Blogger’s Note: I posted this blog entry over at BroadbandCensus.com earlier in the day. It’s the first of series this week — One Web Week — in which I’m taking a step back to look at the issue of broadband data and broadband transparency from a bit of a longer time frame. And today couldn’t be a more timely day to do so, with Genachowski’s speech highlighting a new sixth principle of Network Neutrality: broadband transparency! -Drew Clark

WASHINGTON, September 21, 2009 – Broadband data is important for the future of our country – and public and transparent broadband data is even more important.

Today, at this moment, new Federal Communications Commission Chairman Julius Genachowski is making a speech in which he is highlighting the vital principle of public and transparent broadband data.

For three years now, this principle has been the core belief animating my efforts as a journalist, and as the entrepreneur founding BroadbandCensus.com. Now, as we enter the fourth year since this saga began, it’s time to take stock and reflect on what BroadbandCensus.com has accomplished.

And with One Web Week having arrived, I’d like to lay out this history from a personal perspective. In this series of blog posts, I’m going to speak about what we’ve been through, who we have worked with to advance the principles of public and transparent broadband data, and what we ultimately aim to achieve at BroadbandCensus.com.

• Today’s topic: The debate begins, with the Freedom of Information Act lawsuit in 2006.
• Tomorrow’s topic, on One Web Day: The founding of BroadbandCensus.com in the fall of 2007.
• Wednesday topic: The Broadband Census for America Conference in September 2008, and our work with the academic community to foster public and transparent broadband data-collection efforts.
• Thursday’s topic, in advance of the U.S. Broadband Coalition’s report to the Federal Communications Commission: BroadbandCensus.com’s involvement with the National Broadband Plan in 2009.
• The concluding topic, on Friday morning: The role BroadbandCensus.com and broadband users have to play in the creation of a robust and reliable National Broadband Data Warehouse.

The Beginnings: Why I Sued Kevin Martin’s Federal Communications Commission

BroadbandCensus.com was founded in October 2007 after I spent nearly a year and a half with the Center for Public Integrity, a non-profit investigative journalism organization based here in Washington. But the quest for public and transparent broadband data goes back further.

For more than 15 years, I have covered the politics of telecom, media and technology. Most of that was spent at the National Journal Group in Washington, a key source of inside information about policy and lobbying. My aim there, as it is now, was to ensure that all the facts are brought to the table, that divergent viewpoints are fairly represented, and that questions asked go to the center of the debate.

When it came to broadband, the looming questions were and still are: where do we have broadband in the United States, and who is offering it? What kind of service is promised, and are carriers delivering on those promises?

In 2006, issues of broadband policy lurked in the background of many major political and media controversies: Net neutrality, online piracy, media ownership and control, the build out of high-speed networks, both wired and wireless, and the role of Web 2.0 in government and society. Whatever the ultimate resolutions for each of these controversies, the first step was better broadband data.

At this time, I headed the Center for Public Integrity’s media and telecommunications project, “Well Connected.” We were expanding its focus on media ownership to the new source of media control: the nation’s broadband infrastructure.

The Federal Communications Commission had a database about the carriers that offer broadband by ZIP code. This database is created from the carriers filing the Form 477 with the FCC. The FCC publishes other databases of the locations of radio and television broadcasters, and of cable companies. We asked for a copy of the Form 477 database in August 2006. At that time, we cited the Freedom of Information Act.

An FCC staff member called me to discuss arrangements for getting our electronic copy. When I called the FCC staffer back, less than 45 minutes later, he told me that he had been instructed not to talk to me further. From that point on, only Kevin Martin’s lawyers would do the talking.

The FCC missed their 20-day deadline to timely respond to our FOIA letter. On September 25, 2006, the Center for Public Integrity filed suit in federal district court , seeking to enforce our FOIA request. We asked the district court to grant us access to the Form 477 database, with information about subscriber numbers redacted (if necessary). The end result would be a database with the names of the carriers that offer broadband on a ZIP code basis.

Even though the FCC has been collecting the Form 477 since 2000, and already has a database of all of this information, they have only ever released the number of providers within a ZIP code, and not the names of the providers. Even then, the agency only released the number if the number was four or more – out of an excessive concern for identifying carrier information.

That’s like saying that the government will restrict the release of information it has about how many gas stations there are in your town if there are not four or more gas stations in town. In any case, the government won’t tell you the names of the gas stations, or where you can find them, so that you can buy gas. And most definitely, they won’t share the prices at which the gas stations sell gas.

“We filed suit against the FCC to obtain the data that the public and policy-makers need in order to get a complete and accurate picture of the current state of broadband,” I said at the time.

Broadband Providers Seek to Forestall Publication of Carrier-Level Broadband Data

I’ve recounted the story of the FOIA litigation at great length, in June 2007, in a story, “Center Spearheads Efforts to Disclose Broadband Data,” and in February 2009 in Ars Technica, “US broadband infrastructure investments need transparency.”

We were seeking something quite straightforward: the identities of broadband carriers that offer service within a particular geographic location. At the time, we were seeking ZIP code information, because that was the best information that the FCC had. I and many others have long recognized that ZIP codes are extremely problematic and coarse unit of measurement. And that is why it is extremely positive that, in July 2009, the NTIA declared that it needed broadband information by Census block.

But in 2006 and 2007, getting carrier-level broadband data by ZIP would have been a good first step. Then-Chairman Kevin Martin, of course, was never a fan of public disclosure. After his agency nixed any sort of collaboration or compromise in approaching our FOIA request, Martin sought to shore up support from industry. On December 15, 2006, the agency issued a “Public Notice to Service Providers Who Filed FCC Form 477s With The Commission And Sought Confidential Treatment Of The Information Submitted.”

AT&T and Verizon Communications, along with the Wireless Communications Association International, intervened in the lawsuit. Others filed as “friends of the court,” on the side of the FCC. The public notice and the interventions forced Judge Rosemary Collyer to recuse herself from the case, as she owned stock in AT&T. The case went to Judge Ellen Huvelle.

“As a non-profit publisher of investigative journalism committed to transparent and comprehensive reporting both in the U.S. and around the world, the Center for Public Integrity believes that making data about the names of the broadband provider on a ZIP code-by-ZIP code basis would allow consumers to ‘truth-check’ the FCC data,” I wrote at the time. “Adding citizen-provided information about the speed, quality and price of such connections would, in turn, create a robust collection of information further informing telecommunications-related public policy debates.”

In their defense, the carriers said that disclosure would cause them competitive harm – the legal standard for denying the disclosure of data under the Freedom of Information Act.

In our legal briefings, the Center noted “that all of the major communications companies – including cable, wireless and telecom players – already provide ZIP code lookup of service availability on their Web sites.” If the information was not available on web site, the information was readily available by calling up the carrier and asking if service was available at that address. Because such information was already readily-discoverable, aggregating the data on a single web site would not cause competitive harm, either.

Among those who intervened in the suit, some sincerely believed that disclosure would have caused them harm. Others litigated merely because of the possibility of a negative FOIA precedent. Whatever the case, Kevin Martin’s FCC certainly went all-out to defend restrictions on data.

In its legal briefings, the FCC argued that releasing the data would lead to competition in communications. “Disclosure could allow competitors to free ride on the efforts of the first new entrant to identify areas where competition is more likely to be successful,” the agency told the federal district court in Washington.

It was supremely ironic that that the FCC and the communications industry were fighting our efforts to obtain public and transparent broadband data at the same time that Congress and the FCC began to clamor for precisely that which we were seeking: better broadband data to address a range of policy concerns.

Together with my friend Scott Wallsten, then of the Progress and Freedom Foundation (later with Technology Policy Institute, and now at the FCC), the Center for Public Integrity organized a Conference on Broadband Statistics on June 28, 2007, at the National Academy of Science.

Scott and I gathered an assemblage of many people, including officials from Comcast, Verizon, AT&T, ConnectKentucky, plus leading academics and policy practitioners in the field, including experts from Information Technology and Innovation Foundation, Pew Internet and American Life Project, and the University of Texas at Austin, to consider precisely these questions. Audio from the June 2007 conference is available here; a transcript of the proceeding is available here.

More recently, Wallsten’s appointment as the economics director of the FCC’s broadband task force has prompted some controversy. But Wallsten has always been supportive of my efforts – and those of others in the field – to push for greater disclosure of broadband data. See “What Disconnect?,” and “Hiding the Broadband Map.”

The Aftermath: Kevin Martin and Me

Unfortunately, the Center lost the lawsuit when Judge Huvelle ruled against the Center in August 2007, and again in October 2007 after a motion for reconsideration. I’ll talk briefly in Tuesday’s blog post about the founding of BroadbandCensus.com in the aftermath of this defeat, and on Wednesday about BroadbandCensus.com’s efforts, in 2008, to advance public and transparent broadband.

But it’s worth fast-forwarding to get to the end of the Kevin Martin story.

Martin’s tenure at the FCC was marked by his repeated jokes about how he led the FCC like the KGB. That would seem to be of a piece with denying Freedom of Information Act requests like the one I initiated.

Yet I never anticipated just how pointed his criticism of public and transparent broadband data could be. I had been invited to speak at the National Association of Regulatory Utility Commissioners’ and the FCC’s joint conference on broadband deployment and data at the FCC, in San Jose, on November 6, 2008 – two days after the presidential election.

In my presentation, on the background to and requirements of the Broadband Data Improvement Act, I referred to the Center’s FOIA lawsuit, quoted in the section above, about how the FCC didn’t want disclosure of carrier data to lead to greater competition. Kevin Martin interrupted my presentation seven times! He disagreed with my characterization of the FCC’s position on broadband data.

“It was actually also because the carriers do not want it to be disclosed, and so it was not provided in a public way,” Martin first interjected. I disagreed with him, saying that “The FCC chose through its discretion over a period of time not to release information about carrier by carrier level.”

To which Martin replied, “I am not going to have an argument with you over it. I think we should move on…. This is not about FOIA litigation. No one is interested in that.”

I came back with, “I am just pointing out that the law does not need to be changed for the FCC to release this data.”

And that still isn’t the end of the story.

Two weeks later, on November 18, 2008, Kevin Martin was back in Washington for what appeared to be his final swan song: accepting an award at the Phoenix Center for Advanced Legal and Economic Public Policy Studies at the National Press Club. Martin gave his remarks, and was praised by the Phoenix Center. After chatting with journalists for a few minutes, we all went our separate ways.

Later, as I was walking over to the elevator to depart, I saw the elevator door closing on Kevin Martin and his long-time chief of staff, Dan Gonzalez.

Martin opened the doors by pushing the open button, and I walked in. Martin asked me what I had in my hands. It was a box with flyers, so I handed him a flyer from BroadbandCensus.com, and told him a bit about our next upcoming activity as the elevator went to the ground floor.

As we stepped into the lobby, I asked Martin if he had a nice trip back from the broadband data conference in San Jose.

He chuckled somewhat under his breath, and then said: “You may not believe this, but I think what you are doing is a good thing. I just can’t end up giving it to you.”

About BroadbandCensus.com

My piece about the U.S. Chamber of Commerce event last Friday on U.S. intellectual property attachés giving a report, and taking a hard line, on the enforcement of U.S. intellectual property, overseas, is now live on ip-watch.org.

Here’s the first couple of paragraphs:

WASHINGTON, DC – Nations ranging from Brazil to Brunei to Russia are failing to properly protect the intellectual property assets of US companies and others, and international organisations are not doing enough to stop it, seven IP attachés to the US Foreign and Commercial Service lamented recently.

Meanwhile, an industry group issued detailed recommendations for the incoming Obama administration’s changes to the US Patent and Trademark Office.

The problems in other nations extend from Brazil’s failure to issue patents for commercially significant inventions by US inventors, to an almost-complete piracy-based economy in Brunei, to an only-modest drop in the rate of Russian piracy from 65 percent to 58 percent.

The attachés, speaking at an event organised by the US Chamber of Commerce and its recently beefed-up Global Intellectual Property Center (GIPC), blasted the record of familiar intellectual property trouble zones like Brunei, Thailand and Russia.

But the problems extend to the attitudes and omissions of major trading partners like Brazil, India and even well-developed European nations, said the attachés.

[more at http://www.ip-watch.org/weblog/index.php?p=1387….]

Four-and-a-half years ago, I wrote this piece about how a converging media undermines the FCC’s rationalle for indecency enforcement. The piece, “TV Has Grown Up. Shouldn’t FCC Rules?” first appeared in the Washington Post Outlook section on Sunday, May 16, 2004, and it remains more relevant today than ever: the Supreme Court is today considering Federal Communications Commission v. Fox Television Station, a case about whether the FCC acted properly in sanctioning Fox over the use of the words “fuck” and “shit” on broadcast television.

Readers of Tech Liberation Front may be interested in a new breakfast series that BroadbandCensus.com has recently begun.

The next event in this series, “Should Government Funding Be Part of a National Broadband Plan?” will be held on Tuesday, November 18, from 8 a.m. to 10 a.m., and will include Stan Fendley, the director of legislative and regulatory policy for Corning, Inc., Kyle McSlarrow, CEO of the National Cable and Telecommunications Association (NCTA), and John Windhausen, Jr., president of Telepoly Consulting. I will moderate the discussion.

Two weeks after Election Day, this Broadband Breakfast Club meeting will consider one of the hottest topics in telecom: can and should funding for broadband work its way into a pending fiscal stimulus package?

Future meetings of the breakfast club (December 2008 through March 2009) will consider the role of broadband applications in harnessing demand, how the universal service fund will be changed by high-speed internet, the role of wireless in universal broadband, and the extent of competition in the marketplace.

The Broadband Breakfast Club meets monthly at the Old Ebbitt Grill, at 675 15th Street, NW, in Washington. (It’s right across the street from the Department of the Treasury.)

Beginning at 8 a.m., an American plus Continental breakfast is available downstairs in the Cabinet Room. This is followed by a discussion about the question at hand, which ends at 10 a.m. Except for holidays (like Veteran’s Day), we’ll meet on the second Tuesday of each month, until March 2009. The registration page for the event is http://broadbandbreakfast.eventbrite.com.

Because of the limited size of the venue, seated attendance will be reserved the first 45 individuals to register. There are no restrictions on who may register to attend. With the exception of speakers, there is a $45.00 charge (plus a modest Eventbrite fee) to attend. The events are on the record.

We kicked off this series earlier this month with a well-attended breakfast on “10 Years Under the Digital Millennium Copyright Act: Success or Failure?”

I started the Broadband Breakfast Club for the same reason that I started BroadbandCensus.com earlier this year: I believe that American consumers, policy-makers and broadband providers need better information about the issues surrounding high-speed internet access.

Today, broadband is (or could) the driver of citizen engagement, commerce, democratic participation, education, entertainment, health care and potential environmental gains through wider telecommuting. And yet basic information about where particular broadband company offers service – and at what price and at what speed – is not conveniently available in a single, public source. The free web service BroadbandCensus.com aims to change that by going directly to individual internet users for their feedback.

Our Broadband Breakfast Club series is directed more at Washington policy-makers and influencers. But again, we are seeking to broaden the discussion by allowing all to participate. The goal of this breakfast series is to bring an informed consensus – or, failing that, an informed disagreement – around key broadband policy questions.

With the dawn of a new administration – and the prospect of a systematic approach to high-speed internet issues for the first time in nearly a decade – now is the time to undertake these discussions.

Further, the breakfast events that we’re hosting now will lead up to our Spring 2009 conference, “Broadband Census for America: The New Administration.” The Spring 2009 conference – bringing together federal, state and local officials, academic researchers and other interested parties around the issue of broadband data – is tentatively scheduled for Friday, March 27, 2009, here in Washington.

If you have questions or thoughts about upcoming events in the Broadband Breakfast Club series, or about the Spring 2009 conference, “Broadband Census for America: The New Administration,” or about BroadbandCensus.com in general, feel free to contact me: drew at broadbandcensus.com, or at 202-580-8196.

As with everything on BroadbandCensus.com, this blog post is under our Creative Commons Attribution Noncommercial License. That means you can copy, send, repost and redistribute it. Please do so! The URL for this post is http://broadbandcensus.com/blog/?p=923, and the URL for the registration page is http://broadbandbreakfast.eventbrite.com.

It’s nearing Halloween, so it must mean the anniversary of the Digital Millennium Copyright Act is just around the corner. In fact, it was 10 years ago, on Sunday, that Congress passed the DMCA, on October 12, 1998. The law was signed by President Clinton on October 28, 1998.

The information and news service that I have launched, BroadbandCensus.com, is “celebrating” the passage of the law with the inaugural event of the Broadband Breakfast Club. The breakfast event will take place on Tuesday, October 14, from 8 a.m. to 10 a.m., at the Old Ebbitt Grill at 675 15th Street NW, Washington, DC.

This event will bring together several key stakeholders together to share perspectives on this topic:

• Drew Clark, Executive Director, BroadbandCensus.com (Moderator)
• Mitch Glazier, Senior Vice President, Government Relations, Recording Industry Association of America
• Michael Petricone, Senior Vice President, Government Affairs, Consumer Electronics Association
• Wendy Seltzer, Practitioner in Residence, Glushko-Samuelson Intellectual Property Law Clinic, American University Washington College of Law
• Emery Simon, Counselor, Business Software Alliance

Breakfast for registrants will be available beginning at 8:00 a.m., and the forum itself will begin at around 8:30 a.m., and conclude promptly at 10 a.m. The event is open to the public. The charge for the breakfast is $45.00, plus an Eventbrite registration fee. Seated attendance is limited to the first 45 individuals to register for the event.

Future events in the Broadband Breakfast Club monthly series will feature other key topics involved in broadband technology and internet policy. In fact, you can mark your calendar for the next event on Tuesday, November 18, from 8 a.m. to 10 a.m., also at the Old Ebbitt Grill.

For more information about BroadbandCensus.com, or about the Broadband Breakfast Club at Old Ebbitt Grill – on the second Tuesday of each month – please visit http://broadbandcensus.com, or call me at 202-580-8196.

Note: Here’s a second post I just put live at DrewClark.com. It refers to an upcoming conference, on Friday, October 3, sponsored by the Information Economy Project at George Mason University School of Law. It will be held at 8:30 a.m. at the National Press Club. Registration details are below.

In the United States, the regulation of broadcast radio and television has always been done under a different standard than the regulation of the print medium.

As Secretary of Commerce in the administration of President Calvin Coolidge, Herbert Hoover declared: “The ether is a public medium, and its use must be for a public benefit,” he said at the Fourth National Radio Conference, in 1925. “The dominant element for consideration in the radio field is, and always will be, the great body of the listening public, millions in number, country-wide in distribution.”

When Congress created the Federal Radio Commission in 1927, it decreed that broadcasting was to serve the “public interest, convenience and necessity,” and this standard was re-affirmed in the Communications Act of 1934. Several Supreme Court decisions — albeit decisions that have been much criticized — affirmed that broadcasting could and should be treated differently than the traditional “press.”

This differential treatment for broadcasting — versus the print medium, and also cable television — was underscored by the decisions in Red Lion Broadcasting Co. v. FCC (1969), which upheld the “Fairness Doctrine,” and also FCC v. Pacifica Foundation (1978), which upheld indecency rules for over-the-air broadcast television. The Fairness Doctrine required broadcasters to grant reply time to those who said their views were criticized.

The Fairness Doctrine upheld in Red Lion was premised on the notion that electromagnetic frequencies, being “scarce,” needed to be rationed through a government-granted license. (It took economist Ronald Coase to note that airwaves are no more scarce than pulp and printing presses.) Station owners were thus periodically licensed as “public trustees” and obligated to either air different points of view, or return their spectrum.

Hence the nascent broadcasting medium was never allowed to develop with the full panoply of First Amendment protections for opinion, commentary, and outright partisanship, as were newspapers. The Pacifica decision underscored this result, holding that George Carlin’s “Filthy Words” monologue, even though not obscene, could be banned by the Federal Communications Commission.

President Ronald Reagan took a dim view of broadcasting’s “specialness.” In the memorable words of his FCC Chairman, Mark Fowler, television is “just another appliance — it’s a toaster with pictures.” Fowler and his successor, Dennis Patrick, worked together with the D.C. Circuit Court of Appeals and finally killed the Fairness Doctrine in 1987. They argued that it chilled free speech, and the appeals court agreed that the agency was entitled to drop the doctrine. Notwithstanding two congressional pushes to overturn the FCC — vetoed by Presidents Reagan and the first President Bush — the Fairness Doctrine was never re-instituted.

But the issue of what else, specifically, broadcasters were required to do to fulfill their public interest obligations came to a head under President Clinton and FCC Chairman Reed Hundt. Hundt pushed for the imposition of a mandatory three hours a week of children’s television – a requirement contemplated by the Children’s Television Act of 1990.

The rise of digital television also complicated this inquiry. As I discussed in my blog post earlier today, “Do TV Broadcasters Have Obligations to the Public,” Congress chartered an advisory committee to consider this question. As part of the Telecom Act of 1996, Congress paved the way for a new allocation of radio-frequencies so that broadcasters could also transmit their signals digitally. But it also specifically inserted language in the act, stating:

Nothing in this section shall be construed as relieving a television broadcasting station from its obligation to serve the public interest, convenience, and necessity. In the [FCC’s] review of any application for renewal of a broadcast license for a television station that provides ancillary or supplementary services, the television licensee shall establish that all of its program services on the existing or advanced television spectrum are in the public interest.

But it would take a commission — specifically, the Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters (“Gore Commission”) — to sort through and analyze those specific obligations.

Next post: What Were the Gore Commission’s Findings, and How Do they Apply to the Video Future?

Resources:

• “Charting the Digital Broadcasting Future,” the final report of the Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters” [PDF]
• “Citizen’s Guide to the Public Interest Obligations of Digital Television Broadcasters“, Benton Foundation.

Conference Program:

A mini-conference • Friday, October 3, 2008, 8:30 a.m.The Gore Commission, 10 Years Later: Th e Public Interest Obligations of Digital TV Broadcasters in Perfect Hindsight

A mini-conference • Friday, October 3, 2008, 8:30 a.m. National Press Club, 529 14th St. NW, 13th Floor, Washington, DC

Note: Here’s a post I just put live at DrewClark.com. It refers to an upcoming conference that might be of interest to Tech Liberation readers. Make sure to follow the link to the bottom of the post for registration information for this FREE conference, to be held tomorrow, Friday, October 3, at 8:30 a.m.

If all goes according to plan, on February 17, 2009, television broadcasters will power down their analog transmitters. They will be broadcasting their signal only digitally.

After more than 20 years in the long transition to digital television, this might be considered progress. Now, millions of Americans are collecting vouchers from the Commerce Department to subsidize their purchase of converter boxes. These are the electronic devices that take the digital signals — and convert them back to analog — so that viewers without high-definition televisions can watch broadcast TV on their old sets.

What about the bigger questions? Is there any benefit to the public, or to consumers, from the transition to digital television? What about the vaunted visions of hundreds of broadcast channels, through multi-casting? What would be the new public-interest obligations, if any, of broadcasters? This question has definitely not been resolved.

It may come back to this question: what was the point of making this move to digital and high-definition television? I recounted some of this history in “Spectrum Wars,” a 2005 article in National Journal magazine:

[The National Association of Broadcasters] seized upon a new technology out of Japan called high-definition TV. Compared with the 45-year-old U.S. standard, the sharper, high-resolution images used twice as many lines on a television screen, and broadcasting a program required two television channels instead of one. For broadcasters, that was just the point: High-definition gave them a way to fend off the FCC’s effort to grab frequencies back and turn them over to other uses. The broadcasters lobbied the agency to postpone the spectrum reallocation [currently being considered for cellular telephones] and to study the new technology. The NAB worked its magic on Capitol Hill, inviting Japanese broadcaster NHK to Washington and rolling big-screen Sony TVs into a hearing in the Senate Caucus Room. Fear of Japanese competition was at fever pitch in Washington. Congress was stunned by the picture quality and frenzied at the prospect that the Japanese would outflank American manufacturers of televisions, just as they had done to the makers of videocassette recorders. Rep. Ed Markey, D-Mass., then-chairman of the House Commerce Telecommunications Subcommittee, took up their cause, and Congress pressured the FCC to leave the spectrum assignments alone on the condition that broadcasters develop HDTV. […] But there was still a problem. Existing TV broadcasting equipment could not send digital signals, and existing analog television sets couldn’t receive digital signals. Broadcasters would have to invest in new television cameras and towers for digital signals, and consumers would have to spend thousands of dollars apiece on new sets. During the transitional period, each broadcaster would need two channels, one for analog and one for digital. Broadcasters turned to Congress, now in Republican hands, and lobbied for a new compact: We’ll give you HDTV if you give us a second channel, for free, until Americans have made the switch. “It was understood that the channels would be loaned for a period of years to prevent consumers from losing television,” said Robert Seidel, vice president of engineering for CBS Broadcasting.

Congress initially approved a transition to digital in 1997, setting year-end 2006 as the target transition date. But a loophole rendered the 2006 irrelevant until congress revisited the issue and, on February 1, 2006, fixed February 2009 as the end-date for the transition.

In the intervening decade, the question of broadcasters’ public interest obligations has been intermittently revived. Most significantly, as a result of the 1996 Telecommunications Act, an Advisory Committee on Public Interest Obligations of Digital Television Broadcasters was created. It became popularly known as the “Gore Commission.”

Unlike other modes of communications, broadcasters are regulated as a “public trustee.” This means that they must meet certain obligations — by airing children’s television, or by including coverage of civic and political events, for example — that are not required of their counterparts on cable or the print medium.

At the time of the Gore Commission, one voice in the debate was Henry Geller, a former FCC general counsel who has continued to work on broadband matters as a private citizen. He was an FCC attorney before rising to general counsel in 1964-1970, later serving as an assistant to FCC Chairman Dean Burch, from 1970-1974, and then becoming the head of the National Telecommunications and Information Administration under President Carter, from 1978-1981.

In a 2000 hearing on the subject before Congress, Geller suggested the following (reprinted in Current magazine):

I urge you to consider the following: Scrap the public trustee content scheme, and treat broadcasting like its main rival, cable, which pays up to 5 percent of gross revenues for use of the public streets for cable rights-of-way (significantly, the public makes little or no distinction between cable and broadcast channels). By taking some modest fee from commercial broadcasters for their use of the public spectrum in lieu of the public trustee obligation, noncommercial television could be adequately funded to deliver high-quality public service programming. The objective is to obtain such programming, but since the government soundly cannot review for quality, we are dependent upon the broadcaster to present the high-quality public service programs. The noncommercial system has demonstrated that it will strive to do so; the commercial system, under fierce and growing competition, has no such history or incentive.

Geller instead suggested a 1 percent spectrum fee on gross advertising revenues, netting about $250 million at the time, and going to fund educational programming on public television

Geller also argued, with respect to political content:

There is one other recommendation to Congress—affording free time to candidates as an important part of campaign finance reform. The details of such an effort are of course to be fashioned by Congress. Since it would obligate broadcasters to allocate a relatively large amount of air time every two years (or perhaps issue vouchers for purchase of that air time), the free time provision, along with the above 1 percent figure in the educational field, would constitute the full broadcaster contribution in lieu of its present public trustee obligation. This would be a meritorious conclusion, because an educated and informed electorate is so vital to the proper functioning of our democracy.

Geller, together with two officials involved in the Gore Commission — Norman Ornstein and Gigi Sohn — will present their reflections at a forum TOMORROW, on Friday, October 3: “The Gore Commission, 10 Years Later: The Public Interest Obligations of Digital TV Broadcasters in Perfect Hindsight.” The event, to be held beginning at 8:30 a.m. at the National Press Club, will feature is sponsored by the Information Economy Project at George Mason University School of Law, of which I am the assistant director. The full program is available at http://iep.gmu.edu. Admission to the event is free and open to the public. To reserve your spot, please email Drew Clark at: iep.gmu@gmail.com.

Later today, I’ll be returning to this theme with two more blog entries in this spot:

• What Did the Gore Commission Accomplish?
• How Do the Gore Commission’s Finding Apply to Our Video Future?

Conference Program:

A mini-conference • Friday, October 3, 2008, 8:30 a.m.The Gore Commission, 10 Years Later: Th e Public Interest Obligations of Digital TV Broadcasters in Perfect Hindsight

A mini-conference • Friday, October 3, 2008, 8:30 a.m. National Press Club, 529 14th St. NW, 13th Floor, Washington, DC

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/