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.
As Berin noted in the last post, we have installed Disqus on the TLF as our new commenting system. There are a couple of things I’d like to highlight about the new system.
First, I want to underscore what Berin said: claim your comments! Why is this so important? First, this lets you and other users see a page with every other comment you’ve posted on the TLF. Second, people can choose to “follow” your comments and be notified when you post something. Finally, over at the TLF community page on Disqus there’s a “Top Commenters” leaderboard, and I know you want to be at the top. So don’t start from zero, claim all your existing comments.
Next I want to draw your attention to the two little arrows to the left of commenters’ avatars (photos). Most folks know what this means, but I’ll explain anyway for those who may not. This lets you vote on each comment to let the system know whether the comment is especially smart and interesting or boneheaded and unhelpful. Good comments (up arrow) move up to the top of the thread, and comments that receive negative votes (down arrow) move toward the bottom and eventually disappear if they get enough downgrades. If you’d like to sort comments by the order they were posted, and not by votes, you can click the “Options” button below and choose your sorting preference.
Last, I want to just mention a couple other cool features. If you post a comment and someone posts a reply to you, you’ll get an email notifying you of the fact. Pretty cool, but it gets better. To post a comment in reply to that reply you don’t have to visit the blog, you can just hit “reply” and write an email in response. Your email will get posted to the TLF blog as a reply comment. Also, Disqus makes a bunch of RSS feeds available. There’s a feed for all TLF comments, feeds for comments posted to a specific blog post, feeds for specific commenters, etc.
Anyhow, hope you folks like it. Now go claim your comments!
We’re installing a new commenting system on the blog, so you’ll find that all old comments will be gone for a little while. Don’t worry; they’ll be back shortly. We’ll have more info on the new system soon.
As we’re wont to do this time of year, many of your humble Technology Liberation Front contributors will be attending PFF’s annual Aspen Summit next week and we think many of you will too. So, we’ve decided to hold the sixth in our series of Alcohol Liberation Front get-togethers on Tuesday, 8/19, at 9 p.m. at the Sky Bar located at the base of the Aspen Mountain. Like we did last time, we’ll also be recording our contributors (and hopefully some of you) pontificating for our podcast, Tech Policy Weekly. So drop on by and have a drink with your favorite TLF bloggers.
On this week’s show, we discuss the implications of the FCC’s controversial recent ruling against Comcast in the BitTorrent controversy. This is a topic we have covered previously on our podcast in episodes 34 and 35, and have been writing extensively about on the Tech Liberation Front blog over the last few days. In its decision last Friday, the FCC held that Comcast had engaged in unreasonable network management practices when it delayed access to BitTorrent traffic. Even though BitTorrent Inc. and Comcast have already settled their dispute and indeed are now working collaboratively together on solutions to these issues, FCC Chairman Kevin Martin said that legal action was necessary because others had complained about the practice.
On today’s show we focus on the implications of the FCC’s decision and what it means for the future of net neutrality regulation and communications policy more generally. Joining us for this week’s show are TLF regular contributors Jerry Brito of the Mercatus Center at George Mason University, Hance Haney of the Discovery Institute, Tim Lee of the Cato Institute, Jim Harper of the Cato Institute, James Gattuso of the Heritage Foundation, and Adam Thierer of the Progress & Freedom Foundation who moderates the discussion.
We’re having a little problem with our podcasting plugin, so here’s a temporary way for you to listen. You can download the MP3 here, or use the online player below.
Continuing my campaign to bring attention to congressional web use rules, I have an article up at Ars Technica today. Bottom line:
Although the partisan tensions have now subsided a bit, the greater problem persists. Culberson’s use of video-sharing and microblogging technology continues to violate House rules. So do Speaker Pelosi’s YouTube channel, Digg profile, Flickr page, and Facebook profile. The new rules proposed by Capuano and supported by Pelosi would not authorize these uses. In contrast, alternative rules (PDF) proposed by the Republican minority would allow members to use any service so long as they comply with existing content rules that prohibit political or commercial endorsements in official communications.
The reason I think this is so important right now is that both the House and the Senate are currently looking to change their rules, and its vital that they get them right. I know the blogosphere knows what the right call is here, they just need to make sure that Congress gets the message. That said,
Since the initial [reaction on the blogs], however, the blogosphere has been relatively silent on the issue, which one imagines should be near and dear to its geek heart. The silence has been especially deafening from bloggers on the political left who are best positioned to influence the House Democratic leadership’s position. Pelosi spoke at this year’s Netroots Nation conference (formerly YearlyKos) and participated in an “Ask the Speaker” session. Not one question, however, related to congressional web use restrictions.
I hope you’ll spread the message about this by blogging about it, Digging the story, and generally spreading the word. This is not a partisan issue, it’s an issue on which all bloggers and technophiles can agree, and it’s definitely an issue that we can win.
Tom Hazlett’s latest column in the FT tries to make us all pay more attention to the Clearwire deal. Even those of us here at the TLF have been remiss in following the venture. As Tom points out, the fact that open-spectrum and net-neutrality stalwarts such as Google and Intel are in bed with Comcast and Sprint tells us a lot. He writes:
Municipal Wi-Fi Adieu. When local government networks were the rage, circa 2003, their loudest corporate backer was Google. Broadband for all via “free” unlicensed spectrum, smart radios and just a gentle nudge from City Hall. Politicians from Philadephia to Portland drank the Kool-Aid. But Google just paid $500m to jump to the Clearwire ship. The change in strategy speaks volumes: municipal wi-fi is considered small opportunity for Google and no threat to Clearwire.
Fleeing the “Spectrum Commons”. Five years ago, Intel was pressuring US regulators for more unlicensed bands. It won – the Federal Communications Commission dumped hundreds of MHz into the market. The bump was little noticed – short-range apps continued to work, but not much else developed. Meanwhile, wireless phone networks – providing wide area, mobile service – were booming. But regulators held off new allocations for a decade, starving the sector just when it was upgrading to high-speed data networks.
New Clearwire boasts WiMAX, “wi-fi on steroids”, as its technological innovation, but note: this WiMAX runs on licensed frequencies. That is an economic choice, not a technical one. Only with the control afforded by exclusivity will these companies invest in the networks that, they hope, will make consumers sing. The “spectrum commons”? Been there, done that. This wireless broadband innovation aims to do what no one has done in unlicensed – and betting $14bn on it.
Net Neutrality Not. Clearwire consortium members are not passive investors. Buying in, they become network friends with benefits. The cable ops will retail service. McCaw’s NextNet is the lead gear maker. Motorola supplies handsets. Intel’s chips are plugged in. And Google’s search engine gets its own button on the phones, a cute efficiency copied from the wildly popular DoCoMo network in Japan. If the NTT model, where the carrier extracts payment from mobile apps for a preferred spot on the wireless web, is “open” – then “open” all capitalists must be. Richly, NTT is a member in good standing in Google’s Open Handset Alliance.
Now, the question my friends on the other side will rightly ask is, where’s the beef? Here it is. Any ideas how fast it will grow?
Over on the Open House Project blog, John Wonderlich ponders what would sensible web-use rules for members or Congress look like. As I’ve noted here recently, both the House and Senate are looking to update the types of restrictions they place on how their members may use internet technologies. John writes:
The question now before the Franking Commission is how to update what Pelosi and Capuano have both admitted are “antiquated” restrictions. They have to balance legitimate concerns — decorum, commercialization, and improper taxpayer funded political content — against what all involved parties have recognized as immense potential online. … What really constitutes commercial endorsement? When does conduct become unacceptable or undignified? What role should Congress play in enforcing those questions online? Where do the edges of “official duties” lie anyway? Are we treating the Internet differently than we do traditional media?
It seems to me that the first step is to separate message and medium. House and Senate rules should address what is proper and improper content—that is, they should have rules restricting the use of official resources to produce political or commercial messages or content that is undignified (however they want to define that). In fact, they already have such rules. That sort of content regulation, however, should be completely separate from restrictions on the medium used to transmit the message. As long as a member stays within the content rules, the medium should not matter.
Continue reading →
As Cord noted here a week ago, a letter from Rep. Michael Capuano (D-Mass.) suggesting changes to Congress’s rules governing how members may post videos to the Internet stirred a firestorm of commentary that culminated in a letter from Speaker Nancy Pelosi, a New York Times article, an NPR story, and a petition effort from the Sunlight Foundation that can be found at www.LetOurCongressTweet.com. The fact that this brouhaha sparked so much activity is a sign of how important this topic is, and now that the dust has settled a bit we can look at the issue more calmly.
Despite suggestions to the contrary during the initial frenzy, the fact is that the proposed amendments would affect only video and not Twitter or blogging. Also, the proposal, which limits pretty severely where House members may post video, is actually a
loosening of current rules. It’s understandable why some folks who are sensitive about online transparency pounced on this like they did, but it’s important to get the facts straight.
That said, it’s an absolute embarrassment that current House rules restrict how representatives link to outside websites. For example, I’ve talked to staff who say that while they would like to link to their member’s constantly updated voting record on GovTrack.us or the Washington Post’s Congress Votes Database, they won’t for fear of violating House rules. (The Open House Project’s report on member web-use restrictions explains in detail how the rules that govern the web and email are based on regulations developed for snail mail.)
To me, what should be the issue is the rationale for the regulations. For example, the rules proposed by Rep. Capuano would allow members to post video to outside hosting services so long as “the official content [is] not be posted on a website or page where it may appear with commercial or political information[.]” The reason seems to be that commercial or political messages anywhere in the vicinity of the official video clip would taint the “dignity, propriety, and decorum of the House.” Capuano explains in a follow-up statement:
Apparently the Republicans spreading these lies would rather operate without rules and open the House to commercialism. Maybe they don’t care if an official video appears next to a political advertisement for Barack Obama or John McCain, creating the appearance of an endorsement. And I guess they don’t care if constituents clicking on their videos will be treated to commercials for anything you can imagine, from the latest Hollywood blockbuster to Viagra. Certainly, advertisements are a reality in today’s world and most people can distinguish. However, it is also a reality that Members of Congress who use taxpayer money to communicate with constituents should be held to the highest possible standard of independence — and the appearance of independence.
According to the Associated Press, FCC Chairman Kevin Matin will circulate an order recommending enforcement action against Comcast “for violating agency principles that guarantee customers open access to the Internet.” Reports the AP,
Mr. Martin’s order would require Comcast to stop its practice of blocking, provide details to the commission on the extent and manner in which the practice was used and give consumers detailed information on how it planned to manage its network in the future.
Plain and simply put, the FCC has no authority to enforce a non-binding policy statement. If you’d care for the details, I dissected the issue at length in this comment to the FCC in its still-unresolved net neutrality proceeding. The take-away is this: In order for a rule to have the force of law, it must have been enacted in accordance with the Administrative Procedure Act, which requires notice to the public and an opportunity for comment and publication of the rule in the Federal Register. The Commission’s August 5, 2005 Internet Policy Statement that Martin is now trying to enforce was neither the result of notice-and-comment rulemaking, nor was it published in the Federal Register.
It may or may not be wise to promulgate the contents of the Internet Policy Statement as a binding legislative rule, and we can debate that when it’s proposed. But there must be an opportunity for input and a binding vote needs to take place before anyone can be held accountable to a statement.
As the D.C. Circuit in
Batterton v. Marshall put it, the purpose of requiring notice and comment is “to reintroduce public participation and fairness to affected parties after governmental authority has been delegated to unrepresentative agencies.” The court quoted the legislative history of the APA stating that because of the unrepresentative nature of a regulatory agency, “public participation . . . in the rulemaking process is essential in order to permit administrative agencies to inform themselves, and to afford safeguards to private interests.”
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.