(Follow the links for Part I, Part II, Part III and Part IV.)
In this final post on the FCC’s Dev. 23, 2010 Open Internet Report and Order, I’ll look briefly at the problematic legal foundation on which the FCC has built its new regulations on broadband Internet access. That discussion need only be brief largely because the extended legal analysis has already been admirably detailed by FCC Commissioner Robert McDowell. His dissent (see pages 145-177 of the Report and Order) calmly and systematically dismantles the case made by the majority (See ¶¶ 115-150).
This is no theoretical discussion of statutory interpretation. Even before the rules have been published on the Federal Register, two broadband providers—Verizon and then MetroPCS—have already filed lawsuits in the D.C. Circuit Court of Appeals challenging the FCC’s authority to regulate. (See Jim DeLong’s definitive deciphering of Verizon’s efforts to secure exclusive jurisdiction in the D.C. Circuit) The arguments sketched out in Commissioner McDowell’s dissent are likely to mirror the complainants’ briefs in these and likely other Petitions for Review of the Order.
Continue reading →
In previous posts, I’ve criticized the Federal Communications Commission for arbitrarily jacking up the speed in its definition of broadband (to 4 mbps download/1mbps upload) so that third generation wireless does not count as broadband. This makes broadband markets appear less competitive. It also expands the “need” for universal service subsidies for broadband, since places that have 3G wireless but not wired broadband get counted as not having broadband.
The FCC’s definition is based on the speed necessary to support streaming video. I rarely watch video on my computer. But tonight I had a chance to test the wisdom of the FCC’s definition. I’m in rural southern Delaware with broadband access only via a 3G modem. I wanted to watch more State of the Union coverage than the broadcast channels out here carried. So, I fired up the old PC and watched things on CNN.com. The video showed up fine and smooth, and it didn’t even burp when I opened another window to start working on this post.
So now I have not just analysis that questions the FCC’s definition of broadband, but that most precious of commodities in Washington regulatory debates: AN ANECDOTE!!!
I reported for CNET yesterday on highlights from the State of The Net 2011 conference. Though I didn’t attend last year’s event, I suspect much of the conversation hasn’t changed.
For an event that took place nearly a month after the FCC’s “final” vote on net neutrality, the issue seems not to have quieted down in the least. A fiery speech from Congresswoman Martha Blackburn promised a “Congressional hurricane” in response to the FCC’s perceived ultra vires decision to regulate where Congress has refused to give it authority, a view supported by House and Senate counsel who spoke later in the day. Continue reading →
In the past we’ve commended the [FCC](http://techliberation.com/2009/10/21/cash-for-tv-spectrum-scheme-vs-a-property-rights-solution/) and [the administration](http://techliberation.com/2010/06/29/good-spectrum-news-from-the-obama-administration/) for their support of incentive auctions to move spectrum now held by broadcaster to its best valued use, likely mobile broadband. Now it’s time to applaud the new House leadership for similarly making moves in the right direction.
The Washington Post reports today that “[TV broadcasters resist FCC proposal to surrender more airwaves](http://www.washingtonpost.com/wp-dyn/content/article/2011/01/19/AR2011011907265.html),” and earlier this month Chairman Genachowski [expressed uncertainty](http://thehill.com/blogs/hillicon-valley/technology/137443-genachowski-no-bets-on-congress-oking-an-fcc-priority) about whether he would get congressional support for incentive auctions. But now comes word that newly inaugurated House Energy and Commerce Chairman Fred Upton is likely to include spectrum incentive auctions in new broadband rules. It’s great to see Republicans and Democrats coming together on good policy, especially in the face of opposition from a lobby as powerful as the broadcasters.
Moreover, today we also find out that the committee leadership is also [considering](http://thehill.com/blogs/hillicon-valley/technology/138857-house-republicans-might-ok-spectrum-policy-opposed-by-verizon-atat) a commercial auction of the [infamous D Block](http://techliberation.com/2008/03/31/public-safety-spectrum-here-we-go-again/) spectrum, which public safety wants simply allocated to them. This puts the E&C leadership at odds with AT&T and Verizon, who [oppose](http://www.businessweek.com/news/2010-06-17/at-t-verizon-join-police-to-fight-fcc-airwaves-plan-update1-.html) auctioning the D Block and would [rather see](http://urgentcomm.com/policy_and_law/commentary/wireless-carriers-support-public-safety-d-block-200904/) a taxpayer-built built public safety network on the band. (Aside: While I’m all in favor of auction as an allocation method, I am [skeptical](http://techliberation.com/2008/04/15/just-sell-off-the-d-block/) at solving the public safety interoperability problem by simply throwing money at the existing system.)
So cheers to the new House leadership. Now that everyone’s one the same page (fingers crossed), this should be an easy win for smart policy.
The smartphone is arguably one of the most empowering and revolutionary technologies of the modern era. By putting the processing power of a personal computer and the speed of a broadband connection into a device that fits in a pocket, smartphones have revolutionized how we communicate, travel, learn, game, shop, and more.
Yet smartphones have an oft-overlooked downside: when they end up in the wrong hands, they offer overreaching agents of the state, thieves, hackers, and other wrongdoers an unparalleled avenue for uncovering and abusing the volumes of sensitive personal information we increasingly store on our mobile phones.
Over on Ars Technica, I have a long feature story that examines the constitutional and technical issues surrounding police searches of mobile phones:
Last week, California’s Supreme Court reached a controversial 5-2 decision in People v. Diaz (PDF), holding that police officers may lawfully search mobile phones found on arrested individuals’ persons without first obtaining a search warrant. The court reasoned that mobile phones, like cigarette packs and wallets, fall under the search incident to arrest exception to the Fourth Amendment to the Constitution.
California’s opinion in Diaz is the latest of several recent court rulings upholding warrantless searches of mobile phones incident to arrest. While this precedent is troubling for civil liberties, it’s not a death knell for mobile phone privacy. If you follow a few basic guidelines, you can protect your mobile device from unreasonable search and seizure, even in the event of arrest. In this article, we will discuss the rationale for allowing police to conduct warrantless searches of arrestees, your right to remain silent during police interrogation, and the state of mobile phone security.
Continue reading →
This is Part IV of a five-part commentary on the FCC’s Dec. 23, 2010 “Open Internet” Report and Order.
Part I looked at the remarkably weak justification the majority gave for issuing the new rules.
Part II explored the likely costs of the rules, particularly the undiscussed costs of enforcement that will be borne by the agency and accused broadband access providers, regardless of the merits. (See Adam Thierer’s post on the first attenuated claim of violation, raised before the rules even take effect.)
Part III compared the final text of the rules to earlier drafts and alternative proposals, tracing the Commission’s changing and sometimes contradictory reasoning over the last year.
Part IV, (this part), looks at the many exceptions and carve-outs from the rules, and what, taken together, they say about the majority’s dogged determination to see the Internet as it was and not as it is or will become.
Part V will review the legal basis on which the majority rests its authority for the rules, likely to be challenged in court.
What does an Open Internet mean?
The idea of the “open Internet” is relatively simple: consumers of broadband Internet access should have the ability to surf the web as they please and enjoy the content of their choice, without interference by access providers who may have financial or other anti-competitive reasons to shape or limit that access. Continue reading →
A group of regulatory advocates that includes Free Press, Media Access Project and the New America Foundation, have fired off a letter to the Federal Communications Commission (FCC) requesting action against the nation’s #5 mobile provider, MetroPCS. These regulatory groups claim that “new service plans being offered by mobile provider MetroPCS block and discriminate against Internet content, applications and websites.” Wired’s Ryan Singel summarizes what the fight is about:
At issue are new, tiered 4G data plans from the nation’s fifth largest mobile carrier, which specializes in pay-as-you-go mobile-phone service. The new plans offer “unlimited web usage” for all three tiers, which cost $40, $50 and $60 a month. But MetroPCS’s terms exclude video sites other than YouTube from “unlimited web usage,” and block the use of internet-telephony services such as Skype and Tango. The terms of service also make it very unclear whether users would be allowed to use online-radio services such as Pandora.
The parties petitioning the FCC for regulatory intervention claim that “MetroPCS appears to be in violation of the Commission’s recently adopted open Internet rules” even though they note that “these rules have not yet taken effect.”
There are four things I find interesting about this hullabaloo: Continue reading →
For CNET, I posted a long piece describing a full day at CES’s Tech Policy Summit largely devoted to spectrum issues. Conference attendees in several packed sessions heard from FCC Chairman Julius Genachowski and three of the four other FCC Commissioners (Commissioner Copps was absent due to illness), as well as former Congressman Rick Boucher and industry representatives.
The message was as clear as it is worrisome. The tremendous popularity of wireless broadband, on view in a remarkable range of new devices and gizmos on display at the Vegas Convention Center, is rapidly outpacing the radio frequencies available to handle the data.
The mobile Internet needs more spectrum, and there isn’t any to give it. The app revolution is in danger of hitting a hard stop, perhaps as soon as 2015.
As the exclusive manager of America’s radio waves, only the FCC can reallocate spectrum. And the good news is that the agency recognizes the crisis as well as its role in solving it. Chairman Genachowski told the audience that spectrum reform will be the agency’s top priority for 2011.
Reading the Chairman’s prepared comments, however, I was struck by the sense that I’d heard something similar before. Perhaps in the very same room. Perhaps by the very same speaker. Continue reading →
I published an article for CNET late last night on a spirited debate at CES yesterday over the FCC’s recently-enacted “open Internet” rules, aka net neutrality. Panelists from the FCC, Congress, AT&T, Verizon, Google and the Center for Democracy and Technology actually agreed on one point, which is that the neutrality saga has only completed its first chapter.
(The session was the most popular of the day. Several people were turned away from the packed room, and former Congressman Rick Boucher and FCC Commissioner Mignon Clyburn almost didn’t get in!)
While some panelists believe the next step is more regulation, others promised Congressional and perhaps court challenges aimed at undoing the Commission’s “Christmas Surprise.” As I note in the piece, the new Congress, with its Republican majority in the House, has already taken up reversing the rulemaking as a priority. Rep. Marsha Blackburn has introduced legislation, signed by 60 other members including at least one Democrat, that would make clear the FCC’s lack of authority over broadband access. Continue reading →
In Part I of this analysis of the FCC’s Report and Order on “Preserving the Open Internet,” I reviewed the Commission’s justification for regulating broadband providers. In Part II, I looked at the likely costs of the order, in particular the hidden costs of enforcement. In this part, I compare the text of the final rules with earlier versions. Next, I’ll look at some of the exceptions and caveats to the rules—and what they say about the true purpose of the regulations
In the end, the FCC voted to approve three new rules that apply to broadband Internet providers. One (§8.3) requires broadband access providers to disclose their network management practices to consumers. The second One (§8.4) prohibits blocking of content, applications, services, and non-harmful devices. The third One (§8.5) forbids fixed broadband providers (cable and telephone, e.g.) from “unreasonable” discrimination in transmitting lawful network traffic to a consumer.
There has of course been a great deal of commentary and criticism of the final rules, much of it reaching fevered pitch before the text was even made public. At one extreme, advocates for stronger rules have rejected the new rules as meaningless, as “fake net neutrality,” “not neutrality,” or the latest evidence that the FCC has been captured by the industries it regulates. On the other end, critics decry the new rules as a government takeover of the Internet, censorship, and a dangerous and unnecessary interference with a healthy digital economy. (I agree with that last one.)
One thing that has not been seriously discussed, however, is just how little the final text differs from the rules originally proposed by the FCC in October, 2009. Indeed, many of those critical of the weakness of the final rules seem to forget their enthusiasm for the initial draft, which in key respects has not changed at all in the intervening year of comments, conferences, hearings, and litigation. Continue reading →
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