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I arrived in DC in the middle of last night without a phone charger, having left mine in Manhattan last weekend.  So this morning my first stop was a Verizon Wireless store downtown.  Right in the store, in a corner, I plugged in my phone and called back someone who had a lot of questions about yesterday's kerfuffle.  Sitting on the floor, I tried to explain why this story matters. 

[The convenience of the VZ store downtown (and in fact the ubiquitousness of those stores in most cities in the US) is a telling sign, so although I certainly recognize that it might seem like abusing their hospitality and electricity to rail about them from their own sales floor I decided to use it as an element in this story.  Thanks, Verizon Wireless.]

Did VZ act illegally?  No.  Although the regulatory story here is tricky, the bottom line is that although the FCC could require that short codes be offered on a nondiscriminatory basis, they don't.  The Communications Act says that commercial cellular providers have to act in a nondiscriminatory fashion to the extent they are providing "commercial mobile services."  But "commercial mobile telephone services" are defined as services that are interconnected with the traditional phone network - reachable via dialing a phone number.  Arguably, the short codes that the carriers allow people to subscribe to ("send me weather reports daily for $2.99 a month!") are not "phone number" services.  They're private numbers controlled by the carrier.   So they're not covered by this nondiscrimination mandate.  And VZ and all the rest of the carriers have many rules about who gets allocated a short code - I linked to those rules yesterday.

If VZ didn't act illegally, why should we care?  The shock of the public in learning that wireless carriers don't act like common carriers should tell us something.  From the consumer's perspective, a communication (for data, to a person, using any device, whatever) is a communication.  We assume that communications that feel just like phone calls are supposed to be provided on a common carriage, nondiscriminatory basis.   We think of communications as a utility, like electricity or water, that is regulated by the government.  It's alarming to find out that these gigantic wireless carriers think of themselves as providing a private service within which they can discriminate for any reason or no reason at all.

But isn't the wireless market competitive?  Why would we need government intervention?  Here's where the long view is important.  Wireless prices have been steadily rising since 1999, at the same time that the industry has been concentrating:  twelve wireless carriers that were independent as of 1999 have combined (through merger, spinoff, or joint venture) into these four large wireless carriers - Verizon, AT&T, Sprint, and T-Mobile. Verizon and AT&T already control 51% of the wireless market in the US and are growing very quickly.  Verizon ($22.6 billion operating cash flow) and AT&T ($17.8 billion operating cash flow) combined have 64% of the net additions to wireless subscriptions and 120 million subscribers.  These are rich networks that are getting richer.

But the salient marketplace isn't necessarily the market for wireless phone calls.  These same two companies, Verizon and AT&T, control DSL internet access through regional monopolies across the country, and offer these wireless services as part of packages that tie together traditional phone services, "IPTV" access, and internet access. Everything is bundled.  The elements of these bundles don't compete against each other, really.  And, as readers of this blog are tired of hearing, we don't have real competition for highspeed internet access.

But this issue is all about wireless phone calls.  So what?  This issue matters because Verizon and AT&T see the wireless future - and we should too.  These phone companies are making their key revenue in the wireless area, and they like the control that they have there.  They understand that we'll all be accessing all data/interaction/people using mobile handsets, and they'd like to wrest control of these communications from the PC arena - which is traditionally more open.  They'd like to have mobile phone standards, which allow network providers to charge for every transaction we do using a handset, apply to all of our interactions.  They'd like all applications to have to ask permission before they can be accessed - because that will allow the carrier to charge.  So they're hoping to move away from the traditional phone-common-carriage model to the "future" wireless-carrier-private-actor model as both a regulatory matter and as a business imperative, and they have the market power to do this.

That's why this story matters.  More than a billion handsets will be bought around the world next year.  We'll all be going online using mobile devices.  If the wireless "we get to discriminate" model of regulation applies to handsets in the U.S., the mobile carriers will be able to act as gatekeepers in the marketplace of ideas, choosing winners and losers.  The fact that a Verizon lawyer was empowered to say NARAL's texts were "unsavory" as a matter of company policy
is hugely important - Verizon may have withdrawn this particular decision (smart move), but that's just the tip of the iceberg.

We have to decide what model for communications regulation we want.  Do we want the carriers to decide what we do online, or do we want the carriers just to be carriers?  "Online," "cell phone," "telephone," and "cable" all feel the same to the consumer.  It's all just data traveling fast.  The regulatory reluctance of the FCC and the weirdly out-of-date structure of the Communications Act are allowing for differential treatment of the same kinds of transactions -- the FCC knows this, and so it is strongly leaning in the deregulatory direction.  "We'll treat everything the same way and everything will be a private network.  The market will be victorious!"  But as a matter of social policy and our own future, we should sharply question that direction.  We don't have enough competition or enough enlightened, nondiscriminatory communications companies to allow us to be confident that the market will be able to do anything.  We should move back towards common carriage for telecommunications - which will require that control over transport be separated from content.

So Verizon Wireless stores are everywhere, and incredibly convenient, because we're addicted to these devices.  They'll be even more important in the years to come.  But we shouldn't be addicted to the regulatory model that currently governs our use of these devices.  This will take leadership to change.

The Verizon/NARAL tornado that passed through the US telecommunications village today (brief, but with a lasting effect) propelled me into reading the carrier rules for use of short codes.

They're remarkable.

Take a look at Verizon's rules, starting on p. 40 of the pdf.  No bad words, no chat services, no gaming, no dating services - nothing that Verizon thinks would either offend people or compete with its own services.

So now AT&T has joined Verizon (and Frontline) in challenging the FCC's 700 MHz proposed rules. 

AT&T's beef is not about the no-locking, no-blocking rules - rather, they're focused on the block of spectrum that a commercial private actor is supposed to use to build out a network for public safety's purposes (the "public/private partnership").  They're saying it's too hard to do a deal with public safety officials before the auction.  There just isn't enough information coming from public safety about what it needs. 

I'm focused on two things:  (1) Verizon's arguments (we should know more in the next few weeks, when they file their statement of issues due October 10), and (2) the lawfulness of the entire "reserve price" scheme.

Think about it.  How can the FCC condition regulations (about what should be a common-carriage public service anyway) on the payment of money?  And then have the rules dissolve if it doesn't get the money?  This is such a pure quid pro quo - it's government for sale.  Completely screwy.  But how do you say "completely screwy" in legalese? 

Sure, it's arbitrary.  But is there some constitutional dimension to the arbitrariness?

From the esteemed Dan Hunter comes the following:

From television (YouTube and Revver) to advertising (craigslist and consumer-made TV ads), movies (Machinima), photography (Flickr and iStockPhoto), and news (blogs and citizen journalism), technology is enabling amateurs to produce and distribute high-quality content that people want to watch, read, consume, re-use, and buy.  Media and entertainment companies are facing a range of challenging new issues.

On November 2, 2007, New York Law School’s Institute for Information Law & Policy will host the inaugural Amateur Hour Conference to bring together leaders in business, law and technology to focus on the opportunities and challenges of user-generated content to traditional media & entertainment businesses.

Confirmed speakers include Professor Clay Shirky (NYU professor, and author of the forthcoming book "Here Comes Everybody"), Kai Falkenberg (Editorial Counsel, Forbes Magazine), Nathan Freitas (Co-founder, Cruxy.com), Heather Moosnick (VP Business Development, CBS Interactive Audience Network), Brian Murphy (Partner, Frankfurt Kurnit Klein & Selz, PC), Marni Pedorella (Vice President, Intellectual Property, NBC Universal), Stanley Pierre-Louis (Vice-President and Associate General Counsel, Viacom Inc.), Lisa Stancati  (Assistant General Counsel, ESPN), Marty Schwimmer (The Trademark Blog), David Sternbach (Director Legal & Business Affairs, A&E Television Networks), and Ken Werner (President, Warner Bros. Domestic TV Distribution).

Amateur Hour follows in the cutting-edge and interdisciplinary tradition of New York Law School’s enormously successful State of Play conferences, which for the last five years have brought together scholars, technologists, and business leaders to study virtual worlds.  The Amateur Hour conference will begin a new series of conversations about the changes that the Internet brings to media and entertainment.

Space is limited so please register early.  We look forward to seeing you at Amateur Hour.

For conference schedule and registration please visit: New York Law School-Amateur Hour.

I checked, and the registration fee is a delightfully participatory $50.

One of my students asked whether his television set, connected to a cable system but with no set-top box, would be able to receive digital television after February 17, 2009.

So I decided to try the experiment of being a consumer with this question.  I was happy to see the NCTA has this site with information about how this will work.  And this:

The good news for cable customers is that the digital transition should be easy.  Thanks to a compromise adopted by the FCC in September 2007, cable companies will carry the main digital signal of “must carry” commercial broadcast TV stations and will duplicate that signal into analog format so that all channels can be viewed on any older analog TV sets connected to cable.

That's putting a bright spin on a mandate that cable systems do the work of transforming digital broadcast signals into analog so that a majority of the people with cable subscriptions will be able to continue to watch all of their local broadcast stations on analog TVs until at least 2012.  (I'm not sure whether cable systems will be allowed to charge for offering the analog version of the digital signal.)  Also, see the words "main digital signal"?  The FCC agreed to allow cable operators to remove sub-channels from the broadcasters' digital signal so as to allow as much compression of the signal as possible. 

But if you're not connected to cable this could be tricky.  The first converter box has been approved [site requires free registration], but it costs $69.99.  Lots of hearings are scheduled to examine how on earth consumers will hear about the digital transition and be allocated vouchers for these boxes.

Why are we going through all of these conniptions with broadcast, when the broadcasters themselves realize that they won't survive unless the cable systems carry their signals?  When their sub-channels won't be carried? And when broadcasting is becoming just a subset of online content anyway?

The answer is that over-the-air television is free (in that you don't have to pay a subscription fee, even you do have to spend time watching the ads), and no one wants to be the politician who strands people without a television signal.

Soon we'll all be in virtual Google-worlds...

I know it's so common to think Aaron Swartz is special because he was a co-author of RSS when he was 14. 

But I really like one of his new side-projects, jottit.com.  Go take a look. 

It's always been so hard for ordinary people to create web sites.  This one allows you to pick a name for your site, then "claim" it, decide whether to apply a password to it, and whether other people will be allowed to edit it.  Then you're on your way, setting up your site.

This would be great as a place to share notes and links easily without using rigid templates or fancy authoring software.  It's sort of an automatic, right-away wiki.  While you're editing, you can see what your page is going to look like.  It's extremely simple and clean.

When I was in high school I remember going with a group to play a concert in an Elks lodge.  The room was dusky and the building was a little broken down.  There was a giant sign in the room where we played that read, "Keep America Strong. Ask A Young Man To Become An Elk."  The people there were boisterous and kindly.

Well, I think I've found the home of the telecommunications-Elks.  It's amateur radio.  The ARRL Ham Radio License Manual is full of folksy, boisterous, exclamation-point-studded advice.  You get the feeling that every ham is sincere and fun-loving:

Why don't people just buy radios and transmit anyway [without a license]?  . . . Because it's quite apparent to hams who has and who hasn't passed a license exam.  You'll find yourself attracting the attention of the Federal Communications Commission, but more importantly, you won't fit in and you won't have fun.

A long, friendly conversation is known in ham-dom as a "ragchew."  And this was my favorite part, about Morse code:

Many operators enjoy the rhythm and musicality of "the code," as well.  Aside from its utility as a communications protocol, it's a skill like whistling or painting that you can enjoy for its own sake.  Listening to a skilled Morse operator chatting away or relaying messages is quite a treat!

I have a very soft place in my heart for the Elks, and for the hams, and I very much enjoyed my day with the amateur radio manual.  It all works out so smoothly - voltage, current, resistance, and power all relate, and you get to sit there imagining contacting other hams in state after state.  "CQ CQ CQ, this is W1AW calling CQ!" the manual instructs, and I can't wait until I get my own call sign.

A woman sitting a row behind me in the plane told me she was jealous of my studying the manual - she wants to get her amateur license too.  She told me that she saw the latest Bruce Willis movie last night and that ham radio saved the day.  "It was so exciting!" she said.

Keep America Strong.  Ask A Young Person To Become A Ham.

Four Septembers ago, I started this blog.  It's mostly been a delight, a homecoming each day, to be here and write a little.  Today is my thousandth post.  So I'll keep it short.  Enough already!

First, for Kaliya Hamlin, who has to go through life rhyming with an overbearing regulatory cost-shifting scheme, a big congratulations for the upcoming She'sGeeky unconference on Oct. 22-23.  I can't be there, but I'm with you in spirit.

Second, for everyone that's had anything to do with OneWebDay all around the world, a huge thanks in advance, and for all the years to come.

On April 18, 2006, I was in Oxford (thanks to Jonathan Zittrain) giving a talk at the Oxford Internet Institute that Google Desktop tells me was titled "Seeing the Net: Recent FCC Developments."  The slides I talked through had to do with Bellhead/Nethead differences and the new laws, new institutions, and new asymmetries of information that the telco-incumbent-persuaded FCC was forwarding.  Because it was Oxford I wrote out my notes in some detail, and I can see that I talked about net neutrality at length.

I tried to convey the idea that allowing network access providers to discriminate was bad policy - it advances the interests of autonomous actors (the network providers) without sufficient regard for the overall social good.  I'm confident I talked about sidewalks, substrates, and openness.

Well, I distinctly remember being told by some Ofcom representatives who were there (this was 18 months ago, so I feel I'm not violating any confidentiality now) that neutrality was always going to be a solely American issue.  They were extremely confident.  Their arms were folded, and they told me what was what, and neutrality was simply not on the table.  "You're assuming the presence of a network," they told me.  "Of course prioritization is necessary for broadband access - otherwise the providers won't be able to recoup their expenses."

Yesterday CNET reported that there's a professor in the UK (Nigel Shadbolt) that thinks it's time for the UK and Europe to get into the neutrality tussle.  According to Shadbolt:

[The Web is] 'all about making content visibly available to anybody who chooses to take it and not have intrinsically built in a system of ways of applying explicit filtering.'

He's convinced this issue will be relevant for the U.K.:

'We can't not have the discussion,' added Shadbolt.  'It's not as if it's of no relevance to us.  What happens in the U.S. will make its way here."

It makes me glad to see Nigel Shadbolt suggesting that net neutrality isn't just American.  I'm sure he's getting the same chilly reception I did, but at least he has the right accent - "Nigel Shadbolt" clearly is a native.

There was a big BusinessWeek story recently about the enormous contributions cell phones can make in developing countries -- and particularly in Africa. 

'Mobile technology has brought many fruits, and no bad things,' insists Isaac Mahenia, a schoolteacher and part-time farmer in Muruguru. Abraham Maragua. . .agrees that life is finally getting better in the village, and that mobile phones are part of the change.

I thought this was a pretty strong and interesting story, and I took it at face value. 

But other people whose opinions I respect saw this differently - as an advertisement for the mobile phone industry in Africa.  And, even more strongly, as an excuse for developed nations to limit their investment in development.  Wireless doesn't help with access to the internet unless there are fiber connections (somewhere) to connect to, and without basic infrastructure and a certain stability those fiber or copper connections won't be safe.  Infrastructure like this (fiber, copper, water, electricity) requires longterm investment.  Wireless isn't a substitute for all of that.  Subscribers will be sharing scarce connections to the internet, and in the end the country won't make all that much progress.  But wireless carriers will indeed do well.

Someone sent me a second story that relates to this one.  It's from newspapers in California decrying the unbelievable lobbying strength of the carriers there.  The headline tells the story:  "Activists Say Industry Money Silences Pro-Consumer Bills."

The industry doesn't want people to pay pro-rated termination fees, arguing that high set fees subsidize the free-ish cellphones that consumers enjoy.  So switching is hard.  The industry doesn't want to allow unlocked phones (evidenced yet again by Verizon's lawsuit last week).  The industry doesn't want clear disclosures about taxes and fees associated with phone bills.

At the same time, lots of cell-phone-company money goes to Republicans in California, and "[o]f the $7.2 million handed out by telecom companies with cell phone divisions since 2005, more than $600,000 has gone to the California Democratic Party."  So bills that might require consumer-friendly behavior in California are dying.

These two stories go together, in a sense.  In the first, new, developing-world consumers are benefiting from cellphones and aren't aware that it isn't a good idea to skip infrastructural steps -- and the wireless carriers are doing well.  In the second, "old," developed-world consumers are benefiting from cellphones and aren't aware of how locked-in they are to high termination fees and locked-up equipment -- and the wireless carriers are doing well.  No conventional means will have much effect on any of this.  

Things are heating up in the white spaces proceeding.  The Commission will soon have to decide what to do.  How will it deal with the conflicting technical evidence on interference, particularly given the abject failure of the Microsoft device last month?  Is there a way to slice up the issue so as not to cut off later decisions about unlicensed portable devices?  What impact should the  broadcasters' claims about not wanting to delay the DTV transition have, particularly given that the broadcasters themselves will end up (inevitably) delaying the transition themselves?  There are no objective answers here.  These are all deeply-contested, subjective, political issues.

Filings from the last week:

Google's Larry Page called Chairman Martin to explain that consumers care about prompt completion of the white spaces proceeding and that new portable devices can avoid interference.

A huge flock of broadcasters (the "Association for Maximum Service Television"), sports leagues, television manufacturers, and others emphasized to the Commission the importance of over-the-air television, "especially during emergencies," and claimed that the sensing levels the FCC is using to test portable devices don't adequately protect TV transmissions.  They're also arguing that fixed devices can be used in the white spaces to help rural broadband penetration.

Former Commr. Kathleen Abernathy called in from Akin Gump on behalf of the above-mentioned Association for Maximum Service Television to point out "the need to ensure that the digital television ("DTV") transition proceeds smoothly" and to note that "the potential for interference caused by mobile devices operating in broadcast spectrum would complicate the transition."

The presidents of Entravision, Telemundo, TuVision, and Univision wrote in to say that "[b]ecause of [the] very tangible and significant threat of interference to Hispanic television viewers, large numbers of whom continue to be over-the-air viewers, we urge the FCC not to allow the wholesale introduction of untold numbers of personal and portable unlicensed devices into the television band until it can be conclusively demonstrated that they will not interfere with broadcast operations."

And the New America Foundation makes the key point: 

"It is important to bear in mind that "sufficient protection" from harmful interference is not a simple technical matter but a complex question of weighing potential benefits, risks and user expectations. For example, while broadcasters would set standards sensitive enough to protect every out of market signal – however distant – from the risk of intermittent interference, to do so would create such enormous costs and so limit the availability of the spectrum as to render such rules effectively unworkable."

The received wisdom last month was that the carriers wouldn't challenge the 700 MHz auction rules because they wouldn't want to be seen as getting in the way of the DTV transition.

The received wisdom was wrong.  Thanks to FreePress for the word that Verizon Wireless has filed a petition in the D.C. Circuit claiming that the "open platforms for devices and applications" portions of the auction rules (the "no locking, no blocking" rules):

Just as a guess, I'd say that VZ Wireless intends to claim that, as in Fox v. FCC, the Commission simply invented these rules (which are a change from the way the wireless carriers have been allowed to act to date) without having enough evidence on which to do so.

And they'll also claim that wireless carriers are "speakers" under the First Amendment and should not be compelled to allow applications and devices to attach to their networks.

They'll probably also claim that there was inadequate notice of these (hardly dramatic) new rules - something like that - and that that violated the Administrative Procedure Act.

The "exceeding authority" idea is interesting.  The last well-known case that questioned the FCC's authority to regulate anything that had something to do with communications was the D.C. Circuit's broadcast flag opinion in the early summer of 2005. 

So we're in for some delay.  The very modest, much-less-than-halfway measures taken by the Commission are under attack - which shows how vitally uninterested these incumbents are in having their business models undermined.  Even for a tiny piece of spectrum. Even when they already have all the frequencies they need.  This will be well worth paying attention to.

Here's a vignette for you:

When [Jacqueline du Pré] was six years old, the story goes, she went into her first competition as a cellist, and she was seen running down the corridor carrying her cello above her head, with a huge grin of excitement on her face.  A custodian, noting what he took to be relief on the little girl's face, said, "I see you've just had your chance to perform!" And Jackie answered, excitedly, "No, no, I'm just about to!"

I spent a lot of energy writing this past summer about how important to experimentation unlicensed uses of the "white spaces" are.  And if you search on this blog using "white spaces" you'll see a number of breathless posts about how key this entire endeavor is.

Now I know I'm right, because today the broadcast industry is marching on Capitol Hill, flags waving, guns booming, to make sure that no one ever gets to use these unused frequencies except them.  Their battle cry (invented by me):  "If we allow unlicensed, portable uses of these white spaces, broadcast television as we know it will come to an end."  (With thanks to Joel Brinkley's wonderful book, "Defining Vision.")  If these guys are this worried, something important must be going on.

Great headline in Broadcasting & Cable:  TV Industry Storms Hill, FCC Over White Spaces.  And this press release from the National Association of Broadcasters: Broadcasters, Sports Leagues, TV Set Makers Unite in Opposition to "White Space" Interference Zones.  Hear that coinage?  "Interference zones."  These aren't vacant places, these unused frequencies - they're places of great danger to all-American television, the thing that gets the words of the elected legislator across to his/her people, the thing we all grew up with.  "Hot zones."  "Interference zones."  Get it?  Toxic! Destructive!

There's another side to this battle.  The softer-voiced people (who know what they are talking about) at the New America Foundation will calmly tell you (if you are willing to listen) that in fact there are plenty of ways that new portable devices can avoid interfering with your television set.  Let's hope that someone's listening.  This is a central battle for innovation, and surely empirical evidence should carry some weight.

It's clear that last week's Dept. of Justice filing hewed very closely to arguments often made by AT&T and others opposing any form of limitation on their ability to prioritize communications on their networks.

But it may be too easy to say that DOJ is in thrall to AT&T.  This may be part of something much more significant.

The Bells, Hollywood, and law enforcement all have strong interests in controlling online communications.  The internet disrupts their business models.  We can see this in the AT&T fight against network neutrality (and the Pearl Jam story); in the studios' determination to blame P2P software for every form of sin and every possible security risk; and in law enforcement's desire to ensure that all highspeed internet communications have a back door that makes them easily tappable -- as well as to ensure (see n.20 of the DOJ filing) that "public safety" packets get priority.

Non-neutrality writ large, which carries with it the ability to impose differential "quality of service" treatment on different packets, serves the interests of all three of these groups. 

Non-neutrality also serves the interests of those who would like (more generally) to see the internet morphed into something much more akin to the current wireless model here in the US: a fully-monetized network, permitting use of particular applications that share their revenues with the network access provider.  (This network would not be the same thing as the internet.)

Another document came out last week that ties this all together.  It's from the ITU, and it's called "Trends in Telecommunication Reform 2007: The Road to Next-Generation Networks (NGN)."
 
The ITU defines "NGN" as a network that provides quality-of-service-enabled transport technologies.  The idea is that packet transport will be "enriched with Multi Protocol Label Switching (MPLS) to ensure Quality of Service (QoS)."

Translation, as far as I can tell:  packet transport becomes the same as circuit-switched transport.  Prioritization is controlled; it's a network optimized on billing.

Now, the ITU has been working on "NGN" for an awfully long time.  It holds many many meetings about it.  It takes a lot of work to change an open system into a cellphone system.  But a cellphone system would put the network operators (and their friends in Hollywood, and law enforcement), back in charge of communications.  They'd be able to charge whatever they want, outlaw whatever they want (eg, unwanted P2P communications, non-CALEA-compliant communications), and generally run the show they way they used to in the old days.  It's not clear that the "road to NGN" will ever actually be followed.

The DOJ filing is another step along that road.  It parrots AT&T, but it may be tied to a much larger incumbent agenda around the world.

This happened earlier this year, but it's still interesting.  Rep. Bobby Rush, in whose district Shure (wireless microphones manufacturer) resides, introduced a bill that would put off even considering having mobile wireless devices in the white spaces until 2012.

What would you do if you were a big online company that wanted to take advantage of the white spaces in an unlicensed way and route around the incumbents?  Would you build a new prototype device and try to convince the FCC that the old one was just broken?  Would you wait it out until a new administration showed up and hope for better treatment?  Would you take Rep. Rush's bill seriously?

I'm thinking of becoming a ham.

Today was a good day because I got the chance to talk about how the internet works with a class of law students.  But now it's time to move on, no time to blog, and I'll be back writing here tomorrow.

For a break, go look at Jeremy Denk's last two entries.

I remember being told three years ago that, in general, internet backbone issues weren't really a subject for regulatory involvement, and didn't need to be.  Although the last mile was a problem, the upstream fat-pipe relationships weren't - they were all competitive and thriving.  Or at least that's what people thought.

Over the last couple of days I've been looking around trying to figure out what the facts are about backbones and peering.  It seems that we don't even know what we don't know ("we" being the public).  It's an interesting area.  Wikipedia has a good article on peering, but I can't find a visualization of data (or even the data itself).

CAIDA makes clear, via kc claffy, that data about what happens on backbones is not available to us or, more importantly, to researchers.  Gordon Cook says that everything about prices for backbone carriage is secret.

Why does this matter?  Perhaps this is too simple, but if large ISPs (including traditional incumbent telephone companies, here or in other countries) have the market power to refuse to carry the traffic of smaller/competitive ISPs, or to condition the carriage of this traffic on agreement to particular discriminatory policies, then the neutrality problem just goes up a level.  It ceases to be a "last mile" problem and becomes a backbone problem.  If all arrangements carried out by large carriers are private and secret, then there isn't even a platform for a policy discussion - traffic carried by (say) nondiscriminatory, smaller ISPs will just go more slowly. 

In a way, the backbone issue (if there is one) potentially bears the same relationship to "network neutrality" that government ownership/control of spectrum bears to our current scuffles over spectrum policy:  we may be missing an enormous part of the issue without knowing it.  It's as if we're trying to describe the "issue," the small vessel of points and counterpoints, without seeing that the vessel is housed in a gigantic, fortress-like, and mostly secret building. 

(In America, as in many other places, our government controls a huge amount of spectrum without paying for it or even carrying its value on its books. Or even making precisely clear how much it really controls.)

So maybe I'm misunderstanding the importance of this issue, or maybe there really is a competitive backbone marketplace out there.  But I wish there was more information about this.  It seems fundamental.

Every once in a while I look in on the white spaces, to see how things are going.  You'll recall that the white spaces are unused, non-contiguous ("swiss cheese" ) frequencies between broadcast stations around the county.  Commr. McDowell of the FCC has said that initial rules for the white spaces will be released sometime this fall. 

If the white spaces are made available on an unlicensed basis for use by opportunistic, "smart," low-power mobile devices, entrepreneurial engineers will think of ways to use this wealth of spectrum (300 MHz wide, if fractured) to provide mobile connections to whatever fiber installations are nearest.  At the very least, they will experiment -- and we could use some experimentation.

But the broadcasters are up in arms over this disruption.  They can't imagine that mobile personal wireless devices won't interfere with their broadcasts, and they're positive that unlicensed use of this spectrum shouldn't be allowed.

This week in the white spaces: 

1.  Philips Electronics says that its device is super-sensitive to wireless microphones.  So all the entertainers and sports announcers (including Wolf Pack Sports and a company handling multimedia rights for college sports teams, filers this week) and clerics can relax - use of the Philips prototype won't interfere with their lives. Philips also says that it's time for the FCC to issue its rules allowing unlicensed, portable uses of the white spaces so that devices can be designed and ready for the market in February 2009 - the date of the digital transition. 

2.  The wireless microphone people don't agree, and urge the Commission to stop even considering portable unlicensed uses of the white spaces. 

3. More seriously, GE Healthcare claims that "controlling the presence of personal/portable devices within the premises of healthcare facilities is an intractable challenge" that will pose risks to medical telemetry (basically measuring information about humans), and argues strongly that the New America Foundation doesn't understand the healthcare environment.

4. The White Space Coalition (Dell, EarthLink, Google, Hewlett-Packard, Intel, Microsoft, and Philips Electronics North America Corp.) checked in with the FCC's Office of Engineering & Technology to remind that office (probably not for the first time) that requiring too much sensitivity and too low power levels of these opportunistic portable devices was probably a mistake.  Decoding:  if we require these devices to be so low-power, we won't be able to do any real experimentation; you're letting the incumbent broadcasters run the show, when we really should be shifting away from them.

5. The Association for Maximum Service Television and the National Association of Broadcasters (we can refer to these groups, collectively, as the broadcasters) piped up, saying again that personal and portable devices should be prohibited from operating in what they call the "television spectrum".  Decoding:  it's still our spectrum, even though we're not using it, and if you outlaw portable devices these opportunistic uses won't take off -- people don't really want fixed devices, they want mobility, and they won't buy fixed devices in enough numbers to make manufacturing them worth it.  The broadcasters are also contesting the sensitivity standards, saying that these devices should be much more sensitive in order to avoid interference with television signals.

If we take this week's filings as a poetic symbol in small of the entire proceeding, I'd say that we're headed for delay, or at the most a partial set of October 2007 rules that don't deal with the unlicensed question - leaving it open for another day.  That's too bad, because we'll see explosive innovation if these white spaces are unlicensed sooner rather than later.

Let's hope that Chairman Martin's inclination to allow unlicensed uses remains strong.

The received wisdom here in the U.S. is, according to Gregory Sidak of Georgetown, that prohibiting telecommunications companies from entering vertical markets is a bad idea:

In general, statutory barriers to entry are strongly disfavored by scholars of regulatory economics.  In practice, they are surprisingly costly to implement in technologically dynamic industries, they invite abuse through rent-seeking behavior, and they run the risk of harming consumer welfare.

Well, the EU telecom commissioner, Viviane Reding, has a different point of view.  She thinks that functional separation (separating a communication company's transport functions from its content dreams) leads to competition, faster internet access speeds, and better communications for consumers.  According to the Financial Times, she views the British Telecom split between "networks" and "services" as a positive development.  Her office has already sued Germany for letting Deutsche Telekom get away with vertical integration. 

No stranger to controversy, Ms. Reding has a remarkably consistent method...First, she outlines outlandish ideas then waits for the air to clear before returning to the table to get a deal.

Calling this "outlandish" may indicate that the Financial Times itself is a little distant from the fray.  These are serious economic questions, and Japan certainly takes the notion of separation seriously -- at least on the DSL side of things.

===And today I went for the first time to the Ann Arbor Bim Bi Bop lunch, organized by the well-connected Ed Vielmetti.  At least 30 people, in all kinds of technology-related walks of life.  The introduction ceremony involved telling people how you could tell that the summer was ending.

As cars overflowing with stuff crawl slowly towards dorm rooms and apartments here at the University of Michigan, it's worth spending a moment to consider some mainstream news reports that share a downward-sloping psychic curve.

Regulators all over the world would like to have a say about U.S. lending policy, the Times tells us:

Politicians, regulators and financial specialists outside the United States are seeking a role in the oversight of American markets, banks and rating agencies after recent problems related to subprime mortgages. . . . International investors are . . .  asking why American lenders were allowed to give mortgages to home buyers who could not repay them.

We're being whupped by Japan when it comes to internet access, says the Washington Post, and people are finally making the connection between communications regulation and economic growth/innovation.   There's a nice quote from Vint Cerf:

Japan's lead in speed is worrisome because it will shift Internet innovation away from the United States, warns Cerf, who is widely credited with helping to invent some of the Internet's basic architecture.   'Once you have very high speeds, I guarantee that people will figure out things to do with it that they haven't done before,' he said.

And, finally, USAToday pulls together data on the Katrina recovery:

Of the $116 billion appropriated by Congress to Gulf Coast recovery, $34 billion has been earmarked for long-term rebuilding. But less than half of that has made its way through federal checks and balances to reach municipal projects. Throughout the Gulf Coast, residents are asking why their government — at every level — hasn't done more to streamline the process and bring more rebuilding dollars to the region.

These things all relate to America's sinking, slowing, decaying, softening views on the public role of infrastructure.  Just like the rebuilding of a city, internet access and sensible rules about credit are part of baseline civic needs.  Nothing much will happen on any of these three fronts until the next election, and even then it's likely that any "practical" U.S. leader will take an accomodationist, incremental approach.

Welcome to another sinking, slowing, decaying, softening academic year in U.S. history.  Maybe by next fall we'll be more willing to be impractical.

Today was the day I finished off my cyberlaw syllabus.  You should take this course!  It's got life, death, technology, transfiguration, and plenty of cases in which Perfect 10 is the plaintiff or Google is the defendant (or both). 

More tomorrow.

Two news items interestingly connect today:  First, the airing of Ken Burns' new documentary, "The War," is causing broadcasters some anxiety, because it contains four fleeting expletives.  From SFGate.com:

Many public broadcasters aren't sure whether the FCC will fine public television stations for airing 'The War,' and the FCC hasn't revealed its position.  That uncertainty is placing the broadcasters in a difficult position.  They must either show a documentary in a form other than the artist created, or risk getting hit with large fines for broadcasting naughty words.

And the notion that unlicensed, portable uses of the white spaces might be possible is causing broadcasters some anxiety, because they're absolutely convinced that these uses will interfere with their programming.  From Broadcasting & Cable:

'[Even if] both the Phillips and Microsoft devices work as advertised, they will still cause interference to over-the air TV reception,' says David Donovan, who heads the Association for Maximum Service Television.

These poor broadcasters.  They're stuck with an uncertain regulator.  They crave protection, they cherish their special status, but they can't tell what's going to happen next - and it causes an awful lot of anxiety for them.  It's a schizophrenic existence, being a broadcaster.  Your entire existence is predicated on the favors granted you by government.

Surely the broadcasters should cut themselves loose, sell off their airwaves, and retreat to the countryside.  Calmer all around.

It's common knowledge that companies that provide access to the internet cooperate with law enforcement.  The telephone companies have always been closely tied to emergency responders and the police -- in times of need, people reach for telephones, and this close cooperation has allowed many rescuers to reach panicked callers.  But the cooperative relationship springing from law enforcement's surveillance needs is just as close.

In the NSA spying scandal, the administration has frequently claimed that to reveal the nature of network providers' involvement with the apparently unlawful wiretapping would reveal secrets - and therefore this relationship can't even be discussed in court.  Now the director of national intelligence, Mike McConnell, is admitting that "the private sector" (the network operators) did indeed help out:

Now the second part of the issue was under the president's program, the terrorist surveillance program, the private sector had assisted us. Because if you're going to get access you've got to have a partner and they were being sued. Now if you play out the suits at the value they're claimed, it would bankrupt these companies. So my position was we have to provide liability protection to these private sector entities.

And McConnell also says that people will die because we've been so public about our discomfort with this illegal wiretapping program. 

It's all pretty rich.

Q. So you're saying that the reporting and the debate in Congress means that some Americans are going to die?

A. That's what I mean. Because we have made it so public. We used to do these things very differently. . .

Fifteen minutes before the film was supposed to start tonight, a slight trim man in a madras shirt bounded towards the front of the theater.  I'd noticed the organ keyboard facing the audience before he came in, and I'd idly thought about people sitting through silent movies accompanied by virtuosos staring up at the screen.  But then this guy came flying down the aisle and sat down on the bench, his back to the ten or so people scattered around the theater.  It took him a long time to get the light to work above the organ - he fiddled with it patiently, and his confidence in its workings paid off when the light finally flickered on. 

There must be a "swoop" stop on this particular theater organ.  The first few notes he played were surprisingly tremulous (weird, wild vibrato) and replete with slides from one note to the next.  Was he setting the mood for the Jane Austen movie that the ten scattered people were going to see?  It was a sort of Hitchcock mood, if he was.  Theremin in madras.

When I got here today it was blazing hot, and I really needed yet another pair of sunglasses in order to move around outside.  The woman in the store who sold me the glasses (which I will lose in the next few days) said that what she really liked about Ann Arbor was the people and the absence of franchises.

This guy at the organ was definitely not a franchisee.  He played "People Will Say We're In Love" with tremendous religiousity, big plagal cadences.  He played "Surrey With The Fringe On Top" with aplomb, and "Oklahoma" with the "swoop" setting in full flower.  Big blasts of sound, starting from nothing.

It was real artistry.  You could tell when he was getting to his big finish - Oklahoma blew around us, big baseball-stadium chords, and we wanted to burst into applause.  That's when the real organ-show started - he improvised with "You Must Remember This," as the screen finally lit with images. 

But it wasn't time for the film just yet.  He was improvising to the sponsors' brands, staring up at the screen, riffing on You Must Remember This, as the Ann Arbor Improvement District (paraphrasing here, I don't remember the sponsors' names) expressed its silent support for this great theater that had brought us all together, in emptiness, with a guy in a madras shirt playing the organ as if his life depended on it.

He ended smoothly, the sponsors stopped rolling, and the film began.  No previews.  This time we were released to applaud, and he bounded back up the aisle, smiling just a little.

That's the title of a short film that plays when you visit the Morgan Library.  J.P. Morgan went in search of beautiful things, and tried to buy as many as he could. 

 

Speaking of beautiful things, here are a few more words from Walter Pater:



I have said that the peculiar character of Botticelli is the result of a blending in him of a sympathy for humanity in its uncertain condition, its attractiveness, its investiture at rarer moments in a character of loveliness and energy, with his consciousness of the shadow upon it of the great things from which it shrinks, and that this conveys into his work somewhat more than painting usually attains of the true complexion of humanity.


So - what's the great thing from which you are shrinking today?

==================================================
One month to go until OneWebDay: September 22.  Here's a Rocketboom segment (translated into a zillion languages, thanks to dotSUB.com), a great post from Beth Kanter about OneWebDay, and some news:  Jimmy Wales (Wikipedia), Andrew Baron (Rocketboom), Dana Spiegel (NYCWireless), Birju Pandya (CharityFocus.org), and more will be speaking at Washington Square Park on Sept. 22, Saturday, between 3 and 4 pm.

Carl Malamud is doing his best to make historical court decisions visible online.  This is inspirational - it took a huge fight for the online publishers to give up on controlling ownership of citations to page numbers in court decisions.

As the comments to this Tim O'Reilly post make clear, there are several places online where current court decisions are publicly available.  I frequently go to the Cornell Legal Information Institute.  But the historical data is hard to get to.

Another admirable effort of Carl's is getting Congressional hearings online.  (Plus, any opportunity to tell people about the Internet Archive is a good thing, so follow the link.):

There is a concrete, funded set of initiatives to finish the wiring of the [Congressional hearing] rooms so that all hearings have video coverage, and it is clear from a technical point of view that it is possible to achieve the goal of broadcast-quality video for download on the Internet by the end of the 110th congress. The recommendation to adopt that goal is currently awaiting action from the Office of the Speaker and the Chairman of the Committee on House Administration.

Go, Carl.

Routing around traditional publishers who want to create friction (or barriers to entry) for online access to data isn't easy.  This is the same extended tussle that ScienceCommons.org is engaged in.  In the end, the gatekeepers should lose, particularly where the public benefits so far outweigh the private returns to the publishers.  A cure for Parkinson's, made possible because scientists can easily share data across disease silos, or another royalty for Reed Elsevier?  You be the judge.

Here's an uplifting thought that has nothing to do with internet policy:

For the essence of humanism is that belief of which [Pico della Mirandola] seems never to have doubted, that nothing which has ever interested living men and women can wholly lose its vitality -- no language they have spoken, nor oracle beside which they have hushed their voices, no dream which has once been entertained by actual human minds, nothing about which they have ever been passionate, or expended time and zeal.

That's coming to you from Walter Pater, in 1871.  If you're ever feeling rattled or rushed, just read that through a few times.

==

But back to E911.  Back in March 2004, the FCC started the "IP Enabled Services" rulemaking, saying that it wanted to consider what "social policies" should apply to "services" that use the internet protocol.  It's worth pausing to remember just how broadly the Commission stated its jurisdiction:  "[T]he scope of this proceeding – and the term “IP-enabled services,” as it is used here – includes services and applications relying on the Internet Protocol family."  In other words, everything online. 

One of the first "social policies" the Commission took up was consumers' ability to "call" emergency services and have automated location information provided to the call center.  (People can't always give their location coherently in an emergency.)

In its 2005 E911 Order, the Commission mandated that "interconnected VoIP" providers be able to route all 911 calls (accompanied by a call-back number and the caller’s location) through the traditional telephone 911 network to appropriate local emergency authorities.   The Commission defined "interconnected VoIP" as those services that (1) allowed for real-time, two-way voice communications, (2) required a broadband connection, (3) required end-user equipment to process and receive Internet Protocol packets, and (4) allowed users to both receive calls from traditional telephone networks and make calls to telephone numbers.

The Commission set an unrealistic timetable for this (but that's another story), and effectively required all VoIP providers to negotiate without leverage with the incumbents who control access to the public safety answering points (but that's also another story).  All of this was very hard for VoIP, which doesn't necessarily tie to physical location without the active involvement of the user ("I'm over here!").  Basically, the entire 911 system was built for the telephone era, not the internet era.

The FCC also hinted that it might broaden the definition of "interconnected VoIP" at a later time and might require automatic location information to be provided by devices:

Should the Commission require all terminal adapters or other equipment used in the provision of interconnected VoIP service sold as of June 1, 2006 to be capable of providing location information automatically, whether embedded in other equipment or sold to customers as a separate device?

This was a big deal, this suggestion, because we don't usually require location information to be provided as a condition of marketing or using a device or application.  In fact, many people worry about the privacy implications of constantly being forced to say "I'm over here!"  (Your cellphone, at this point anyway, probably gives you the option of reporting location only when you actually make a 911 call.)

Earlier this summer, in May, these other shoes began to drop.  The Commission issued a notice saying that it was interested in requiring wireless providers and "interconnected VoIP" providers to provide better/more constant location information at all times.  They said that they had tentatively decided to require "interconnected VoIP" providers to automatically report location to the existing public safety answering points (take a look at p.7, para 18).

This is a big deal.  I realize I keep blogging that these proceedings are big deals, but that's because they're so hard to follow and yet so important that I need to find some simple way of putting across the message that this needs attention.  It needs attention because optimizing all VoIP applications on location-reporting-in-legacy-ways would be destructive to innovation, destructive to privacy, and extremely helpful to the incumbents who control the legacy 911 system.  It's always going to be easier to "phone home" to an old-fashioned system when you haven't left home in the first place - when you're an application that is tightly tied to the existing phone network.  A large swath of VoIP services would be effectively wiped out.  As I've argued in the past, this also cuts off all kinds of interesting, richer ways to allow competing providers to connect users to emergency services with better data.

What would Walter Pater do?  He'd write something beautiful about the human spirit.  That won't help us here, unfortunately.  We've got a Commission that seems to be interested in forcing online services into old regulatory bottles, all in the name of public safety.  There are some excellent CDT comments here from May 2007.  If you're interested, take a look.

Last Friday I was thinking about nostalgic, virtual time zones.  I'm pleased to report that although next week I'm moving (for the term) to Ann Arbor, Michigan, it's the same time there that it is in New York and Washington.  So don't think that I'm a few hours ahead or behind -- I'll still be in the same relative position.  Plus, so much of communication is supposed to be asynchronous that it really shouldn't matter.  I'm looking forward to the move, but this was a good piece of time-news.

It looks as if the European Union is much further ahead of us than a mere 6-9 hours when it comes to separating transport from content.  (I'm not saying that everything that happens on the EU level is a good idea.  Take data retention, please.)  There was a recent piece in the Times about Viviane Reding's continuing crusade to effect change:

According to a person in Brussels who has direct knowledge of the plan, the European commissioner for telecommunications, Viviane Reding, wants to create a European Union agency called the European Telecom Market Authority, with power to override national regulators and pry open domestic markets.

One of the most potent weapons wielded by the agency, which would consist of the directors of 27 European national telecommunications agencies, would be the ability to force former monopolies to separate legally from their transmission networks to give competitors equal access.

This will be very, very hard, and perhaps impossible, to implement.  But regulation requiring openness, or unbundling, hasn't been enforceable.  (This happened to us here in the U.S. after passage of the 1996 Act.)  So why not try something else?  European carriers, predictably, think functional separation is a terrible idea.  European national regulators give slow treatment to Brussels-imposed rules. European consumers probably don't know or understand why this kind of separation would ultimately help them.  So it's a lonely crusade, but a forward-thinking, ahead-of-our-time approach.

===

Monday:  E911.  It goes with CALEA (plug for The Ambulance, The Squad Car, and The Internet), and the Commission is thinking about mandatory disclosure of here-I-am location.  All your devices will be informing on you, all the time.  Still feel fondly towards your phone?