Freedom to Connect — remarks today.
Many thanks to David Isenberg for inviting me to speak today. Here is a copy of my notes for today’s talk.
Life is short, so I have put on the screen an image of a clock whose hands are close to midnight.
It’s always good to have a sense of urgency, both in movies and in talks like this one. And to face the big questions.
Here’s one: What makes a life significant? There’s an essay by William James with this title that I look back to. James says that some inner ideal is necessary - and that the ideal should be a product of the intellect somehow, and be the subject of conscious reflection, and be novel rather than everyday.
An ideal by itself doesn’t make a life significant. It has to be joined with active will - courage - endurance.
These kinds of ideals, and that kind of will, are present in each of us, and in the people we deal with (no matter what company they work for). And so it is never a good idea to have disdain for the person you meet based on his/her affiliation; that person probably has ideals of his/her own, and a significant life.
Here’s another image of that clock whose hands are close to midnight. My father’s life is slowly drawing to a close, not this month, not next month, but someday. When I visit we listen to music together - Mahler’s 10th symphony, or Beethoven piano sonatas, or Bach organ pieces. He is a composer, and for him the ideal is music - pure human expression.
So I’d like to try to draw together (1) music as an ideal and (2) the great subjects of this conference, while making my short talk as human as possible. There is nothing more human than music; every culture has it.
The key questions on which people here often focus are prompted by the fact that access to the logical architecture that is the internet is now provided in this country by very large companies that we broadly call “network operators.”
It’s well known that there is inadequate competition for network access, but it’s also pretty clear that there is no single provider of these services in the U.S.
Instead, we have a condition of oligopoly. This means that there are few sellers of this access, and all of them act while considering the profits of their industry as a whole. Any one firm may cut its prices slightly, and all the other firms will likely follow, but we will never see real price competition, or price wars, because that would destroy this industry.
There are two unspoken conventions that exist: never use price as a weapon, and ensure that there are significant barriers to entry for new competitors. So the prices they charge don’t reflect the ebb and flow of user demand. Also, the access products of these oligopolists are not completely substitutable - their bundles are not exactly alike. Nonetheless, even oligopolists want to extend their market share, and so we see a great deal of emphasis on persuasion and advertising to make users choose their product.
These actors have enormous market power, different in degree only from that of a true monopolist. It is the same kind of power.
What do we do about this? Well, an antitrust remedy probably would not work; we would be indicting the entire fabric of the U.S. economy, which relies on many sets of oligopolistic players. And these particular network operators are not colluding in classic antitrust fashion; instead, they are merely acting with the interests of the entire industry in mind. Their prices are different enough to withstand antitrust scrutiny; they adhere to the letter of the law.
So what other actions could we take? Perhaps we have been too stuck on the competitive model. We have been too convinced that other companies will constrain these network operators to act in socially appropriate ways.
We need to think differently, and this is where both music and John Kenneth Galbraith come in.
He pointed out that although in the competitive world we think that other lateral competitors will ensure that action of market-dominant actors will ensure that behavior is socially desirable, instead in this oligopolist world restraint on private power comes from the opposite side of the market. From retailers of the “product” (here, internet access is the “product,” so retailers are ISPs) or consumers or users of that product. His name for this constraining power was “countervailing power.”
So let’s explore countervailing power. Could it come from retailers?
No, not really. In the network operator’s world, they are sufficiently vertically integrated, and have been sufficiently assisted by regulation in this vertical integration, that the retail level of ISP no longer exists.
So where should such countervailing power come from to protect all of us from oligopolist providers?
Whatever direction we end up going, be it structural separation or a nondiscrimination rule enshrined in a statute, we will need the countervailing power of users/consumers.
User power needs to be organized in response to the network operators’ power. It needs to be aggregated and made visible. Without it, we’ll have no votes, no policy changes, and the oligopolists will be able to continue to act with unfettered discretion.
We can be as smart as we want to be, but without user power we will have nothing.
How do we gather together this user power? We need to have users tell their own stories — not about technology, not about gadgets, but about how their own ideals have been joined to action (facilitated, made possible) by access to the internet. Each of us has these ideals. Our challenge is to show the world how access to the internet has made significant lives even more significant.
And here is the music tie-in - Galbraith, our friend with the countervailing power, always led the singing on New Year’s Eve.
Again, life is short. And because it is, if I get hit by a bus tomorrow I want to have asked you to do some local act on OneWebDay. OWD came out of a meeting much like this one. It came from Isenberg, Weinberger, and Searls as well as me. We’re now in the third year of OWD. It’s out of character for me to be working on this. It’s a simple idea, a soft idea, an idea that takes a lot of sales - and I am terrible at sales. I’m not naturally suited to leading a movement, and I am unsure of everything except the idea that people are basically good. Which is why I need your help.
The idea behind OneWebDay is that it is an Earth Day for the internet. We are trying to create a global constituency that cares about the future of the internet. We’re emphasizing the positive impact of the internet on human lives, and reflecting on the threats to the internet around the world (censorship, controllers of different kinds) and what we can do about them. It is a day for local concerns to be paramount, but there are events around the world and online.
Each talk can have only one idea in it, and here is the point of this talk. We need to create countervailing power, and that power will come through users. OneWebDay gives us a chance to build the countervailing force that is needed. We are lucky to have our work and our lives so intertwined; and in our short lives, there is a great debate about the future of the internet going on. The key source of countervailing power that has not yet been called on yet - called to itself - is a kind of human music. I am asking you to assist in drawing out those stories.
Needed: Votes
I’m at the Tech Policy Summit. There was a particularly good panel yesterday that included Tod Cohen and Ken Kay talking about what it takes to do effective policy work. Tod’s quite blunt: “Do you vote?” That’s the question he asks people who want to do policy work with Ebay. You have to love politics, he says, to be in this business. It’s all about incremental advances and relationship-building.
Without votes, nothing happens. Just being smart or persistent won’t make any difference.
It’s sobering. Who has votes for an open internet?
I certainly believe in my side of the argument, and I even think that we’ll have all kinds of economic data that shows that having private gatekeepers with power over a general-purpose network won’t be good for the rest of us. But sometimes I feel like I’m part of the Folk Song Army. Do you remember that Tom Lehrer song?
We are the Folk Song Army
Everyone of us … *cares*
We all hate poverty, war and injustice
Unlike the rest of you squares/ D - G - / A7 - D - / B7 - Em - / D A7 D A7 /
. . .
If you feel dissatisfaction
Strum your frustrations away
Some people may prefer action
But give me a folk song any old day/ F#m - C#m - / / G - D - / Em - F#7 - /
….
Remember the war against Franco
That’s the kind where each of us belongs
Though he may have won all the battles
We had all the good *songs*/ C# - D - / - - C# - / :
So join in the Folk Song Army
Guitars are the weapons we bring
To the fight against poverty, war, and injustice
Ready, aim, sing!
To avoid being a kind of Folk Song Army, we need leadership, votes, and constituents telling stories. FreePress, PublicKnowledge, and SaveTheInternet work at this very hard.
Rhythm and memory in policy
I just started reading Technological Revolutions and Financial Capital by Carlota Perez (hat tip: Gordon Cook and his excellent listserv). It’s one of those magisterial treatments of a big subject - here, patterns of social and political transformations triggered by technological change.
Just as we read novels to see ourselves (or some secret aspect of ourselves) in the characters described, it’s worthwhile to try to figure out just where in Ms. Perez’s long sweeping waves of change we currently are swimming. She says the cycle is made up of overlapping periods of transformation in different parts of society - and that institutional/political change happens with a different rhythm than technological change, which gives rise to (metaphorical) social earthquakes of various kinds. Roughly, the idea is that a cluster of new dynamic technologies is developed, which generates explosive growth and structural change. (Eg, the information/computer age begins with the manufacture of the first chip.) This growth leads to great divides and bubbles of various kinds, and a paradigm shift in how institutions are structured to incorporate the new form of “common sense” that the technological change has engendered. So - technologic change leading to organizational change. This all takes a couple of decades, and she suggests that we’ve been through waves of this kind every half-century or so for a while.
A key point of Perez’s, I take it, is that there’s a period of mismatch between techno change and institutional change, and that it often takes a bubble-leading-to-recession phase to force the slower pace of institutional change forward. Once things are better aligned, a “golden age”of prosperity is possible.
So I’m going to guess that we’re in the “recession” phase, a crisis phase, of the information age. Even though there’s money sloshing around ($19 billion from VZ and AT&T to make sure they control newly-available spectrum!), we’re in a big downturn right now.
Perez suggests that recession may make old-industry giants willing to accept new rules - so, in the highspeed internet access market, the giants may become comfortable with the cushy margins involved in being a commodity provider, in a trade-off for an expanding user base. And it’s pretty clear that the old organizational models aren’t working particularly well for ensuring that all Americans, not just these incumbents, share in the information age advances. Because antitrust authorities will defer to the FCC, and the FCC will differ (generally) to these companies, no one is ensuring that information continues to flow freely. What’s missing, using Perez’s terms now, is “a systematic articulation of a new regulatory framework and of the appropriate institutions that can steer and facilitate the new economy.”
We don’t have a wise Judge Greene, and we don’t have a competition case that can be put in front of him (at the moment), but we can start articulating.
Perez’s work is also helpful in its focus on patterns over time. There have been a host of these tech changes, and she sees commonality in their overall social impact: the industrial revolution, the age of steam and railways, the age of steel, electricity, and heavy engineering, the age of oil, the car, and mass production, and now our own age: the age of information and telecommunications. It’s important to remember where we’ve been over time; our age is arguably not unique.
Google and the white spaces
The white spaces proceeding is the next big opportunity for experiments in alternative ways of providing wireless highspeed internet access. I’ve written about this here, here, here, and here.
When the DTV transition happens in Feb. 2009, channels 2 through 51 will remain allocated for television transmission. Few of the nation’s television markets actually use 49 channels. Indeed, most use less than half of that number. The “white spaces” are these unused television channels, which amount to approximately 300 MHz of frequencies. According to Blair Levin, “[e]stimates vary, but most of the population (between 73% and 97%) lives in areas with access to 24 MHz or more of white space. Rural areas in particular, have a great deal of white space as they generally have fewer television broadcasters.” Rules for the “white spaces” are now on the Commission’s agenda.
Rather than being sold at auction to the highest bidder, unlicensed spectrum is useable by anyone with wireless equipment that has been certified by the FCC for unlicensed frequencies. A key advantage of unlicensed spectrum is that experiments in new technology can be carried out without asking the permission of spectrum licensees. To date, we have made very little spectrum available for unlicensed use and experimentation.
The FCC has the discretion to decide whether the digital television “white spaces” may be used on an unlicensed basis. Its own Spectrum Policy Task Force recommended in 2002 that such a step be taken. Indeed, in trying to stave off an auction rule in the 700 MHz proceeding that would have dedicated non-built-out spectrum to unlicensed uses, Verizon affirmatively argued that the Commission would be opening up the white spaces on an unlicensed basis – thus making such a rule for the 700 MHz auction unnecessary.
Beginning in 2004, the FCC asked for comments on uses of the white spaces, itself suggesting that unlicensed uses of these white spaces would be appropriate. The Commission recognized that the “significant growth of and consumer demand for unlicensed wireless broadband applications” supported opening up the white spaces for broad ranges of unlicensed use. Two years later, the FCC backtracked somewhat from its earlier wholehearted endorsements of unlicensed uses of the white spaces, saying (1) that, at the most, only “fixed” (non-portable) unlicensed uses should be allowed, and, even more disconcertingly, (2) that it is not confident any unlicensed uses are appropriate in the white spaces. The FCC is concerned about the possibility of interference among the transmissions of various users of the white spaces.
So this is a proceeding about almost 300 MHz of spectrum (and all the fighting over the C Block concerned just 22 MHz). It will be in “swiss cheese” (non-contiguous) form, but there will be a great deal of it. Using white space spectrum as a way to provide last-mile connectivity to wired Internet access nodes would be especially valuable in rural areas where those wired nodes are scarce and there is a great deal of vacant TV spectrum.
Today’s update is that Google is making concrete statements about its plans should the FCC allow for unlicensed use of some portion of the white spaces. (Here’s the company’s filing with the FCC.) Google suggests that there should be allocations for both portable and fixed unlicensed uses. (We need portable devices - they’ll be cheap and there’s a huge market for them. Without portable devices, this market just won’t take off.)
Google suggests that *all* devices for unlicensed use of the white spaces should be required to receive an “all clear” signal for the particular channel where they wish to operate, by using geolocation, checking a database of licensees in that location, and getting permission in advance. Wireless mics could send a signal (called a “beacon”) saying “don’t transmit here” that would be adhered to by these unlicensed devices. Google further suggests that no unlicensed device would be permitted to transmit at all in channels 36-38. The company makes the rural argument, pointing out that Android-powered handsets would be a good way of providing low-cost mobile broadband coverage for everyone. And it’s promising to provide technical assistance to people and manufacturers who want to exploit unlicensed white spaces.
Interestingly, the company is suggesting that this combination of geolocation, beacons, and databases will allow the FCC (eventually) to be comfortable with unlicensed devices that just use spectrum sensing. They’ll have so much data about interference successes etc. that they’ll see that interference can be dealt with just by spectrum sensing.
Once we’ve done all this experimentation with the white spaces, we may be in a better position to use *licensed* spectrum more wisely without causing interference. Google points out that they could use dynamic auctions to allocate spectrum on a real-time basis - the idea is that the licensee could grant the right to transmit an amount of power for a specified unit of time, subject to a cap.
Bottom line: This is a compromise proposal designed to assuage objectors and nudge the country down a path towards more efficient use of spectrum, both licensed and unlicensed. It will be interesting to see how the Commission responds. I’ve heard that there’s a welcoming mood over there for unlicensed uses.
Zittrain time
I’m reading The Future of the Internet in preparation for saying something about it on Apr. 11, and you should read it too. (I’ll post here whatever I decide eventually to say - right now I can say I’m enjoying it and it’s flying by.)
And here’s another plug for Zittrain-mania: Boston Review’s New Democracy Forum: Protecting the Internet Without Wrecking It, Volume 33, Issue 2, March / April 2008, is a Zittrain essay with responses from Bruce Owen, David Clark, Richard Stallman, Richard Grimes, and me. (My entry is in honor of Tom Hazlett, who wrote a great article saying that interference was more of an opportunity than a problem.)
The Zittrain Train. The Zittrain Zip. Go, JZ.
Why Block C matters
Today the FCC announced the winners of the 700 MHz auction - and you can see from pp. 62-63 of this document that Verizon won Block C. (Block C was set up in two nationwide paired blocks of 11 MHz each, which were auctioned off in very large geographic areas—12 licenses, each covering a “Regional Economic Area Grouping”. Verizon won seven of the twelve licenses, covering all of the US except Alaska, Puerto Rico, American Samoa, Guam, and the Northern Mariana Islands.)
Why does this matter?
Context. The 700 MHz auction happened at a particularly interesting time in communications history. Traditional telephone use is shrinking and the cultural sway of broadcasters is diminishing, while Internet use and cellphone use are growing quickly. Although the telecommunications industry has long been divided up into different silos (cable, broadcast, telephony, data), all of these segments are arguably converging into one packet-switched communications realm. Highspeed packetized communications are becoming the key communications medium.
The central question is which model of packetized communications will prevail: Will we converge on a set of proprietary, walled-garden networks, in which the network provider acts as a gatekeeper by deciding which communications (in terms of content, application used, protocol used, how expensive they are) move easily across its network and onto the (authorized) handsets of users (the cellphone model), or will we converge on the Internet model, in which the network provider makes available an interconnected, commodity, nondiscriminatory transport service (essentially, a utility connectivity product) on which competitive communications travel that can be introduced without the knowledge or permission of the network provider and can be accessed via any handset?
The answer. Verizon’s victory in obtaining the C block in this auction means that, for a while at least, the “cellphone” model of Internet access will hold sway - particularly as we move in greater numbers to experiencing Internet communications via mobile handsets.
More background - Verizon was already an almost unbeatable oligopolist. Verizon already had national spectrum licenses before this auction began. The commercial wireless industry in this country began in 1981 when the FCC issued two free cellular licenses in the 800 MHz range for each “cellular marketing area” (or “CMA”) in the country. There are 734 CMAs in the U.S., and this regulatory limitation to relatively-small geographic areas for the licenses (and to only two competitors for each geographic area) meant that cellular technology remained expensive and not widely used. But the operators that were handed these early free “beachfront” 800 MHz licenses retained them, and now (through mergers and sheer staying power) Verizon Wireless and AT&T have most of them.
The most important service attribute for experienced cellphone users is coverage – the availability of reliable signals. Verizon Wireless and AT&T offer the best nationwide coverage, because they held onto those “beachfront” 800 MHz licenses and snapped up smaller carriers. As a result, Verizon Wireless and AT&T experience both much lower “churn” (dropped subscriptions) and much higher rates of “net adds” (new subscriptions) than the third largest carrier, Sprint. Indeed, Sprint is rapidly losing customers. The enormous barriers to entry involved in providing nationwide service, their vast spectrum holdings, and the substantial economies of scale of wireless service generally, make Verizon Wireless and AT&T almost unbeatable oligopolists.
The myth of the “third pipe.” When it comes to highspeed Internet access, current wireless offerings from Verizon Wireless and AT&T do not compete directly in terms of speed or cost with the dominant wireline (DSL, fiber, and cable) transport offerings – which explains why 96% of all residential highspeed Internet access connections are sold by regionally dominant DSL or cable companies. Existing (pre-auction) wireless highspeed Internet access connections cost at least twice as much as a DSL or cable connection, and operate at only a fraction of the speed. Residential highspeed Internet access subscribers simply do not cancel their subscriptions in order to sign up for wireless highspeed access via handsets, because these services are not (currently) substitutable.
At the same time, the dominant existing national wireless carriers, AT&T and Verizon, (1) are controlled by the same incumbent actors that control DSL access through regional monopolies across the country and (2) offer wireless services as part of packages that tie together traditional phone services, Internet Protocol Television (IPTV) access, and internet access. In a nutshell, the leaders in mobile wireless are owned by the same companies who control the DSL marketplace and are, like their corporate parents, choosing to avoid direct competition for highspeed Internet access by bundling three or four services together (voice, video, data) and differentiating their offerings based on their voice or video elements.
Given this situation, in which 96% of residential wireline highspeed internet access is provided by regionally dominant DSL or cable companies, and wireless communications are largely provided by two oligopolist players who are in turn owned by wireline companies, the dominant providers of internet access services in this country, both wireline and wireless, have ample market power to nudge users towards the proprietary, cellphone, managed model of packetized highspeed communications. These carriers, just like all makers of potentially-commodified information goods, have substantial incentives to both lock their customers in with high switching costs and to differentiate their informational offerings from those of other companies running across their network. They obviously also have great incentives to avoid cannibalizing their own wireline highspeed internet access market dominance.
It wouldn’t have been possible to create a “third pipe” competitor through the 22 MHz available in the national C block. That much spectrum just can’t carry enough data to compete with DSL or cable. But this 700 MHz spectrum might have been able to support long-range provision of wireless highspeed Internet access in (1) areas where faster “wired” DSL or cable Internet access is not available, or (2) for personal, portable wireless uses. And it might have been able to do this while requiring far less capital expenditure for the building of transmission towers than for higher frequency bands.
Most importantly, if someone other than Verizon or AT&T had won this auction, we would have seen a test case for non-cellphone model Internet access.
But we won’t. During the wrangle over the auction rules, Google and others proposed that this spectrum be made available on a wholesale basis - so that the licensee would be obliged to sell access to its network on a wholesale basis at commercial rates. This would mean that any ISP could come and buy bandwidth and build its own business. Everyone would share the same transmitter and neutral connection, but ISPs would compete on price and the services they offered to their customers.
This kind of approach has led to dramatic competition for the provision of highspeed Internet access in Europe.
But even though the incumbents (Verizon and AT&T) could have accepted this limitation, won the auction, and then priced wholesale access at a high level (thus discouraging anyone from using it), avoiding the precedent of wholesale access – and retaining the cellphone model of access – was their central goal. And they achieved that.
Now, the FCC did mandate that any winning licensee have in place “no locking” and “no blocking” provisions conditioning its use of this spectrum:
Licensees offering service on spectrum subject to this section shall not deny, limit, or restrict the ability of their customers to use the devices and applications of their choice on the licensee’s C Block network, except:
(1) Insofar as such use would not be compliant with published technical standards reasonably necessary for the management or protection of the licensee’s network, or
(2) As required to comply with statute or applicable government regulation.
As I’ve said here before, these no-locking, no-blocking requirements are hedged in by substantial limitations: Verizon will be able to lock and block devices and applications as long as they can show that their actions are related to “reasonable network management and protection,” or “compliance with applicable regulatory requirements.” We’ve already seen how loosely “reasonable network management” has been interpreted in the Comcast fracas.
Verizon has said that all of its wireless operations will be “open” and that it will allow any device to attach to its network. But. Verizon has also insisted on retaining the ability (1) to privately “certify” applications and devices for use on its network (a process during which a great deal of mischief is possible, as we know from the pre-Carterfone days), (2) to sell heavily-subsidized handsets of its partners in its retail stores (which will make it unlikely for competing, full-price handsets to be popular), and (3) to prioritize its proprietary or charged-for content over “ordinary” Internet traffic.
The bottom line. Verizon has won spectrum it arguably didn’t even need, given its existing spectrum holdings. It retains the discretion to act as a traditional cellphone-model company - picking and choosing among applications and devices, underselling “open” devices, and discriminating against traffic that undermines its business model. This isn’t great news for the Internet model of access.
On the other hand, openness is more popular and more talked-about than it used to be. It may be that the pressure of consumer preferences makes Verizon provide a truly open Internet and truly open devices to the rest of us. (The pressure of competition won’t be doing that - AT&T and Verizon have divided the U.S. between them, and the other players in the wireless space are far behind.) The Android project, Verizon’s own words about openness, and concerns about the place of the U.S. in the international race for innovation may all push towards a more open future.
We’ll see. The results of this auction don’t suggest that we’ll be seeing such a move any time soon.
Late styles
On display at the Museum of Modern Art right now is a device called the Isophone. It’s part of an exhibit called “Design and the Elastic Mind.” You should visit - never mind the lines.
The Isophone is a telecommunications device that creates “a telephonic space of heightened purity and focus,” in opposition to the current ubiquity of mobile phones and conversations, the designers say. Immersed in a flotation tank, the user wears a helmet that “blocks out all unnecessary sensory input whilst maintaining the head above the surface of the water,” which is heated to body temperature, blurring the physical boundaries between the user’s body and its surroundings. This floating state frees up to ninety percent of the brain workload normally engaged with calculating the law of gravity. The resulting space is an ideal, distraction-free environment for a telephone call. “The only sensory stimulus is the voice connection to the person using the same apparatus in another location,” the designers say.
Isophone. Prototype. 2003; James Auger (British, b. 1970) ; Jimmy Loizeau (British, b. 1968) ; Media Lab Europe (Ireland, 2000–05).
I find myself thinking about the Isophone. It’s not necessarily real; who wants to clamber into a flotation tank every time there’s a phone call to be made? Changing communication patterns isn’t the point of the Isophone. It’s designed instead to make us think about our minds and our focus, both positively (”wouldn’t it be nice to pay attention?”) and negatively (”ugh, I don’t want to live as a disembodied mind”). (Some people I talked to about the Isophone today said they’d be too worried about electrocution to try it.)
I thought particularly of the Isophone tonight when I had a chance to hear one of my all-time-favorite pieces, the Brahms clarinet quintet. I dearly love this piece. I remember the first time I heard it, when I was a college freshman. It is so familiar to me now that I can’t imagine not knowing it. Brahms wrote it after he had announced that he had stopped composing; he planned to relax. But he heard a wonderful clarinetist play, and was inspired to take up his pen again. So it’s a late work, a beyond-retirement work, and it’s both profoundly melancholy and energetic.
I so wanted to pay complete attention to this piece tonight. I was partially successful, but my mind wandered a bit; back to the first time I tried to perform this piece, back to the people I have played it with over the years, over to the contortions of the man sitting four rows in front of me, back to the explosion of inappropriate individual applause after the end of the prior piece on the program (I think the applauder was just trying to show that he knew when the earlier piece was over), over to the daily things on my mind. I tried to mimic the notion of an Isophone, staying still and not working on my placement in the gravitational plane. It worked, but not throughout the piece.
The “late style” pieces on tonight’s program were accompanied by brief essays that the group had commissioned. There was a particularly lovely one by novelist Richard Powers. Here’s an excerpt:
We age, yes. Grow, certainly. We stumble forward toward some obscure destination. We rewrite always, given more time. But maybe it’s just that provisional, interrupted, etermal revision that we’re left with. Perhaps when we listen to an artist’s last word, we might give it space to mean something even more than consummation. Maybe we should hear in arrival just the draft of a draft of something else that might have come along, given more time.
The Brahms quintet’s last movement comes full circle, with a haunting reprise of the first movement. I managed to pay attention to that, at least, even without an Isophone involved. I wish you could hear it, right now. Imagine if it was a draft of a draft.
Tuesday links
It’s spring break, and I seem to be checking in with every part of my life as law professor, OneWebDay whatever, ICANN director, and violist - lots of meetings and phone calls and meals. Whatever happened to the quiet contemplative vacation?
Anyway:
1. the 700 MHz auction has ended. Almost $20 billion for the Treasury. Most people think that Verizon and AT&T were the big winners, and that the Commission will find a way to separate out the D Block auction (which didn’t reach the reserve price) from the other blocks - so we’ll know soon who won the famous 22 MHz C block.
2. The FCC is rumored to be a very political place.
3. China is blocking YouTube to avoid making video of the crackdown on Tibet visible. Cellphone video still manages to circulate.
4. NYC announces InternetWeek in June. A good chance for everyone to get ready for OneWebDay on Sept. 22.
Supreme Court agrees to hear Fox v. FCC
Let the pundits begin! This is big news. By taking the case, the Court must be indicating that it is willing to examine the substance of the FCC’s indecency rulings. The networks did their best to persuade the Court that there was nothing to review - that all the Second Circuit had done was say that the FCC hadn’t built a substantial enough record to justify reversing its course as to fleeting expletives.
Judge Leval’s dissent took strong issue with his colleagues’ approach - his point was that the FCC had made its determination based on the broad language of 18 USC 1464 and Pacifica, and that the court should have deferred to these determinations.
So either this is not a run-of-the-mill administrative law case, and the Second Circuit used the wrong standard (so the Supreme Court wants to emphasize the appropriateness of deference to the expert agency), or the Supreme Court really wants to shore up the FCC’s view of its powers and has a yearning to give them more support than Pacifica arguably provides (so the Supreme Court wants to opine about the role of indecency regulation in the age of the Internet). There was no circuit split, as far as anyone could tell. In either case, this will be fascinating.
Thursday links
The House Commerce committee investigation of the FCC continues. According to the Washington Post, a detailed letter signed by Rep. Dingell has gone out to the FCC asking for a host of documents that (among other things) relate to “management practices that may adversely affect the Commission’s ability both to discharge effectively its statutory duties and to guard against waste, fraud, and abuse.” This is serious - business as usual at the Commission must be under severe pressure, and the idea of real structural reform of the Commission (and perhaps a new telecommunications act) can now be talked about with some confidence. This won’t happen now, but it could be happening a year from now.
According to CDT, the House should approve H.R. 3773, the FISA Amendments Act. It requires prior FISA court approval of surveillance procedures (if not of actual surveillance), ongoing judicial oversight of compliance with those procedures, does not grant retroactive immunity to the carriers, and has a Dec. 31, 2009 sunset.
I’m feeling prescient (or maybe just trend-aware) about yesterday’s post - today, WIRED has a substantial article covering a music industry notion of charging highspeed internet access subscribers a levy for access to music. Never mind that it’s impossible to figure out who’s doing what - particularly if everyone starts encrypting their communications. Never mind that the network access provider may not be shielded from liability if it starts looking at every transmission. As the article concludes, the music industry’s feeling is:
Pay up. . or we’ll sic Washington on you — and London and Paris and anybody else we can find.