August 2010

Canada's established telecom carriers must allow smaller Internet providers access to their high-speed fiber networks at the same speed they offer to their own customers, Canadian Radio-television and Telecommunications Commission (CRTC) -- Canada's telecom and broadcast regulator -- ruled on August 30, but it said they can charge a 10 percent mark-up for doing so. CRTC said cable companies, which have provided "speed-matching" for third-party providers since 2006, must make it easier for secondary Internet service providers to access their networks.

Nova Spivack thinks that 21st century will be about the Now.

Spivack argues that prior to the 20th century, society generally was preoccupied with the past, studying history and reflecting on the past. In the 20th century we became obsessed with the future, a fact reflected in furious pace of inventions and social obsession with science fiction through the decades. However, the 21st century so far, is about the present. The emergence of the real time web is about the present, and the present impacts how we invent, Spivack argues. Over the next ten years, we are going to be looking for ways to deal with the near ubiquitous Internet connectivity and data around us, almost in real-time.

"With the real time web, the amount of information we have to handle is changing the Now," he said. "Now is becoming a lot denser. There is a lot more information in per unit of Now. The Now is getting shorter. The horizon is getting narrower. Now has gone from days to hours to seconds."

The big challenge: attention.

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On August 27, the Federal Communications Commission released its first International Broadband Data Report as required by the Broadband Data Improvement Act (BDIA). The report presents data and information on international broadband service capability.

The BDIA requires the FCC to, among other things, include in its annual broadband deployment report "information comparing the extent of broadband service capability (including data transmission speeds and price for broadband service capability) in a total of 75 communities in at least 25 countries abroad for each of the data rate benchmarks for broadband service utilized by the FCC to reflect different speed tiers." For this comparison, the BDIA directs the FCC to choose international communities comparable to U.S. communities with respect to population size, population density, topography, and demographic profile. The FCC is also directed to include "a geographically diverse selection of countries" and "communities including the capital cities of such countries." The FCC must also identify a number of specific similarities and differences in each community, including "their market structures, the number of competitors, the number of facilities-based providers, the types of technologies deployed by such providers, the applications and services those technologies enable, the regulatory model under which broadband service capability is provided, the types of applications and services used, business and residential use of such services, and other media available to consumers."

In July, the US Court of Appeals for the Second Circuit overturned the Federal Communications Commission's indecency enforcement regime as unconstitutional. After considering its options, the FCC has chosen to go back to the three judges who rejected the policy, trying to convince them that they got it wrong and ask the entire en banc Second Circuit to reverse the three-judge panel's decision.

According to the FCC's petition for rehearing, the Second Circuit panel's Fox decision went too far in overturning the entire indecency enforcement regime. The Commission asserts that the panel's conclusion - that the FCC's overall indecency policy is unconstitutionally vague - is inconsistent with earlier decisions by the Supreme Court, the D.C. Circuit, and even the Second Circuit itself. The Commission argues that the Fox decision rejects the "contextual approach" to indecency analysis the FCC has used in the past - and that, by so doing, leaves the Commission with no way to enforce the federal laws prohibiting indecent broadcasts.

The Second Circuit now must decide whether or not to grant rehearing, either by the original panel or en banc. While that may sound simple, it's not. In particular, the en banc rehearing process in the federal courts ranks up there with papal elections when it comes to procedural quirks. The FCC's petition will first be circulated to all ten active judges on the Circuit as well as Senior Judge Pierre Leval, who sat on the original panel. Any of those 11 can ask that his/her colleagues be polled as to whether or not to consider the petition. If nobody asks for such a polling, the petition is denied. If polling is requested, then the ten active judges - but no senior judges (i.e., Judge Leval doesn't participate) - are polled. Unless a majority of those polled vote for rehearing, the petition is denied. If a majority of the poll votes to grant rehearing, then the case is re-briefed and re-argued in front of all ten active judges and Senior Judge Leval. There is no guarantee that, even if the case gets that far, the FCC would prevail. A majority of the en banc court could just as easily affirm the panel's decision.

In other words, the FCC has a long row to hoe. Meanwhile, a couple of other indecency cases also continue to wend their way through the Courts.