So, the GAO recently released a report on the wireless industry and found that:

The biggest changes in the wireless industry since 2000 have been consolidation among wireless carriers and increased use of wireless services by consumers. Industry consolidation has made it more difficult for small and regional carriers to be competitive. Difficulties for these carriers include securing subscribers, making network investments, and offering the latest wireless phones necessary to compete in this dynamic industry. Nevertheless, consumers have also seen benefits, such as generally lower prices, which are approximately 50 percent less than 1999 prices, and better coverage.

Now, if you are a self-described “consumer advocate,” I would hope the bottom line here is pretty straightforward and refreshing: Prices fell by 50% in 10 years. That alone is an amazing success story. But that’s not the end of the story. The more important fact is that prices fell by that much while innovation in this sector was also flourishing.  Do you remember the phone you carried in your pocket — if you could fit it in your pocket at all — ten years ago?  It was a pretty rudimentary device.  It made calls and… well… it made calls.  Now, think about the mini-computer that sits in your pocket right now.  Stunning little piece of kit. It can text. It can do email. It can get Internet access. You can Twitter on it. Oh, and you can still make calls on it (but who wants to do that anymore!)

The point is, this is a great American capitalist success story that everyone — especially “consumer advocates” — should be celebrating.  So, what does Public Knowledge president Gigi Sohn have to say?

“These trends do not bode well for consumers, despite any benefits of the moment,” she told Ars Technica.

Wait, what?  Apparently no good deed goes unpunished. In the eyes of Public Knowledge, 50% price drops + stunning innovation = we need more regulation!  According to Ars, Gigi called for wireless net neutrality, text messaging regulation, an end to handset exclusivity, and more reasonable early termination fees.

What Gigi appears to be hung up on is the fact that, as the GAO reports, there has been undeniable consolidation in this sector since 2000. (Of course, that scale was essential to spreading faster networks nationwide).  But in Public Knowledge’s world, big is always bad.  All that counts is how atomistic competition is.  If we don’t have lemonade stands* on every corner, then, by God, to hell with the entire system, they say.  It makes no difference to them how well consumers did under that system . That’s the key take-away here.

But how asinine is this?  Again, isn’t consumer welfare what really counts?  Do we really care if we have 4 or 40 competitors? So long as prices are generally reasonable (or in this case constantly plummeting) and innovation is occurring at a healthy clip (which is certainly is here), then who cares how many players are out there?  Who’s to say to say that “X” is exactly the right number of competitors?  Markets determine these things. Public Knowledge apparently doesn’t like the fact that X currently is 4 instead of 40, or whatever it is they think meets their Goldilocks standard.  And, so, to get things just right, they would bring in the regulatory wrecking ball and have FCC bureaucrats start re-engineering this sector according to their own preferred design.

Oh, the rank hubris of it all!

Anyway, you’ll have to excuse me now.  Once I finish up this post to on my Droid (yes, I can blog on my fricking phone!!!!  How amazing is that, Gigi !!) I then need to get back to reading through my day’s Twitter stream (also on my phone) my RSS feeds (also via my phone) and then sort through the tens of thousands of games and apps in the Android marketplace to find my kids some new things to keep them entertained on a long car drive during vacation next week, where I will be using the Droid’s navigation system to find the hotel, while also searching for restaurants to eat at, while also…

Oh, you get the point.  Some people are just never happy.

P.S. To understand why “lemonade stand economics” are never going to work out well in high fixed-cost sectors like wireless, please see my post, “Wireless Networks & Lemonade Stand Economics.”   For more facts about how vibrantly competitive and innovative this sector is, please see:

• Wireless Innovation is Alive & Well: Two New Reports Set the Record Straight
• CTIA’s Refutation of Tim Wu’s 2007 Wireless Net Neutrality Paper
• The Fiercely Competitive Mobile OS & Device Markets

[I’m always amazed by the misuse of language in debates over media and communications policy. Some regulatory advocates, like Free Press and Public Knowledge, seem to contort the meaning of everyday words in such a grotesque way that they are barely recognizable.  Luckily, via Wikileaks, Mike Wendy and I stumbled upon a secret copy of the “Free Press-Public Knowledge Stylebook for Public Debate” and now have a better idea of what they mean when they utter these terms. We thought we’d share…]

_______________________

“ behemoth” – Use this word to refer to any corporation, regardless of actual size, and make them sound more nefarious than the much larger government that will regulate them.

“ Big Brother” – See “behemoth,” and be careful not to reference Orwell too much lest people actually read “1984” and discover that Big Brother was actually the government, not industry.

“ Censorship” – Refers to efforts by nefarious corporations to control our thoughts and actions since that’s obviously how they make most of their money. Some people say government might be the real threat to freedom of speech, but don’t you believe such silliness!

“ Competition” – A centrally-planned system used to prop up free-riders who usually don’t have facilities of their own. (See “Open access.”)  Of course, the best forms of competition arise from government ownership.

“ the Constitution” – An odd document in that, for some reason, it contains a litany of limitations on the power of government to regulate evil corporations that the people wanted to see crushed. (See “the People.”)  However, the addition of the First Amendment partially rectified that by giving us the foundation for industry regulation. (See “First Amendment.”)

“Corporation” – Detestable entities designed to usurp the fundamental freedoms of the people (See “the People.”)  Oftentimes used to quickly shorthand the concept of “evil” in press releases.

“Fifth Amendment” – A misguided amendment not as easily contorted to our ends at the First. (See “First Amendment.”)  Has something to do with property. (See “Property.”) To be ignored whenever possible. Do not mention in court.

“ First Amendment” – The First Amendment was part of a meddlesome text called “The Constitution,” which apparently limited the powers of government, or something like that.  (See “The Constitution.”)  Anyway, the First Amendment empowers the government to control companies so they can’t censor our every thought. (See “censorship.”)  Some claim the First Amendment should be used to limit government regulation of speech or expression, but it’s unclear why we’d ever need to do that!

“ Free speech” – The right of the people (see “the People”) to use government regulation to demand that private companies give us whatever we want on whatever terms we want.  Used in sentence: “That media company violated my free speech rights by making me pay for the content I wanted!” Or, “Private companies have no right to take away my free speech rights by owning and controlling private networks!”

“ Freedom” – The right of the government to control the economy. When used in a sentence: “The FCC should guarantee Internet freedom through extensive regulation of broadband networks and media platforms.”

“ Investment” – What occurs when government heavily regulates industry and technology.  More regulation guarantees more investment.

“Innovation” – Technological advances that occur only at the “edge” of networks.  It is important that when using this term, the connection to the “network” be minimized in order to belittle its role and minimize underlying speech and property rights, thus allowing the maximum leeway when confiscatory regulations are deemed necessary to benefit the “edge” (which is always).

“ Level playing field” – The placing of a thumb on the regulatory scales to favor whomever seems the least capitalistic at any given time (preferably municipally-owned utilities). To be used arbitrarily by regulators / policymakers to delimit the range of free enterprise options for successful companies via unique regulatory burdens on market leaders — even when no anti-competitive violations have occurred.

“Marketplace” – An unwieldy, red-light district that cannot be trusted by the consumer and which is always in need of a sheriff to police its dubious benefits. The free marketplace remains the mortal enemy of the State, and should never be allowed to prosper free from a deluge of regulations, proscriptions and penalties to ensure its enslavement to the “public interest.”  (See “Public interest.”)

“ Net Neutrality” – The first of the Ten Commandments handed down to Moses on Mt. Sinai by the Lord.  Guarantees openness (See “openness”) and competition (See “competition”) for the people (See “the people.”)

“ Openness” – The belief that everyone and everything should be equal and free — or will be made more equal and free — through extensive regulation.

“ Open Access” – Refers to the right for companies that lack their own facilities — and without any serious chance of making it on their own — to free-ride off of existing infrastructure providers in the name of “competition.” (See “Competition.”)

“ the People” – Refers to what we want, but under the guise of everyone else, whether they actually want the same things we do or not. [Use frequently and in conjunction with “freedom.”]

“ Price discrimination” – Everyone knows discrimination is bad.  (Didn’t we have a civil war over that?)  While some economists pretend price discrimination is a crucial component underlying business models for many important goods and services, we know it is just a ruse to screw consumers. Everybody should pay the same price for everything. Period.

“ Property” – We’ll have to get back to you on this one. We’re not sure what it is.  But in the meantime, avoid any mention of it.  If pressed in court or in the media, instead play up “the public interest.” (See “Public Interest.”)

“ Public interest” – Whatever five unelected bureaucrats at the FCC think is in our best interest.

“ Reform” – Feigning the lessening of regulatory burdens while simultaneously adding new burdens to the regulated class.

“Regulation” – The preferred and politically plastic proxy to the uncontrollable and anti-consumer free-enterprise system. (See “Marketplace.”)

“ Regulatory certainty” – Adding layers of red tape to the mountains that already exist to ensure competition and investment thrive. (See “Competition” and “Investment.”)

“ Rights” – Benefits from the State. The best “rights” are accompanied by an annual appropriation. (When discussing such rights, avoid discussions of costs / taxes / inefficiencies).

“Unintended Consequences” – For law or regulation, there are none, only opportunities to perfect any given means of control.

“ Voluntary Concessions” – The pound of flesh required from any company that has the audacity to suggest is should have the right to merge with another company. Preferably, this death by bloodletting should occur over as long a period as possible. If there is a “shot clock” on the proceeding, it’d be good to stop it as much as possible.

[ Note: Rumor has it that the “FP-PK Stylebook” will soon be made available at college bookstores across America for classroom instruction in cyberlaw and media policy courses. Lawrence Lessig and Tim Wu are penning the preface.  Thanks to a generous grant from The Open Society Institute, the Stylebook will only cost $1 and bulk orders of will be accompanied by a free copy of Rules for Radicals by Saul Alinksky.]

I sometimes enjoy picking nits with or lampooning our friend Scott Cleland, but today write to point out what an excellent job he did of advocating against net neutrality regulation last week on the NewsHour.

The set-up piece is interesting because of its government-centric take. Net neutrality, it says, is “a set of principles adopted by the Federal Communications Commission in 2005 that limits the ability of Internet providers to treat sites differently.”

The better view, I think, is that neutrality is one of “a set of technical principles that have been implicit in [the Internet’s] design since it began life.” Hey, NewsHour, giving the FCC credit for the neutral engineering of the Internet is like giving the rooster credit for the sunrise.

There’s a telling omission in the NewsHour’s telling of the Comcast Kerfuffle. See if you catch it:

The case began with actions by Comcast in 2007 to interfere with an online service called BitTorrent, a file-swapping site that allows consumers to swap movies and other material over the Internet, files that use a great deal of bandwidth. The FCC then told Comcast it could not block subscribers from using BitTorrent under the commission’s net neutrality rules.

Left out: Comcast had ceased interfering with BitTorrent before the FCC acted due to a variety of market pressures.

But take a look at the piece and Scott’s good advocacy in the discussion that follows the set-up:

Gigi Sohn, who I personally respect and who I agree with on many issues, reaches a bit far when she argues that Comcast degraded BitTorrent because it was a file-sharing site “unpopular with some folks in Congress and some folks elsewhere.” Collapsing net neutrality regulation and intellectual property issues may be good for Public Knowledge’s base, but it confuses many issues and weakens Public Knowledge’s arguments and support.

I think the record is pretty clear that Comcast degraded BitTorrent because of a conflict between the BitTorrent protocol and the DOCSIS protocol running on Comcast’s cable plant. (I know I can rely on comments to correct me or bring nuance to this claim.)

Neutrality was not a gift from government, and I don’t think making a mandate of a good engineering principle will improve the functioning of the Internet or the Internet ecosystem.

John Schwartz of The New York Times called me two weeks ago and asked for comment about a potential controversy involving mobile phone provider Sprint and the charitable organization Catholic Relief Services (CRS). The facts were pretty sketchy at the time, but Schwartz told me that CRS was accusing Sprint of blocking Mobile Commons, the company that connects CRS and 100 other nonprofit organizations with text messaging networks, from getting a short code to create a charitable mobile donation program in the wake of the Haiti earthquake. Here’s the basic background that appeared in Schwartz’s March 24th article, “Catholic Charity and Sprint Tangle Over Texting“:

[CRS] wanted to try a twist on the technology: when people sent a text message to donate, they got a reply offering to connect them via phone to the charity’s call center. The group hoped that the calls could build a stronger bond with donors, and garner larger contributions as well. But just three days into the effort after the Jan. 12 earthquake, the charity got word that Sprint Nextel was demanding that the “text-to-call” effort be shut down. The charity had 40 days to abandon the feature or lose access to millions of Sprint customers.  Sprint’s original motivations are murky; it said that an intermediary company had failed to properly fill out a form to verify that it was dealing with a legitimate charity.

It didn’t take long for the regulatory activists at Free Press and Public Knowledge to pounce and claim the Federal Communications Commission (FCC) had to intervene to save our souls from the nefarious scum at Sprint. After all, you do know that Sprint hates Haitians, right?  The company obviously wanted to see Haitians starve and not receive any support from charitable organizations.

No, seriously, come on!  How asinine is this storyline?! That’s why, when Schwartz called me about the issue, I felt something else had to be going on here. When he asked me for a quote for the story, here’s what I said, (on the assumption that Sprint probably had some sort of system in place to ensure fraud wasn’t taking place): “most people would say, I want my carrier to be doing a certain amount of policing for potentially harmful or fraudulent activities,” and would hold the carrier responsible if things went wrong.

And, now that all the facts are out, we now know that Sprint had no charity-blocking machinations in mind. Indeed, as I suspected, the company (quite sensibly) has a process in place to make sure that any organization asking for the short code is legit and not a blatant scam artist. Here’s how Sprint explained the situation:

We are simply asking Mobile Commons – the aggregator involved – to adhere to the same reasonable practices with which other entities involved in mobile giving adhere.  Specifically, certify that the charities they work with are 501(c)3 organizations; set up a confirmation process for each short code; and, provide basic information concerning the mobile giving campaign they wish to implement. In turn, this allows us to accurately communicate this information to our wireless customers who call us seeking more detail. Taking these steps also protects our customers and assures that their donations are going where they are intended.

Makes perfect sense to me, especially in light of the unique “text-to-call” service being proposed by CRS and Mobile Commons in this case. If you were a mobile phone operator, wouldn’t you want to a have a process in place to vet short code use so that your users weren’t getting scammed by hucksters? (That’s especially the case in our litigious society, where class-action lawsuits fly at the first whiff of potential trouble.) And as a customer, don’t you hope that your provider has such safeguards in place?  Basically, that’s all that Sprint has done here.

But here’s what I found really surprising, and that you certainly wouldn’t learn if you only listened to the howling in Free Press and Public Knowledge press releases: Sprint never blocked the CRS code at all! A clearly (and legitimately) agitated John Taylor, who handles corporate communications for Sprint, notes:

There is not ONE Sprint customer who has been prevented from using the short code set up by the mobile marketing firm hired by Catholic Relief Services. That’s because the short code is operable on Sprint’s network. (It never was suspended and we never threatened to suspend the code.)

And here’s Sprint’s letter to the FCC responding to the allegations and verifying that the CRS code has been operational and will continue to be so.

Now, let’s get back to the call by Free Press and Public Knowledge for regulatory intervention. They made that call to regulatory arms less than 24 hours after Schwartz’s NYT article appeared. Never mind the sketchy facts, they basically said, we are going full bore forward and requesting action now!  Here’s what they demanded:

“The Commission has an opportunity to establish the rule of law with regard to text messaging and short codes. It can require that carriers deal fairly, and that non-profits and commercial enterprises have the necessary stability and legal protection from unjust and unreasonable discrimination to innovate and explore new ways to use this communications technology. But if the Commission once again turns a blind eye to carrier discrimination by letting the Petition continue to languish, this too will send a message to both carriers and users of short codes, and we can expect such arbitrary discrimination to continue to increase.”

But the problem with this is that the carrier in question (Sprint) was dealing with the situation fairly and in a reasonable, non-discriminatory manner.  The company was applying the same sensible policy in this case they they have applied across the board . And, again, they were not blocking anything at all !

In a truly audacious response to these facts, Harold Feld of Public Knowledge tries to avoid admitting that they were clearly wrong on the facts and instead spins this around to make it all Sprint’s fault. In a response to John Taylor, Feld argues:

the “real story” is that Mobile Commons and CRS must put up with such ridiculous processes and arbitrary treatment at all . That you feel ill-used because the process that you developed and implemented prevented you from discovering that a customer was threatened with a shut off for a relief fund — and that you failed to contact the customer directly after the NYT reporter alerted your company about the problem — emphasizes the phenomenal sense of entitlement carriers have with regard to how they provision what should be a basic service no different from use of an 800 number.

Absurd. What “ridiculous processes and arbitrary treatment” are you talking about, Harold? There’s none here to be found!  Would Free Press and Public Knowledge prefer no process at all?  Again, should any huckster calling themselves a “charity” be able to grab a short code and unwitting “donors” givers straight to their offshore account to pump individual givers’ bank accounts at will?  That seems like bad business to me—for both Sprint and its customers. Indeed, if Sprint didn’t have some policies in place to deal with such things, policymakers would likely be up in arms about it and the FTC would potentially come calling once things went wrong. Or would you put the FCC in charge of monitoring all these things on behalf of carriers? Should the FCC have a whole wing of regulators dealing with standard business practices like fraud prevention? Seriously, why shouldn’t that be handled by private carriers?

Even more outrageous is Feld’s line about carriers’ “phenomenal sense of entitlement.”  What in the hell is he talking about? The only “sense of entitlement” I can find here is the one on display at Public Knowledge and Free Press, two organizations that apparently believe that they are entitled to instantaneous FCC regulation of communications markets based on asinine and unsubstantiated conspiracy theories. Most troubling of all is the fact they couldn’t even wait 24 hours to check out all the facts and see what the real story was—perhaps, by checking with Sprint!  Instead, they displayed a reckless disregard for the truth in their rush to fire off a letter asking the FCC to bring down the regulatory hammer.

Shame on them both.

I debated PK’s Art Brodsky last week about net neutrality on the international news channel, RussiaToday. Here are a few of my key points of disagreement with Art:

1. The glittering generality of “Neutrality,” once enshrined in law for one layer of the Internet will be extended, sooner or later, to other layers. As Adam and I have warned, “the same rationale would apply equally to any circumstance in which access to a communications platform is supposedly limited to a few ‘gatekeepers.'” We’re already seeing this with fights over application neutrality and device neutrality, and calls for search neutrality are growing.
2. Art insists that antitrust suits work too slowly. But he doesn’t address the basic question of what standard should govern network management. Should it be “neutrality uber alles” or, if we’re going to regulate in fashion, why shouldn’t we ask what’s good for consumers—the standard proposed by PFF’s 2005 Digital Age Communications Act (DACA)? Neutrality isn’t always best!
3. Common carriage regulation didn’t work well for railroads (contrary to popular myth) and it worked even less well for communications media, retarding the development of new services like faxes, Internet services and cell phones. Regulating broadband providers the same way will work even more poorly because they aren’t just “big dumb pipes” providing a plain vanilla service and incapable of innovation that can benefit consumers.

http://www.youtube.com/v/fVcZO7KxyG4

The Cato Unbound online debate about the 10th anniversary of Lawrence Lessig’s Code and Other Laws of Cyberspace continues today with my response to Declan McCullagh’s opening essay, “What Larry Didn’t Get,” as well as Jonathan Zittrain’s follow-up.

In my response, “Code, Pessimism, and the Illusion of ‘Perfect Control,'” I begin by arguing that:

The problem with peddling tales of a pending techno-apocalypse is that, at some point, you may have to account for your prophecies — or false prophecies as the case may be. Hence, the problem for Lawrence Lessig ten years after the publication of his seminal book, Code and Other Laws of Cyberspace.

I go on to argue that:

Lessig’s lugubrious predictions proved largely unwarranted. Code has not become the great regulator of markets or enslaver of man; it has been a liberator of both. Indeed, the story of the past digital decade has been the exact opposite of the one Lessig envisioned in Code.

After providing several examples of just how wrong Lessig’s predictions were, I then ask:

[W]hy have Lessig’s predictions proven so off the mark? Lessig failed to appreciate that markets are evolutionary and dynamic, and when those markets are built upon code, the pace and nature of change becomes unrelenting and utterly unpredictable. With the exception of some of the problems identified above, a largely unfettered cyberspace has left digital denizens better off in terms of the information they can access as well as the goods and services from which they can choose. Oh, and did I mention it’s all pretty much free-of-charge? Say what you want about our cyber-existence, but you can’t argue with the price!

I am forced to admit, however, that Lessig’s book has had enormous impact of the field of cyberlaw and digital technology policy:

This brings me to what I believe is the most important impact of Code: the philosophical movement it has spawned. As Declan noted in his opening essay, Code “offered a burgeoning protest movement [a] unifying theme and philosophy” in that it was both a polemic against cyber-libertarianism and a sort of call-to-arms for cyber-collectivism. It gave this movement its central operating principle: Code and cyberspace can be bent to the will of the collective, and it often must be if we are to avoid any number of impending disasters brought on by those nefarious (or just plain incompetent) folks in corporate America. Led by a gifted, prolific set of disciples such as Jonathan Zittrain and Tim Wu, as well as increasingly influential activist groups such as Public Knowledge and Free Press, Lessig’s cyber-collectivists continue to preach skepticism regarding markets and property rights, and a general openness to — and frequent embrace of — government solutions to digital-era dilemmas. […]  Prof. Lessig and his movement are winning the battle of ideas on the cyber-front today. We have Code to thank — or blame — for that.

Please head over to the Cato Unbound website to read the entire thing.  Prof. Lessig’s response is scheduled to be posted on Monday.

Tim Lee has been taking some heat here from Richard Bennett and Steve Schultze about various aspects of his new Net neutrality paper. I haven’t had much time this week to jump into these debates, but I did want to mention one important portion of Tim’s paper that is being overlooked. Specifically, I like the way Tim took head-on some of the silly free speech arguments being put forth as a rationale for net neutrality regulation. As Tim notes in the introduction of the paper:

Concerns that network owners will undermine free speech online are particularly misguided. Network owners have neither the technology nor the manpower to effectively filter online content based on the viewpoints being expressed, nor do profit-making businesses have any real incentive to do so. Should a network owner be foolish enough to attempt large-scale censorship of its customers, it would not only fail to suppress the disfavored speech, but the network would actually increase the visibility of the content as the effort at censorship attracted additional coverage of the material being censored.

I think that’s exactly right and, later in his paper (between pgs 22-3), Tim nicely elaborates about the “Herculean task” associated with any attempt by a broadband provider to “manipulate human communication.” Not only is it true, as Tim argues, that “no widescale manipulation would go unnoticed for very long,” but he is also correct in noting that the public and press backlash would be enormous.

Again, I agree wholeheartedly with all these sentiments, but I think Tim missed another important angle here when discussing the unfounded fears about corporate censorship and the misguided attempts to use free speech as a justification for imposing net neutrality regulations.

In his paper, Tim is essentially making an argument about the practicality of broadband providers acting as speech regulators — and he demolishes that assertion. But Tim fails to make an argument about the principle of the matter that is at stake here. Namely, some net neutrality supporters are attempting to convert the First Amendment into an affirmative grant of state power to regulate private entities, something it was clearly never intended to do.

Indeed, when Net neutrality supporters like the “Save the Internet Coalition” make statements like “Network neutrality is the Internet’s First Amendment,” I sometimes wonder if they are reading the same Constitution that I am. After all, the language of the First Amendment could not be more clear when it says, “Congress shall make no law…” It doesn’t contain any caveats or footnotes. And the First Amendment most certainly was not intended as a tool for government to control the editorial discretion of private individuals or institutions. It was about restricting the power of the government to curtail speech and expression.

Beginning in the 1960’s, however, a handful of liberal legal theories began concocting a new theory of the First Amendment that eventually came to be known as the “media access” school of thought. George Washington University law professor Jerome A. Barron’s 1967 Harvard Law Review article, “Access to the Press — a New First Amendment Right,” as well as the work of Yale University law professor Owen Fiss, gave rise to this new intellectual movement. Its goal, in essence, was to convert the First Amendment into a club to beat demands out of private media providers. Basically, these theorists wanted to expand “Fairness Doctrine”-like right-of-reply notions to newspapers, and simultaneously grant the government more leeway to use the First Amendment to alter media structures and outputs. As Fiss argued in a 1986 law review article, under the “media access” approach, a proper reading of the First Amendment requires “a change in our attitude about the state” such that we learn “to recognize the state not only as an enemy, but also as a friend of speech… [that should act] to enhance the quality of public debate.” (Iowa Law Review, Vol. 71, 1986, p. 1416).

Other left-leaning intellectuals and activists groups would come to integrate that logic into their work and public policy proposals. Now you know, for example, where the Media Access Project gets their name! But many other regulatory-minded groups — like Free Press, MoveOn.org, New America Foundation, and others — trace much of their intellectual heritage back to Barron, Fiss, and the other media access theorists. [Read my lengthy debunking of media access theory here.]

Here we see how the seeds of misguided intellectual thinking sometimes spring into wild gardens in which the weeds slowly take over everything in sight. This twisted conception of the First Amendment is so thoroughly ingrained in leftist media policy thinking today that even an abundant medium like the Internet is not exempt from potential regulations based on it. And that’s how we get to the point we are at today in the net neutrality regulatory debate, with many policymakers and activists groups painting private broadband operators as the supposed real Big Brother problem that the First Amendment must address.

Consider, for example, the comments Sen. Hillary Clinton made in 2006 regarding why she supports net neutrality regulation: “Each day on the Internet views are discussed and debated in an open forum without fear of censorship or reprisal.” As I noted at the time, when I read her statement I practically fell off my chair. It’s not just that Sen. Clinton is asking us to believe in some asinine conspiracy theory about how broadband companies are supposedly out to censor our thoughts or engage in reprisals. (”Reprisals”? For what?) No, what really blew my mind here was the fact that Sen. Clinton had the chutzpah to declare that the private sector was somehow the real threat to online speech. After all, as I inventoried in that old essay, Sen. Clinton has led several notable efforts over the past decade to expand government regulation of television, video games, and even the Internet.

And yet she and many other Net neutrality advocates insist that it is the private sector, not the government, that is the real threat to our free speech rights. Again, Tim Lee is correct to point out in his paper that, practically speaking, these advocates of Net neutrality regulation have little to fear in this regard. It is almost impossible to believe that any Internet operator could limit speech or expression in the ways these regulatory advocates fear. Unlike the government, which possesses the coercive power to completely foreclose all speech under threat of fine or imprisonment, the private sector lacks the ability to use force to bottle up speech or speakers. And even if private operators tried it, there would be hell for them to pay with the press, industry watchdogs, and their even subscribers. More importantly, there’s just no good business angle to censorship; they make more money by delivering more bits, not fewer. Finally, any attempt by one actor to stifle something becomes a prime incentive for another to offer it.  So, Tim is right on all those grounds.

But the principle of the matter is important, and we can’t let regulatory advocates get away with their effort convert the First Amendment into something it isn’t. As Jonathan Emord, author of the brilliant Freedom, Technology and the First Amendment, argued back in 1991, “In short, the [media] access advocates have transformed the marketplace of ideas from a laissez-faire model to a state-control model.” The real danger of this twisted conception of the First Amendment, he noted, is that, “It fundamentally shifts the marketplace of ideas from its private, unregulated, and interactive context to one within the compass of state control, making the marketplace ultimately responsible to government for determinations as to the choice of content expressed.”

That philosophy and regulatory approach is completely at odds with a proper understanding of the First Amendment, and yet that is exactly what many Net neutrality regulatory advocates are asking us to accept today.  The state — not the private sector — remains the true threat to our liberties. And, most horrifyingly of all, empowering the state to use the First Amendment to regulate private actors will almost certainly backfire and result in more, not less, regulation of speech online.

Jesse Walker has a terrific feature story looking “Beyond the Fairness Doctrine” in this month’s issue of Reason magazine. I highly recommend it. It’s an in-depth exploration of what an Obama Administration means for the future of tech and media policy. Walker rightly opens the piece by noting that “The fairness doctrine is still dead, and it probably will stay dead even if Barack Obama becomes president.” The danger, however, is that an Obama FCC will still pursue a variety of onerous regulatory objectives that could do a great deal of damage to markets and free speech.

Walker touches upon the various issues that will likely be a priority for an Obama Administration and the Left-leaning media reformistas like Free Press, Media Access Project, Public Knowledge, and New America Foundation. Those policy issues include: net neutrality, “localism” mandates and increased “community oversight” regulations, media ownership rules, minority ownership requirements, increased merger meddling, spectrum policy, and other new “public interest” obligations.

Of course, as Walker also correctly points out, it is difficult to see how things could get much worse than they have been under Bush Administration’s FCC and the leadership of Chairman Kevin Martin.  Walker was kind enough to quote my thoughts on this point: “Martin is the most regulatory Republican FCC Chairman in decades,” I told him. “He wants to control speech and will use whatever tools he has to get there.”

I stand by those words, but I am also aware that things could get worse — much worse — under a Democratic FCC influenced by radical Leftist activists like Free Press.  Indeed, in our new book A Manifesto for Media Freedom, Brian Anderson and I inventory the many looming threats to media and technology freedom that exist today and show how most of them arise from the Left.  As Walker notes in his article, however, it is unlikely that a re-empowered Democratic FCC would come right out of the gates with the same sort of command-and-control approaches they’ve employed in the past.  And we’ll still have to worry about some right-of-center lawmakers and regulatory joining some of these misguided campaigns. “The real danger,” Walker concludes in his piece, “is more subtle and more mundane.  It’s a bipartisan bureaucracy slowly, steadily increasing its power.”    Make sure to read Jesse’s entire piece.  Great stuff.

Our conference, “Broadband Census for America,” is fast approaching…. The event is tomorrow. If you want to attend, follow the instructions in the press release below:

FOR IMMEDIATE RELEASE

WASHINGTON, September 25, 2008 – California Public Utilities Commissioner Rachelle Chong, a member of the Federal Communications Commission from 1994 to 1997, will kick off the Broadband Census for America Conference with a keynote speech on Friday, September 26, at 8:30 a.m.

Eamonn Confrey, the first secretary for information and communications policy at the Embassy of Ireland, will present the luncheon keynote at noon. Confrey will overview Ireland’s efforts to collect data on broadband service through a comprehensive web site with availability, pricing and speed data about carriers.

Following Chong’s keynote address, the Broadband Census for America Conference – the first of its kind to unite academics, state regulators, and entities collecting broadband data – will hear from two distinguished panels.

One panel, “Does America Need a Broadband Census?” will contrast competing approaches to broadband mapping. Art Brodsky, communication director of the advocacy group Public Knowledge, will appear at the first public forum with Mark McElroy, the chief operating officer of Connected Nation, a Bell- and cable-industry funded organization involved in broadband mapping.

Also participating on the panel will be Drew Clark, executive director of BroadbandCensus.com, a consumer-focused effort at broadband data collection; and Debbie Goldman, the coordinator of Speed Matters, which is run by the Communications Workers of America.

The second panel, “How Should America Conduct a Broadband Census?” will feature state experts, including Jane Smith Patterson, executive director of the e-NC authority; and Jeffrey Campbell, director of technology and communications policy for Cisco Systems. Campbell was actively involved in the California Broadband Task Force.

Others scheduled to speak include Professor Kenneth Flamm of the University of Texas at Austin; Dr. William Lehr of the Massachusetts Institute of Technology; Indiana Utility Regulatory Commissioner Larry Landis; and Jean Plymale of Virginia Tech’s eCorridors Program.

Keynote speaker Rachelle Chong has been engaged in broadband data collection as a federal regulator, as a telecommunications attorney, and since 2006 as a state official.

Chong was instrumental to the California Broadband Task Force, which mapped broadband availability in California. She will speak about broadband data collection from the mid-1990s to today.

The event will be held at the American Association for the Advancement of Sciences’ headquarters at 12th and H Streets NW (near Metro Center) in Washington.

For more information: Drew Bennett, 202-580-8196 Bennett@broadbandcensus.com Conference web site: http://broadbandcensus.com/conference/ Registration: http://broadbandcensus.eventbrite.com/

Channeling Jonathan Zittrain, Alex Curtis of Public Knowledge continues his incessant ranting against Apple and the iPhone for supposedly not being open enough and, therefore, somehow harming consumers and 3rd party developers. In his essay today about the supposed evils of the iPhone App Store, he accuses Apple of an “1984 kind of total control.”

Hmmm, let’s see… Apple creates a great new product that is so insanely sexy and innovative that even Apple-haters like me are forced to admit that it is the most brilliant tech gadget of the decade. Millions of people have flocked to Apple stores, stood in lines so long that you’d think they were giving away free pot and floor bongs inside, and then voluntarily handed over seemingly all their disposable monthly income to get their hands on one of these things.

OK, so how is this like 1984 again? Is evil Steve Jobs forcing the masses to buy this product? Of course not. So it strikes me that we can easily dispense with analogies to a book about coercive, totalitarian government control like 1984.

And if all this anti-iPhone ranting is just about the degree of control that Steve Jobs and Apple exercise over product add-ons then hey, I’ve got an easy answer for you: go get a different phone! My current phone — and I tend to cycle through phones pretty quickly in the search of increasing functionality and 3rd party app-friendliness — is the wonderful HTC Touch. Specifically, I have the newer model that Verizon is offering with the oh-so-clunky moniker XV6900. (The Verizon branding / marketing department isn’t going to win any awards with robotic phone names like that!) Anyway, despite the silly name, this phone is a masterpiece. It has more functions than I know what to do with. And did you say you want 3rd party apps? Well, head over to Handango and check out the HTC Touch store there. I hope you have some time on your hands because you’ll be sorting through 5,100+ software apps available there for the device. But that just scratches the surface. There are so many other apps and freeware I have pulled off the Net for this phone that I can’t even begin to count them all. Hell, spend a couple of hours over on the Howard Forums trying to sort through all the stuff that you can do with this phone and your head will start to spin. It’s insane. And, as I’ve found out with this phone and my previous and equally app-friendly HTC XV6700, it’s also an easy way to quickly eat up all your storage and slow your memory down to a crawl.

The bottom line is, Apple offers people a choice. Yes, there is a little more hand-holding in their world than I can stand. I wrote about that in my original review of Zittrain’s book; a book that makes Apple out to be some sort of evil anti-consumer nemesis because their products aren’t perfectly open to tinkering. But that’s not what everyone is looking for in a phone. Many people just want stability, sexiness, and a somewhat smart device with a degree of tinkerability. Thus, Apple creates some trade-offs for its consumers, but it’s a deal most of them will gladly take.

Again, if Curtis doesn’t like the sound of that deal, then he should just go get a different device. There are millions of people who would happily buy his old iPhone, or take his place in line the next time Jobs rolls out another upgraded iPhone at an even lower price.

It is a difficult thing for me to say, but I am man enough to do it: I must congratulate our intellectual opponents on their amazing victory in the battle to impose Net neutrality regulations on the Internet. With the Wall Street Journal reporting last night that the FCC is on the verge of acting against Comcast based on the agency’s amorphous Net neutrality principles, it is now clear that the folks at the Free Press, Public Knowledge, and the many other advocates of comprehensive Internet regulation have succeeded in convincing a Republican-led FCC to get on the books what is, in essence, the nation’s first Net Neutrality law. It is quite an accomplishment when you think about it.

Even though, as Jerry Brito has noted, “the FCC has no authority to enforce a non-binding policy statement,” it is clear that is not about to stop the activist-minded FCC Chairman Kevin Martin or his allies on the Left from advancing the cause of arbitrary, bureaucratic governance of the Internet. And that means the “Hands Off the Net” era will gradually start giving way to the “Hands All Over the Net” era. As I told Bob Fernandez of the Philadelphia Inquirer when he called to interview me for a story about these developments:

“This is the foot in the door for big government to regulate the Internet,” […] “This is the beginning of a serious regulatory regime. For the first time, the FCC is making law around net neutrality.”

And now that they have that foot in the door, I fully expect that it will be exploited for everything it’s worth to grow the scope of the FCC’s coercive bureaucratic authority over all things digital. The Left is salivating at the prospect of imposing their top-down vision of forced egalitarianism on the the Net, while the Right is figuring out how quickly they can exploit this to impose speech controls on anything they don’t want the public to see or hear.

It is a historic moment in the history of communications and media regulation, and freedom has lost—miserably. The tentacles of the regulatory Leviathan have grown infinitely longer and a little bit more of the Net’s freedom died today. And, again, what’s most amazing about this is that we have a Republican FCC to thank for that. So much for the GOP being for smaller government.