In the Know -- May 3rd, 2007

Most recent activity:

May, 3, 2007

Issues: 
Copyright
Network Neutrality

A Public Knowledge Update

Contents:

PK and Friends Lead Effort For Open Wireless Internet

The Federal Communications Commission (FCC) is planning for an historic auction of spectrum, and Public Knowledge has had a big influence in shaping the policy for it. The spectrum to be auctioned next year is now used by television broadcasters, which means it travels distances well and goes through buildings and so would be a key factor in creating a competitor in the high-speed Internet market to telephone and cable companies.

In the beginning of April, PK, along with the Consumer Federation of America, Consumers Union, Free Press, Media Access Project (MAP) and New America Foundation, made a series of three filings with the Commission. In one we asked that the Commission set up bidding rules so that the big wireless companies can't use their bids as signaling devices to squeeze out other players. In effect, the auction is like a giant bridge game. Studies from MAP have found all sorts of games being played by the big players to eliminate competition. If the bidding is anonymous, then a Verizon, for example, wouldn't know what markets AT&T is after, or how to squeeze out a cable company.

We also asked for some of the spectrum to be sold wholesale, so that consumers would have a choice of providers in addition to the big wireless companies. Another name for this issue is "open access." We also suggested that any new broadband services be provided in a non-discriminatory way -- a wireless form of Net Neutrality.

After a rushed but fruitful round of meetings at the FCC, including one with Chairman Kevin Martin, the Commission voted to put out for public comment the issues we raised. The commissioners, including the chairman, were impressed with our presentations and arguments. Simply asking questions about an issue may not sound like a big deal, but it is. Had the Commission not put our issues in their notice, it would have been much harder to file something in support. We're all grateful to the FCC for the support, on an issue Gigi called a "legacy-defining moment" for Martin and this FCC.

The new spectrum won't be a cure-all for the lack of competition in the broadband market. But if our proposals are adopted, there is some hope for broader consumer choice and innovation supplied by other than the current service providers. Comments on the FCC's notice are due May 23.

Another proceeding at the Commission aimed at opening up the wireless market is a petition by Skype Communications. Skype wants to give cell phone users more freedom to buy the phones they want and to use more services, without being tied to specific telecom carriers -- just like wireline phone. PK, along with EDUCAUSE, Free Press, Media Access Project, New America Foundation and the U.S. Public Interest Research Group, filed comments with the Commission agreeing with the arguments in the Skype petition.

The FCC order is here:
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-72A1.doc

Ex Parte Comments of The Ad Hoc Public Interest Spectrum Coalition -- Auction Rules:
http://www.publicknowledge.org/node/897

Ex Parte Comments of The Ad Hoc Public Interest Spectrum Coalition -- Network Neutrality:
http://www.publicknowledge.org/node/898

Ex Parte Comments of The Ad Hoc Public Interest Spectrum Coalition -- Open Access:
http://www.publicknowledge.org/node/899

Gigi's post is here:
http://www.publicknowledge.org/node/919

You can read Harold Feld's blog post about the abuses of the auction processes here:
http://www.publicknowledge.org/node/917

Our filing in support of Skype is here:
http://www.publicknowledge.org/node/925

Net Neutrality on FCC Agenda

In contrast to the fact that the FCC is willing to listen to some market-opening arguments in the spectrum auction, their Notice of Inquiry on Net Neutrality appears to be more of an effort to close off debate.

The Notice, as we expected, asks for examples of discriminatory behavior by telephone companies that exist today. It also asks how the FCC's famously unenforceable Internet policy statement might be changed. Any argument for adding a non-discrimination principle as Commissioner Michael Copps has suggested would, in the FCC's construction of the issue, have to be based on current conditions.

The problem, as we have said repeatedly, is that the telephone and cable companies are on their best behavior now, with regard to the Internet service. With Net Neutrality legislation pending, they aren't about to do anything obvious, like degrading someone's service or playing favorites. Comments are due June 15 on the Notice.

Then again, there are some times in which the telephone companies can't help themselves from behaving badly. Verizon, for example, filed a patent infringement suit against Vonage that could shut the company down, although an appeals court is still considering the issue. The patent itself is, according to most commentators, very general, and the U.S. Supreme Court has thrown patent law itself into an uncertain situation with an opinion that advocates strengthening the standards for granting a patent.

AT&T and other companies, meanwhile, blocked calls from a call-conferencing service in a dispute over the payment of access charges. They relented after some informal talks with the FCC, but the action resulted in an anti-trust lawsuit being filed against the telephone companies for their actions.

In a related activity, the Commission put out a lengthy proposal asking how it could better collect broadband data. The Commission has been criticized far and wide for its statistics based on a "high-speed" standard of 200 kbps and for the fact that it counted an entire ZIP code as being served by that high speed if only one customer has it.

The Notice of Inquiry is here:
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-272365A1.doc

Art has a blog post on the Notice here:
http://www.publicknowledge.org/node/882

The data collection notice is here:
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-17A1.doc

Our law clerk Rashmi Rangnath explains the Supreme Court ruling:
http://www.publicknowledge.org/node/927

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h2 id="story3">Fashion and Patents Lead Legislative Agenda So Far

It's been a slow year for legislation so far in the telecom and IP sectors as the Democratic Congress gears up with lots of new members.

The first bill out of the gate is a major patent reform bill, HR 1908, by House Intellectual Property Subcommittee Chairman Howard Berman (D-CA). Berman has said he wants to make patents a top priority this year. His bill deals with patent infringement, first-to-file standards and related issues. Rashmi has a nice blog post on it, which got picked up around the Web.

The second bill is an old one from last year, which would allow copyright for fashion designs. As Tim Gunn, the former guru of the Project Runway TV show (currently working for Liz Claiborne) said last year, such a law would lead to lots of lawsuits. The sponsors who introduced it again this year (HR 2033) are Rep. Bill Delahunt (D-MA) and Bob Goodlatte (R-VA).

Rashmi's blog is here:
http://www.publicknowledge.org/blog/1558

The patent bill is here:
http://www.publicknowledge.org/pdf/hr1908-110-20070418.pdf

Alex's blog post on the fashion bill is here:
http://www.publicknowledge.org/node/921

The bill itself is here:
http://www.opencongress.org/bill/110-h2033/show

Its 2007, a time to look ahead. PK will have lots to do this year. We will have to fight hard to make certain that the Internet stays free and open, as the telephone companies try yet gain to gain control over it. We will have to continue to defend our victory in the broadcast flag case as the content industry will resume its campaign for control over digital media, whether in the broadcast flag or in other legislation that would institute technological mandates. We are geared up to take the offensive this year in Net Neutrality, in copyright and in patent reform. So, let's renew our request to you: Please support PK. Battling the well-funded telephone and cable companies isn't easy. Neither is going up against the full force of the movie, TV and recording industries. But we are dedicated to doing it, to preserve the openness and innovation we all treasure. Please help. There are many ways you can support PK here:

http://www.publicknowledge.org/support

We thank you for your support!

Briefly: We've spent a lot of time testifying on the proposed merger of XM Radio and Sirius Satellite Radio. Gigi's most recent appearance was before the Senate Commerce Committee, on April 27. That was her third time to testify on the issue. She also appeared before the Senate and House Judiciary Committees. Her testimony is here:
http://www.publicknowledge.org/node/911

Downloading a song isn't a performance, according to a recent court ruling. Sherwin explains it here:
http://www.publicknowledge.org/node/920

Finally, congrats to our friends at SavetheInternet.com (coordinated by Free Press) for winning two Webby awards -- one for the site and one for a Net Neutrality video. The site is www.savetheinternet.com, and the video is here:
http://www.youtube.com/watch?v=cWt0XUocViE

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