December 2010

And Away We Go.....

[Commentary] Over the next three weeks, here's how Public Knowledge will try to improve the network neutrality proposal unveiled December 1 by Federal Communications Commission Chairman Julius Genachowski.

The rules governing wireless Internet access must be strengthened. Since the order largely follows the never-introduced legislative framework developed by House Commerce Committee Chairman Henry Waxman, we know that the rules for wireline and wireless broadband Internet access are treated differently. Under that framework, wireline Internet access providers are prohibited from “unjustly or unreasonably” discriminating when transmitting traffic. Wireless Internet access providers are only prohibited from blocking “lawful Internet websites” or “lawful applications that compete with the provider’s voice or video telephony services,…” This sets up a world with two Internets, one wired and one wireless, which in turn disproportionately affects people of color and America’s poor, who tend to rely more on mobile wireless broadband. The FCC can start by prohibiting blocking of any lawful application, service, content or device and then can provide either a technological or time limited glide path to full non-discrimination.
The definition of “broadband Internet access service” must be simplified. The Waxman framework defines the term “broadband Internet access service,” in part, as “[a] consumer retail service, by wire or radio, that provides high-speed capability to transmit data to and receive data from all or substantially all Internet endpoints,….” This is not only a completely new conception of what Internet access is, it opens the door to a broadband access provider evading the open Internet rules by providing a prioritized, Internet access-like service that transmits and receives data from less than “substantially all Internet endpoints.” A better option for this definition is the far simpler one that the FCC proposed last fall. Broadband Internet access was defined then as “Internet Protocol data transmission between an end user and the Internet,” and Broadband Internet access service is defined as “[a]ny communications service by wire or radio that provides broadband Internet access directly to the public, or to such classes of users as to be effectively available directly to the public.” These are commonly recognized definitions not amenable to game playing.
Paid Prioritization should be presumptively unreasonable. The Waxman framework says nothing about whether a broadband access provider can sell “Quality of Service” (QoS) guarantees to application, content and service providers to ensure that their services load faster and/or with less jitter than competitors. By prohibiting only “unjust and unreasonable” discrimination, access providers will surely make the case that so long as they offer QoS to everyone on non-discriminatory prices, terms and conditions, such prioritization is allowed. While I believe that the order accompanying the rules has some language expressing the Commission’s concern with paid prioritization, that language should be strengthened to shift the burden on the broadband access provider to demonstrate why such prioritization is necessary and why it is in the public interest.

Why Network Neutrality Will Not Die

[Commentary] So how is it that, five years after network neutrality grudgingly came into being as the pathetic shard of oversight salvaged from the total deregulation of broadband, it now utterly dominates the telecom policy landscape and will not die? And why hasn't it actually passed? Because the Internet, once the network of networks, is now the platform of platforms.

The idea of “convergence” where everything in media and telecom policy that used to take place in separate silos — voice, video, wireless policy, you name it — came true. It all revolves around the Internet. This ensures two very important things: 1) No matter how good carriers try to behave, they will inevitably step on a lot of industry toes, and 2) without a rule, there is no good way for anyone to get on with their lives. As a result, when something like the Comcast-Level 3 fight comes up, it becomes a major donnybrook that paralyzes everyone. It’s too big and potentially important to ignore, but there is no orderly way to resolve it — or even to establish what is actually going on. So everything grinds to a halt while parties publicly posture and all the other ISPs sit on the sidelines and wait to see how customers and regulators react.

Between now and December 21, all sides will be pushing as hard as they can to shape a final rule. Carriers will do what they can to broaden loopholes and undercut the enforcement mechanisms while trying to make sure that network neutrality supporters cannot get stronger rules. Network neutrality supporters will be doing the opposite — trying to close loopholes and prevent the proposed rules from getting even weaker. Because the Republicans have locked themselves into opposition, the real question is how far the three Democrats are willing to go, which depends in large part on what the public blow-back is from both sides and how the internal knife-fighting comes out.

The Real Story Behind the Comcast-Level 3 Battle

Although the conventional wisdom amongst Internet users is that Comcast is evil and, therefore, Level 3 must be the innocent victim of Comcast’s capricious greed, this is a complex situation without clear-cut heroes or villains — in the network game, the Comcast/Level 3 conflict is business as usual.

All of this said, no one here did anything wrong; these disputes aren't uncommon. Well, no one did anything wrong until Level 3 whined to the press and regulators. When you’re on the losing side of a peering dispute, you’re always tempted to complain to regulators about how you've been treated unfairly. Then you remember a regulated peering arrangement is the only thing worse than what we have now. More regulation puts more power in the hands of the big providers, not less, as they have the experience, resources, and the legions of regulatory lawyers necessary to “play the game.”

So, how does this play with network neutrality? The short answer is that it’s completely unrelated. Netflix isn't paying a dime to Comcast. Level 3, which sells services to Comcast, is. It’s the price of doing business when you have a large amount of outbound traffic. No user will pay more to watch Netflix movies. Netflix certainly won't see this passed on to them; the low cost of Level 3’s service is what won the deal, and if that goes away, so will Netflix, to greener pastures. Instead, this is a battle where a provider that does no business with consumers (Level 3) will pay money to a company that does provide services to consumers (Comcast). There will be no prioritization of traffic as part of this deal, only delivery. This in no way absolves Comcast of its duty — as good corporate citizens, not to mention a company trying to make a merger happen — to be more transparent, to deal openly with its customers, to improve its levels of service, to provide competitive prices.

Sen Kohl Urges Careful Review Of Google-ITA Deal

Senate Judiciary Antitrust Subcommittee Chairman Herb Kohl (D-WI) urged the Justice Department to carefully review Google's proposed acquisition of ITA Software, which provides online travel search software.

Sen Kohl said in a letter to Christine Varney, assistant attorney general for antitrust, that while he has not taken a "position on the ultimate legality of this acquisition under the antitrust laws," he said it was important for Justice to examine the concerns raised by several online travel firms. "As an independent provider of air travel search functionality, ITA currently has the incentive to license its service broadly as it has done since its inception. However, the incentives could change if ITA is acquired by Google," Sen Kohl wrote. "Participants in the on-line travel industry are concerned that Google could refuse to make the key components of ITA software available on reasonable terms to other online travel industry participants by raising the price for a renewed license or refusing to license improvements to the software." Sen Kohl also urged the department "to obtain a consent decree to ensure that Google's promise is enforceable and implemented in good faith."

E-rule-making has potential, but kinks must be ironed out, expert says

Public participation in agency rule-making can be enhanced via promotion on Facebook and dialogue on interactive websites, according to an academic running a pilot program for the Transportation Department. But the "jury is still out" on whether the significant labor such collaboration requires is worth what agencies would gain in fresh ideas and data, she said.

Cynthia Farina, a law professor at Cornell University and a principal researcher in the Cornell E-Rule-Making Initiative, gave preliminary results of pilot projects in which her organization performed Web 2.0 outreach and monitored online public participation in two recent federal rule-makings. One involved cracking down on texting by drivers of commercial vehicles, and the other involved delineating the rights of airline passengers.

Farina spoke at the National Archives as part of a lecture series celebrating the 75th anniversary of the Federal Register and on the eve of an expected release of new e-rule-making best practices guidance from the White House Office of Information and Regulatory Affairs. The federal notice and comment process, Farina said, is "ahead of its time" in using peer knowledge procedures to foment collaboration and permit average citizens, interest groups and independent experts to critique proposed rules, ask questions and suggest alternatives. But paradoxically, she added, e-rule-making has not lived up to its potential: "Rule-making looks like a prime candidate for e-government, but looks are deceptive." The two chief reasons are "the limited scope" of participating stakeholders and the tendency of participants to deliver "adversarial monologues" that talk at the agencies rather than with them, she said.

Why 10% of Your Friends on Twitter and Facebook Will Be Nonhuman in Five Years

How many of your "friends" on Facebook and Twitter are real? According to a new report by Gartner, one in every ten of your online friends will be nonhuman by 2015. That's not to say we'll be tweeting with zombies or playing FarmVille with ET. Gartner predicts the coming of "social bots"--automated tools used by brands and organizations to engage consumers. "Efforts to systematize and automate social engagement will result in the rise of social bots--automated software agents that can handle, to varying degrees, interaction with communities of users in a manner personalized to each individual," the report reads.

Energy Secretary Chu warns US Tech Lead at Risk

Secretary of Energy Steven Chu believes the US is at risk of losing its leadership in technology as the nation's competitiveness deteriorates. Sec Chu, co-winner of the Nobel Prize in physics in 1997, used statistics and blunt language in a speech at the National Press Club to point out that the U.S. lead in technology is declining and is in need of turnaround. He characterized the current situation as a " Sputnik moment " for the U.S., particularly in the area of clean energy development.

FCC Presentation on Implementation of the 21st Century Communications and Video Accessibility Act

On Nov 30, Federal Communications Commission staff made a presentation on the status of implementation of the "21st Century Communications and Video Accessibility Act of 2010" (P.L. 111-260). The presentation included a detailed schedule of when Reports & Orders (i.e., new rules/regulations) will be issued.

Orders to implement the new law will be released, as follows:

Deaf-Blind Equipment program, due 2nd quarter, 2011.
Video Description Reinstatement, due 4th quarter 2011
Hearing Aid Compatibility of Advanced Communications, due 4th quarter 2011.
Relay Service Contributions, due 4th Quarter 2011
Advanced Communications Services & Equipment, due 4th quarter 2011.
Internet Captioning of TV, due 1st quarter of 2012.
Closed Captioning of video devices, due 1st quarter of 2012
Accessible Internet Browsers, due 3rd quarter 2013
Compliance Report to U.S. Congress, due 4th quarter of 2012.
Video description on video devices, due 4th quarter 2013
Accessible User Interfaces, due 4th quarter 2013
Accessible On-Screen Menus, due 4th quarter 2013
Emergency Access to TV Programming, 2nd quarter of 2013.
Video description on video devices, 4th quarter of 2013
Accessible User Interfaces, 4th quarter of 2013.

FCC Continues Equal Employment Opportunity Audits

On November 30, 2010, the Federal Communications Commission mailed the third set of its Equal Employment Opportunity (EEO) audit letters for 2010. This mailing was sent to randomly selected multi-channel video programming distributors (MVPDs). The FCC annually audits the EEO programs of randomly selected broadcast licensees and MVPDs. Each year, approximately five percent of all broadcast stations and MVPDs are selected for these random EEO audits.

Watchdog cites gaps in security of wireless devices

Federal auditors have found holes in the security of wireless technology, including smart phones, Bluetooth devices and laptop computers, that federal employees use regularly in the office and on the go.

"Until [agencies] take steps to fully implement leading security practices, federal wireless networks will remain at increased vulnerability to attack, and information on these networks is subject to unauthorized access, use, disclosure or modification," Government Accountability Office auditors wrote in a report. Specifically, they found gaps in security guidelines for computers that are simultaneously connected to agency wired networks and insecure wireless networks. Unless officials configure the dual-connected laptops' security controls a certain way, hackers can compromise the wireless networks to infiltrate an agency's wired networks, GAO noted. In addition, auditors found agencies had insufficient policies on using mobile devices overseas; monitoring for unauthorized, rogue wireless networks; and scanning for unapproved devices. With the exception of the Defense Information Systems Agency, most failed to enforce secure configurations on BlackBerry smart phones, according to the report.

The auditors also warned that the Office of Management and Budget and the Homeland Security Department -- which directs federal cybersecurity operations -- might lack visibility into the security posture of the government as a whole. Agencies routinely report on security controls, as required by the 2002 Federal Information Security Management Act, but the most recent OMB-DHS reporting guidelines are silent on protections for dual-connected laptops, international travel and central oversight of wireless devices.

Benton

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