The Next FCC: No More Monkey Business?

Today's big news for communications policy wonks is that apparently Julius Genachowski will be tapped for FCC Chairman. The pick is Obama's first big imprint on the Commission. Although it is not a surprise, it is probably a smart move. Genachowski is an FCC veteran with deep knowledge of the technology industry (as General Counsel for IAC and as a tech venture capitalist).

The news comes in the midst of growing calls for FCC reform from folks like Silicon Flatirons and Public Knowledge. The theme is that the FCC needs to re-orient its rules and processes to make more sense in a converging, Internet-oriented communications landscape. I heartily agree.

Of course, this is not the first wave of calls for reform. Back in 2005 the DC think-tank Progress and Freedom Foundation spearheaded the "Digital Age Communications Act," which argued that the powers of the Commission should be radically curtailed and that the Communications Act should be rewritten as antitrust policy. This amounted to abolishing most of the Commission's traditional powers. The bill never went anywhere.

Recently, Larry Lessig has argued that we should do away with the FCC and replace it with a new entity. Lessig thinks that the Commission is rooted in outdated notions of monopoly rights and incumbent protection. He says, "You can't fix DNA. You have to bury it." His dream agency has two mandates: 1) agressively police monopoly and 2) ensure openness. Of course these two ideals are both hard to define and sometimes at odds. Nothing about creating a new agency will fundamentally change this reality. What's more, focusing heavily on market forces can often provide an excuse for ignoring the more socially motivated or mundane-but-essential roles of communications policymakers. Market considerations are undeniably important, but proposals to reduce everything to antitrust lose sight of what is unique about communications.

The key to Lessig's approach appears to be "a strong agency head, and a staff absolutely barred from industry ties." I agree with his first prescription, and it's possible that Genachowski could be a step in the right direction. If recent reports are to be believed, he'll likely be an improvement over the outgoing Chairman. To begin with, the House released a blistering critique last month, titled "Deception and Distrust: The Federal Communications Commission Under Chairman Kevin J. Martin." It cites FCC employee's references to being "Martinized" or "blue-boxed" -- their euphemisms for the Chairman's alleged habit of killing fact-based reports that didn't support his policy agenda. Then there was the recently released Federal Human Capital Survey, which showed that an embarrasingly low number of FCC employees -- 38 percent -- felt that "My organization's leaders maintain high standards of honesty and integrity." I am less persuaded that the FCC staff should be "absolutely barred from industry ties." I'm not even sure what that means. Does it mean that they never can have worked in industry? Does it mean that after serving they never can move to industry? It seems like a recipe for inexperienced, disconnected bureaucrats.

One man with a passion for banishing uninformed bureaucrats was the late, great, and entirely deranged televangelist Dr. Gene Scott. During his prolonged battle with the FCC, he would taunt the agency on-screen by representing it with a band of wind-up monkeys. He would often pick up his favorite, banging it on the head and exclaiming, "That's the only way to treat a bureaucrat!" I don't think that the appropriate solution to the shortcomings of the FCC is to beat the commissioners over the head with a stick, and I also don't think the solution is to abolish the agency altogether.

We don't have to "blow up" the FCC or reduce it to doing antitrust (we already have two agencies that are experts in that area). We could certainly use a re-write of the Communications Act that does away with the outdated and technologically siloed model of regulation in favor of an approach more closely matched to reality. We could also use good leaders. I am hopeful that today's announcement sets the course of the agency in the right direction.

Gene Scott and the FCC Monkey Band:

(sorry about the low audio)

Talk at Princeton CITP, Feb 5th

I'll be giving a talk at the Princeton Center for Information Technology Policy on February 5, along with Shubham Mukherjee. This will be a trial-run of a paper we're working on.

Title: Selling the Law: The Business of Public Access to Court Records
When: Thursday, February 5, 2009 - 4:30 PM
Where: Sherrerd Hall, Room 101

As government documents are increasingly digitized and put online, two orthogonal approaches to distributing these documents have developed. Under one approach, the documents are made easily and freely accessible. In others, the government retains or introduces barriers to access that are inspired by traditional physical access. When these barriers are fee-based, the government can inadvertently create downstream monopolies or architectures of control over public information. This problem is especially severe in the case of federal district court documents, which are available only via an outdated, fee-based, court-run system or from expensive aggregators like Lexis or Westlaw. Indeed, evidence indicates that the courts are using public access fees to subsidize other activities. If we are to be a nation of laws, citizens must have access to the law. The upfront cost of making court documents freely available is far outweighed by the long-term benefits to society. Widespread digitization combined with Internet connectivity has placed these benefits within reach. The courts must now address the task of revamping outmoded policies and funding structures in order to align their practice with this reality.

Radio Berkman: A (Porn) Free Nationwide Internet?

Berkman just posted an audio interview with me, where I discuss the FCC's proposal for the AWS-3 spectrum auction and how it was scuttled.

A scheduled FCC vote on a free nationwide wireless internet, was derailed this week after outcry from both the Bush administration, the ACLU, Congressional Democrats, and the digerati. What was it about the FCC’s proposal that raised the eyebrows of such a diverse group of opponents? David Weinberger interviews Stephen Schultze of the Berkman Center to find out more.

Listen here.

WSJ on Google and Net Neutrality - DEVELOPING

I have done the only sensible thing and put up a Drudge siren. It's appropriate given the level of research and care that went into today's Wall Street Journal article claiming, "Google Inc. has approached major cable and phone companies that carry Internet traffic with a proposal to create a fast lane for its own content, according to documents reviewed by The Wall Street Journal."

Suffice to say, the authors got it fundamentally wrong. They failed to understand basic networking concepts like colocation versus discrimination. Richard Whitt (full disclosure: my old boss and co-author of a forthcoming paper) wrote a charitable but biting reply. The best summary I've seen so far is actually this compendium of quotes: OMG! WSJ net-neutrality own-goal....

I'll keep updating this post as the brawl unfolds. Suffice to say, if you're looking for evidence of the mainstream press under-performing compared to the blog-o-sphere-o-pedia-space... look no further. WSJ has become Drudge, and the blogs are actually getting the story right.

And with that, all I can say is DEVELOPING...

• At 12:49pm, the WSJ posts "Discussing Net Neutrality" which notes, "Today’s Journal story on Google's plans to develop a fast track for its own content has certainly gotten a rise out of the blogosphere." Commenters, including Dan Gillmor, ask them why they aren't retracting or correcting the story.
• At 4:23pm, another WSJ post, "What's Edge Caching?," pulls quotes from blogs describing edge caching, generally making the case that although it is a common and well-known practice, this case is different.

Comedy Central's Indecision 2008: Obama Reassures Nerds on Net Neutrality:

Cheeto-stained keyboards all over the country were burning up this morning after The Wall Street Journal reported that President-elect Obama was flip-flopping on his pro-net-neutrality position and Google was in secret talks to buy preferential treatment for their content from service providers. But as it turns out, WSJ were just ObamaOpposesNetNeutralityRolling us.

And the surge of criticism:

• Lessig Blog: The Made Up Dramas of the Wall Street Journal
• Tim Wu Blog: Google Wall Street Journal - They haven’t got the goods
  
• TPM: Obama Spokesperson: His Commitment To Net Neutrality Hasn't Wavered One Bit
• Ars: Google backing off net neutrality with ISP deal? Not really
• ZDNet: Media used by cable to create Google scandal
• Wired Blog: WSJ WTF?
• Broadband Reports: The Wall Street Journal's Google Hatchet Job - Opinion: paper helps cable, telcos smear their biggest enemy...
  
• Scott Bradner: Google as evil, now from The Wall Street Journal: WSJ ends year showing a misunderstanding of technology
  
• Timothy B. Lee: The Journal Misunderstands Content-Delivery Networks
• Scott Rosenberg: Journal steps in Net neutrality hornet’s nest
  
• Conde Nast: Google Slams 'Confused' WSJ Story on Network Neutrality
• Wired: Google Blasts WSJ, Says it's Still 'Committed to Network Neutrality'
• PC World: WSJ Accuses Google of Abandoning Net Neutrality: Reality Check
• Reuters: Google says plan would not threaten net neutrality
• Harold Feld: The Google Non-Story On Network Neutrality
  
• Huffington Post, Tim Karr (of Free Press): WSJ Gets It Wrong. Net Neutrality Still in the Front Seat.
• ZDNet: Google turns on net neutrality (not!)
• IDG: Google, Microsoft Say They Still Support Net Neutrality
• MediaPost: Net Neutrality Advocates Rally To Google's Defense
• Siva Vaidhyanathan: Is Google giving up on Net Neutrality? Hardly.
• Center for Democracy and Technology: Neutrality and Caching
• Public Knowledge: Comment on Wall Street Journal ‘Net Neutrality’ Story
  

AWS-3 Vote Postponed Indefinitely

Late Friday, Chairman Martin canceled the October 18th FCC Open Meeting. This is a fairly exceptional development. The Commission was set to vote on the increasingly controversial rules for auctioning off the AWS-3 spectrum -- a 25MHz block of airwaves in the 2GHz range. Martin had been pushing for two fairly unique requirements on the ultimate winner: 1) That the winner must provide no-cost internet access on a portion of the spectrum and 2) That they must filter "objectionable material" (possibly with an opt-out for adults). In July, I co-authored comments explaining why this second condition raised troubling free speech concerns.

Martin has come under increasing pressure from all sides. The ACLU criticized the "family friendly" aspects of the plan, in chorus with comments from public interest groups. Then, the Bush Administration sent a letter to the FCC last Wednesday, stating that "the draft AWS-3 order would constrain a provider's usage of this spectrum, favoring a particular business model and potentially precluding the spectrum from allocation to the most valuable use" (coverage here). Nevertheless, Martin appeared determined to see the plan through, and issued the formal agenda the next day.

But on Friday, Congressmen Rockefeller and Waxman weighed in with a letter. These are the two guys who will head up the committees that oversee the FCC, in the Senate and House respectively. Apparently this pushed Martin over the edge, and he canceled the meeting altogether. FCC Spokesman Robert Kenny said:

"We received the letter from Senator Rockefeller and Congressman Waxman today and spoke with other offices. In light of the letter, it does not appear that there is consensus to move forward and the agenda meeting has been canceled."

Wow. This means that the question of what to do with the AWS-3 spectrum will almost certainly fall to the next FCC. They could start the process over from scratch, with new proposals for what to do with the spectrum and another series of notice-and-comment periods. Hopefully that Commission will take an approach that does not present such significant First Amendment problems. The failure of this ill-designed proposal is a bittersweet victory -- at least we didn't get bad rules out of the process. However, we have also potentially delayed the point at which this spectrum can be used to overcome our national broadband woes.

More coverage:

• Tech Liberation
  
• Ars Technica
• Giga Om
• Wall Street Journal
• Associated Press
  
• Reuters
  
• CNet
• Fierce Wireless
• Washington Post
  
• IDG News
  

E-Government Reauthorization Might Not Pass

I had thought that the E-Government Reauthorization Act was at a standstill and likely to die, but apparently it was still moving... until recently. Sunlight cites Congress Daily, explaining that it is being held up for reasons unrelated to the substance of the bill.

OMB officials and Senate Homeland Security and Governmental Affairs Chairman Joseph Lieberman and ranking member Susan Collins have battled behind the scenes in recent months to reauthorize the E-Government Act of 2002 before President Bush leaves office, but a standoff in the Judiciary Committee has probably killed the bill, sources said Wednesday.

I agree with the Sunlight blog post by Wonderlich. This is a real bummer. Although the E-Government Act doesn't solve some of the fundamental problems of public access to government information (which I discussed in my recent Berkman lecture) it would do a few things to improve the situation.

The AWS-3 Plot Thickens

Martin is trying to sweeten the deal for his AWS-3 spectrum auction proposal by adding a "use it or lose it" provision. If the winner of the auction does not build out their no-fee wireless internet network to all areas within 5 years, it will lose its license in the non-covered areas. Those areas will then apparently revert to an unlicensed regime. The WSJ article and Reuters articles don't give much detail, but it's clear that the Chairman is doing some strategic leaking.

WASHINGTON -- Federal Communications Commission Chairman Kevin Martin is proposing giving innovators free unlicensed access to valuable airwaves if the company that buys a license to the channels doesn't meet tough requirements to build a nationwide Internet network.

The proposal has been added to a pending auction of the airwaves. The FCC is scheduled to vote on rules for the sale on Dec. 18. Mr. Martin wants the company that buys the airwaves to devote at least 25% of the spectrum to free Internet access for 95% of the country. The no-cost Internet service also would be smut-free for users under 18. Adult users could opt out of the filter blocking pornographic content.

Mr. Martin said Wednesday that he has circulated two versions of the auction item -- one with the unlicensed provision and one without -- for the other commissioners on the five-member body to review before the meeting. The FCC will vote on only one version, depending on which version the other commissioners prefer, Mr. Martin said.

Mr. Martin wants to sell a nationwide license to the airwaves rather than give the channels to entrepreneurs because he wants to promote free Internet access. By adding a clause that would give away airwaves where there isn't an Internet network after five years, Mr. Martin hopes that the owner of the channels would have an added incentive to build a network.

Mr. Martin said Wednesday that both versions of the auction item include a "use it or lose it" provision in which the owner of the channels would lose spectrum where there is no Internet access. The owner of the channels would "continue to serve whatever area they've built out," he said.

Martin also recently leaked the fact that he is proposing that adults can verify their identity to avoid the porn filter initially mandated for all users of of the no-fee service. I helped author some comments to the FCC explaining why this filter was a bad idea, so an opt-out mechanism could theoretically be a good development... if age verification were viable, and if you thought that adults were eager to identify themselves as possible porn-lovers, and if we assumed that all adults had credit cards. In short, filtering is not a great option even with those caveats.

It all gets decided on the 18th. You can read the latest comments.