November 2009

Biggest Network Neutrality boosters question FCC proposal

The strength or weakness of a proposed open Internet rule, known as network neutrality, could rest in the interpretation of just one word: "reasonable." The way that word is defined can tilt fortunes in the Web economy and set the course for how consumers use the Web today and in the future, proponents of the policy say. Now, a group of law professors and public interest groups are telling the Federal Communications Commission that its proposed rules don't sufficiently define what that word means for Internet service providers like AT&T, Comcast and Verizon as they management traffic on their networks. In a letter to FCC Chairman Julius Genachowski sent this morning, the legal scholars -- all long-time proponents of net neutrality -- are asking the agency to clear up ambiguity on "reasonable network management" practices in a draft of rules. "We submit this extraordinary early letter only to flag what we believe are two ambiguities in the Notice that we hope can be addressed early to provide a clearer foundation for comments," wrote Tim Wu, a law professor at Columbia University and chairman of public interest group Free Press, Stanford University Law professors Larry Lessig and Barbara van Shewick; Yale Law School's Jack Balkin; South Texas College of Law Professor John Blevins; and University of Louisville School of Law's Jim Chen. "We trust Genachowski," said Wu. "But this is a historic rule and this letter was in the spirit of looking at other FCCs and creating a stronger rule that sets a policy that lasts longer as opposed to something that is highly dependent on the whims of a commission in power."

Did Congress really give the FCC power to protect the Net?

With the release of the Federal Communications Commission's new Internet nondiscrimination proposals (that is, network neutrality), one vexing question continues to vex. Does the FCC have the legal authority to regulate access to the Internet? The issue came up again this week, and not just because of the net neutrality proceeding; Comcast, which is suing the FCC for its sanctions against the ISP for last year's P2P throttling, told a federal court hearing the case that the answer is no. Comcast's network management practices "were designed in good faith to manage high volumes of traffic to ensure that all customers could use and enjoy their High-Speed Internet services," the cable giant explained to the United States Court of Appeals for the District of Columbia Circuit on Monday. "Nonetheless, the agency's rhetoric regarding the merits of the practices cannot solve the lack of any pre-existing binding legal norm governing those practices or the related legal questions presented in this Court." The company is scheduled to make its oral argument in the case in early January. The conundrum comes down to this: does the FCC have any legal power to step in if it finds that an ISP is unnecessarily interfering with an application (like BitTorrent) that millions of consumers use to share files on the Internet? The Commission and its supporters say that Congress gave the agency the broad authority it needs to do the job. Opponents say those powers are nowhere to be found.

Stop The Madness: The Internet Has To Be Regulated

[Commentary] To suggest that the Internet can't and shouldn't be regulated is dangerously wrong. We have to understand that the so-called "digital economy" is simply the next generation of our traditional economy. And just like our traditional economy, there are times when we need government to step in and correct market failures, protect consumers, and generally establish what the rules are for how business should be conducted.

Crowdsourcing AT&T's Anti-Net Neutrality Campaign

[Commentary] The power of the telephone lobby lies in the power and influence the companies generate outside of Washington. Telephone company representatives are in every Congressional district. They are in or around most communities. They are the ones who buy the tables at the Chamber of Commerce dinners, and the uniforms for the Little League. They support community organizations and know everyone in the Rotary Club. And when it comes time that the friendly AT&T or Verizon managers need a little favor from a local business person or public official, say to send a letter to the Federal Communications Commission (FCC) about a proposal that could harm that favorite local company, well the people are happy to oblige. That was the basis of the unprecedented barrage that spooked the FCC in the weeks leading up to the Commission's October 22 meeting at which the Commission voted to approve proposed rules on a non-discriminatory Internet, which included letters from chambers of commerce, public officials, local businesses, retirees, among others. What other lobby could get the Graham Transfer and Storage Company of Meridian, MS, to send a letter opposing Net Neutrality as an example of a small business?

NCTA, NBCU: FCC BitTorrent Order 'Shackles' ISPs

The Federal Communications Commission's BitTorrent order "shackles" Internet service providers in their attempts to thwart online piracy, leaves network operators guessing about what reasonable network management is, undercuts the agency's own network neutrality proposal and should be vacated by the courts. Those were the messages from the National Cable & Telecommunications Association and NBC Universal in joint comments to the U.S. Federal Appeals Court for the D.C. Circuit. The court is preparing to hear oral arguments Jan. 8 on Comcast's challenge to the FCC's ruling that it violated the commission's open access guidelines in its management/blocking of BitTorrent peer-to-peer traffic.

Broadcasters Defend Their Spectrum

The battle over spectrum continues to heat up, with broadcasters wondering when the jabs being thrown from all angles might turn into haymakers. Broadcasters spoke up last week in the face of growing calls for them to give up some, if not all, of their spectrum so it can be used for wireless broadband. Some of those calls came from the government. The industry surrendered approximately one-third of its spectrum in the switch to digital, a move that now allows broadcasters to deliver high-definition TV and multiple channels. If everything goes as planned, they will add mobile DTV to that mix. But the Federal Communications Commission has made it clear that it will have to get more spectrum from somewhere to meet a "looming spectrum crisis," as FCC Chairman Julius Genachowski recently put it. The commission has been feeling out broadcasters about the possibility of scaling back their ambitious spectrum plans, including possibly paring back their over-the-air strategy to a single standard-definition channel.

Be Wary Of FCC's Cash-For-Spectrum Plan

[Commentary] The Federal Communications Commission has created a big stir by proposing that broadcast spectrum be re-purposed for mobile broadband and suggesting that broadcasters might be compensated for vacating the spectrum. Broadcasters need to come up with a framework for analyzing the situation and responding to the opportunities and threats presented. The questions broadcasters are asking are the right ones. The answers will be a long time in the making, but this primer offers some starting points. The bottom line is that transition payments, if any, will come many years from now and are unlikely to be substantial compared to the enterprise value of most leading television stations. Hane offers these questions and some answers: 1) This came out of left field. Why, and why now? 2) Is there really a shortage of spectrum for wireless broadband service? 3) Why the television spectrum? 4) How much could a TV station get for the spectrum? 5) How would a reclamation process work? How long would it take? 6) Is the broadcast spectrum really underutilized? Should it really be reallocated and auctioned for wireless broadband? 7) Is there anything good about this for broadcasters?

National Broadband Plan Policy Evaluation

The Fiber-to-the-Home Council met with staff at the Federal Communications Commission to discuss a new study which finds:

1) At current course and speed, high-performance broadband will be available to a minority of US homes by 2015 and many homes will have only one provider of such service.

2) This base case deployment scenario will be inadequate for enabling nextgeneration services such as HD/3D video, cloud computing, and very large downloads/uploads due to throughput constraints and QoS limitations.

3) Accelerating high-performance broadband deployment to 80% of the US (101.6M homes) by 2015 will facilitate widespread adoption of next-generation applications.

4) Incremental annual consumer and public good benefits over the base case stemming from services enabled by high-performance broadband acceleration could reach $5.7B (if 54% homes passed), $8.9B (if 69% HP), or $11.3B (if 80% HP).

5) The total investment required for deploying high-performance broadband at an accelerated pace would be $33.313 (if 54% HP), $62.2B (if 69% HP), or $89.2B (if 80% HP) - scales of investment that are possible given historical capital
expenditure levels of major service providers.

The Role of Broadband in Improving Public Safety Communications and Emergency Response

The Federal Communications Commission will host a broadband field hearing in conjunction with Georgetown University Medical Center on . The hearing will he held on Thursday, November 12, 2009, 9:00 a.m. - 2:00 p.m. at Georgetown University The hearing will focus on the specific broadband requirements for America's first responders and emergency medical personnel, as well as the use of particular technologies and applications to maximize use of broadband, the cost of implementing such communications technologies, and how the National Broadband Plan now being developed by the Commission can help bring attention to, and address, these critical public safety issues. Broadband may face different challenges and serve different needs in more rural and tribal areas than in other parts of the country, so the FCC is asking for public input regarding broadband deployment for public safety in rural and tribal areas. In addition, the FCC also wants to know about public safety broadband communications to and from persons with disabilities. There's a long list of targeted questions in each area. Comments are due December 1, 2009.

5 million Star Trek pirates vs. 1 FCC broadband plan

Paramount Pictures says that, in the months following the theatrical release of Star Trek, the media company tracked more than five million IP addresses that downloaded one of six camcorded copies of the movie. The first was in Russian, but it was followed by editions from the Philippines, the Ukraine, Spain, Germany, and finally the United States. Who does Paramount blame for this? Pretty much the entire Internet, it seems, including the Google.com, youtube, Bing, Yahoo, and, of course, millions of 'Net users. "Just five years ago, one had to be computer literate and exceedingly patient to pirate movies," Paramount wrote to the Federal Communications Commission on Friday. "Today, literally anyone with an Internet connection can do it. Clunky websites are being replaced by legitimate looking and legitimate feeling pirate movie websites, a perception enhanced by the presence of premium advertisers and subscription fees processed by major financial institutions." Piracy, Paramount warns, "has advanced from geek to sleek." All the more reason why content providers "must have the legal and regulatory flexibility to use technological tools in partnership with Internet service providers to stem the tide of online copyright theft." The letter does not elaborate on what kind of "technological tools" Paramount would like to use.

Benton

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