policy.
In ruling against Comcast on Friday, the agency ordered the company to “disclose the details of its discriminatory network management practices,” “submit a compliance plan” to end those practices by year-end, and “disclose to customers and the [FCC] the network management practices that will replace current practices.”
At issue in the decision was whether Comcast had engaged in “reasonable network management” practices when it delayed and effetively blocked access to users of BitTorrent, a peer-to-peer software program.
Although BitTorrent had already settled its complaints with Comcast, FCC Chairman Kevin Martin said that FCC action was necessary because the complaint had been brought by Free Press and Public Knowledge, two non-profit groups. The FCC did not impose a fine.
Martin said that he viewed the agency’s decision to punish the cable operator as a quasi-judicial matter: a “fact-intensive inquiry” against a specific company that it found to have “selectively block[ed]” peer-to-peer traffic.
[Continue reading "FCC Hammers Comcast For Deception and Unreasonable Internet Management"]
From the FCC, DrewClark.com is Live…
…to cover the hearing at which Comcast is expected to be punished for violations of Network Neutrality. Fortunately, the Federal Communications Commission did not start on time. The great thing about the Kevin Martin FCC is that you never have to worry about being late. For example, we’re live at the FCC for the 9:30 a.m. meeting:
The FCC, 9:49 a.m.
The FCC, 9:49 a.m.
I’ll be live-Twittering the event, so check back on DrewClark.com (look at the column on the right - or just go to Twitter and “follow” me) for the latest updates. Later in the day, I’ll be posting a story about the event at BroadbandCensus.com.
Hijacking the Internet
FCC Chairman Kevin Martin received a reprimand from the Republican Leader of the House of Representatives, John A. Boehner, based upon reports that Martin plans to side with the commission’s two Democrats on Friday to interfere with the network management decisions of broadband providers in the matter of Comcast delaying the uploading of P2P file sharing when necessary to relieve network congestion:
When a small minority of subscribers – often using these applications to share pirated music and movies – began clogging the networks to the harm of the large majority of users, broadband providers began taking steps to alleviate the congestion. This, in turn, has prompted peer-to-peer developers to collaborate with broadband providers to find better ways to manage traffic. It is this market-based self-governing nature of the Internet that is the key to its success. Your heavy-handed attempts to inject the FCC into the middle of that process threaten to hijack the evolution of the Internet to everyone’s detriment. It will also deter the very broadband investment we need for the Internet to continue growing to meet the increasing demands being placed upon it.
Comcast has already adjusted its policy based upon public reaction and perhaps the threat of regulation. The question is whether this incident needs to be enshrined in permanent regulation or whether it indicates that the market actually works to protect legitimate consumer interests in the absence of reglation. I think it’s the latter.
For the FCC commissioners, this is a choice between good politics and good policy. Good politics would be to hammer Comcast, although that wouldn’t buy popularity for the Bush administration or any of its appointees. Their enemies are their enemies. Good policy would be to declare that this matter has been resolved. Ultimately, appointees of the Bush administration will be judged on their policies, not their politics.
Tarring and Feathering Comcast
The Federal Communications Commission, according to the Wall Street Journal, is prepared to stop Comcast from blocking peer-to-peer file sharing later this week — although the commission won’t fine the company because it wasn’t “previously clear what the agency’s rules were.”
Now, according to Multichannel News, comes word that there is a wireless broadband provider who explicitly prohibits all uses that may cause extreme network capacity issues, and “explicitly identif[ies] P2P file sharing applications as such a use.”
I am not familiar with the wireless broadband provider’s practices in this area (nor even of its relevant terms of service, even though I am a customer). However, Comcast delayed file sharing only when necessary to relieve network congestion. Absent congestion, Comcast permitted file sharing. A cable broadband network typically experiences congestion during the early evening hours. Which means that if file sharers were willing to avoid those hours they could share files on the Comcast network the rest of the time.
So it will be interesting whether the FCC bans network management which prohibits file sharing, in which case cable and wireless networks could become congested to the annoyance of millions of ordinary users. Or whether it allows broadband providers to practice network management so long as they clearly disclose it, in which case file sharers may discover they can’t use a broadband wireless or cable connection to share files, ever. Or maybe the brilliant politicians at the commission will require disclosure in sufficient detail to enable hackers to defeat network management altogether, permitting congestion to reign but ensuring that providers, not the commission, will be blamed.
As everyone who reads this blog knows, the architecture of cable, wireless and wireline networks is completely different. Each have unique congestion challenges, and in the short term all providers must have flexibility to find appropriate solutions.
The key point is that all broadband providers are trying to increase bandwidth as fast as they can. The proper role for the commission is to eliminate barriers to investment, of which regulatory uncertainty is one of the most significant.
If a particular company, Comcast, is the target here primarily because it refused to pay certain political dues or tribute, as I suspect it is, we should acknowledge that and take the company’s side.
Telecom and Transportation Should Be Focus of Infrastructure Investments, Says Think Tank
WASHINGTON, July 28 – By combining better public information, market mechanisms and smarter systems of subsidization, the government can play a positive role in funding infrastructure investments in telecommunications, according to three reports released Friday by the Brookings Institution.
The papers, released on Friday at an event that also featured an address by Virginia Gov. Tim Kaine, are part of a Brookings Institution initiative promoting investments in infrastructure – both physical, transportation investments, as well as new ways to spur improvements in the telecommunications infrastructure.
“No economy improves with a declining infrastructure,” said Kaine, a Democrat. “Unless you make that high-tech investment easy by telecom access, you won’t get” improvements in your state’s economic condition, he said.
Brookings, a liberal-leaning think tank, released the reports as part of an initiative dubbed the “Hamilton Project.” The project seeks to put forward policy ideas that “embrac[e] a role for effective government in making needed public investments,” according to the think tank.
Read the complete story at BroadbandCensus.com
CWA Wants Better Broadband Data, As Does Internet for Everyone
WASHINGTON, July 17 - Communications Workers of America this past week teamed up with a group of telecommunications companies, cable operators and non-profit groups to push for Congress to pass broadband data legislation.
In a Friday letter and a Monday press release, the groups wrote “to express [their] strong support for Congressional action to promote greater availability and adoption of broadband high-speed Internet services.”
They want “a national policy” to encourage more broadband deployment, and they cite economic statistics about broadband’s potential.
And, as a first step, these companies and CWA want Congress to pass the Broadband Census of America Act, H.R. 3919, or the Broadband Data Improvement Act, S. 1492.
Curiously, last month another large coalition announced a similar campaign. They call themselves Internet for Everyone.
Continue reading “CWA Wants Better Broadband Data, As Does Internet for Everyone“
Want Better Broadband in America? Take the Broadband Census! (Commentary)
The following commentary appears in the current issue of Opastco Advocate, a monthly newsletter published by the Organization for the Promotion and Advancement of Small Telecommunications Companies. Reprinted by permission.
Most Americans who have high-speed Internet can’t imagine life without broadband. How could you connect to the Internet of today without it? In today’s world, broadband is as basic as running water and electricity. And yet the U.S. is falling behind globally. As a technology reporter, I’ve been writing about the battles over broadband and the Internet for nearly a decade in Washington. Yet there is one fact about which nearly everyone seems to be in agreement: if America wants better broadband, America needs better broadband data.
That’s why I’ve recently started a new venture to collect this broadband data, and to make this data freely available for all on the Web, at http://BroadbandCensus.com.
The information and news that is available for free at BroadbandCensus.com is more important now than ever before. The FCC has just made important changes to how it will collect data from carriers. The agency may make even more significant changes in the near future. Public and private sector groups of all stripes are demanding, ever more loudly, that government take steps toward a national broadband policy. That cannot be done without solid information about broadband. Finally, many large carriers are beginning to implement plans to meter out bandwidth in tiers and with usage caps. This marketplace development makes the mission of an independent monitoring Website like BroadbandCensus.com even more critical.
A La Carte Regulation and the Failure of Good Intentions
Jeff Eisenach, Chairman of Criterion Economics, and I have just released a new article about the perils of a la carte regulation in the Federalist Society’s journal Engage. In “A La Carte Regulation of Pay TV: Good Intentions vs. Good Economics,” we argue that: “From a policy perspective, a la carte regulation is worse than a solution in search of a problem; it is a problem waiting to happen.” We show that the pay TV marketplace is functioning quite efficiently and that consumers have more choices and content diversity at their disposal than ever. A la carte mandates, we argue, would destroy that diversity and likely put pressure on prices to go up, contrary to the goals of the backers of a la carte.
We also discuss how a la carte is being proposed a tool of social regulation / speech control, with backers labeling it a way of “cleaning up cable.” We explain why that is not going to work and why, even if it did, it would be a betrayal of the First Amendment.
This new article can be found online here and it is embedded down below as a Scribd file:
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