Posts by Susan Crawford

We won’t defer when you’re wrong

FCC

When should a court defer to an agency’s interpretation of its governing statute and/or its own regulatory actions?

I got interested in this question because deference by a flummoxed Supreme Court gave us Brand X, with its ahistorical “this looks really tricky so we’ll let the FCC categorize highspeed internet access” approach.

In this week’s Third Circuit opinion about the Janet Jackson Super Bowl incident, the court doesn’t defer much.

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BT and Ofcom

About 16 months ago, I heard Ed Richards of Ofcom speak at a CITI conference at Columbia, and blogged about it here. I remember thinking that Richards didn’t seem to think that highspeed access to the internet was all that important. The market had to demand it, and the market wasn’t being demanding. Also, he wasn’t interested in government intervention to support highspeed access.

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Battling over clouds

More than 40 years ago, the FCC was worried about telephone companies using their power over communications to control the then-nascent (and competitive) data processing marketplace. The Bell System at that point was already banned from providing services that weren't common carriage communications services (or "incidental to" those communications services).

In Computer 1, the Commission tried to distinguish the use of computers for processing information from the use of computers as part of communications, with the goal of not allowing the Bell System into the data processing business.

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Bit caps, consolidation, and Clearwire

The news that Comcast, Time Warner, and AT&T are all considering capping use of their networks -- so that "overuse" would trigger a charge -- has prompted intense discussion of just why these network operators are moving in this direction. One camp suggests that these operators have to do something to manage congestion, and because any protocol-specific discrimination plan raises howls of protest from the Net Neutrality side of the fence adopting bit-usage discrimination schemes is inevitable. It's the least-bad approach, following this view.

The Net Neutrality side, for its part, points out that (1) each of us will fall into the 5% of "over-users" at some point or another, (2) the operators want to make sure that they remain the chief sources of video content, rather than allowing internet access to video undermine their business plans, and (3) it seems odd to manage to scarcity rather than invest in improved access for everyone. It's as if the operators would prefer to keep internet access expectations at 2003 levels. And if you really wanted to manage congestion you'd charge differently for usage at different times. (Meanwhile, Korea.)

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Hitting the nails on the head in Canada

In The Deal of the Century, the 1987 classic account by Steve Coll of the breakup of the Bell System, one of the Bell local operating company presidents (pre-breakup) is furious about MCI's attempts to build microwave private lines for companies. Here he is, arguing to the AT&T chairman that MCI has to be stopped:

There are large amounts of revenues that are vulnerable, which we can preserve if we choke off now. I think you have to hit the nails on the head.

The AT&T Chairman, John deButts, eventually follows his advice - and when MCI comes to AT&T asking for interconnection agreements in major cities so that it can sell private line services, AT&T delays, avoids, and then directly challenges MCI. Coll says deButts "call[ed] for nothing less than a public anointment of Ma Bell's right to exercise its monopoly in the national interest" in this speech:

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Tying, subsidizing, and IMS

In response to my post a couple of days ago about the possibility that VZ might not plan to comply with the 700 MHz "open platform" rules, someone wrote:

would you have the FCC mandate that every mobile device must be capable of running every operating system? If Verizon sells me a BlackBerry, should the device allow me to install Android, Palm OS, Windows Mobile, or Symbian OS? Obviously, Google believes the answer is yes (they will make the most money if they can install their OS on every device). Is it good for consumers if the FCC starts managing software specifications for computers and mobile devices?

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700 MHz Update: Will VZ comply with the rules?

Last Friday (HT: IPDemocracy), Google filed a petition [PDF] asking that the Commission ensure that Verizon understands what those "open platform" requirements for the C Block really mean. Verizon has taken the position in the past that its own devices won't be subject to the "open applications" and "open handsets" requirements of the C Block rules, and Google says it is concerned that Verizon doesn't plan to follow those requirements in the future.

This is big. Here's the background.

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Retrograde inversion

Going backwards upside down. That's what we're doing with telecommunications policy in the U.S.

The Comcast affair should prompt a re-examination of many decisions the FCC, Congress, and the courts have made over the last few years. When the FCC reports on its reactions to Comcast's activities, the right response will be "You're asking the wrong question."

"What is reasonable network management" isn't the question we should be asking. Instead, we should be asking ourselves "Why do the dominant network operators always win?" We don't need retrospective fault-allocation - instead, we need a prospective legislative/structural plan for digging ourselves out of the hole we're in.

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Comparative internet law

Alan Davidson visited Yale Law School today, speaking to my Internet Law class and to a large lunchtime group. Key takeaway for me: the center of gravity of internet policy is not so much in Washington any more. Discussions of Issues like ISP filtering and data retention are taking place in Europe with enormous energy. There things we might take for granted here -- like avoiding online content regulation, or the undesirability of using ISPs as private police -- are actively considered.

At the same time, Alan points out, architectural constraints that we also used to take for granted, like "it's too difficult to look at the packets that are crossing our networks," or "we can't know with any reliability where people are coming from who visit our sites" are melting away.

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Weird boxes

With the help of one of my colleagues, I've been going through the history of the Computer Inquiries and all of the regulatory muttering that goes into the "information services"/"telecommunications services" dichotomy.

What a strange story of subversion.

We started off, back in the 60s, with a real fear of dominant telephone companies manuvering/leveraging their way into data processing businesses. So we (basically) cordoned off data processing as a separate business and kept the telcos out.

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Needed: Votes

I’m at the Tech Policy Summit. There was a particularly good panel yesterday that included Tod Cohen and Ken Kay talking about what it takes to do effective policy work. Tod’s quite blunt: “Do you vote?” That’s the question he asks people who want to do policy work with Ebay. You have to love politics, he says, to be in this business. It’s all about incremental advances and relationship-building.

Without votes, nothing happens. Just being smart or persistent won’t make any difference.

It’s sobering. Who has votes for an open internet?

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Why Block C matters

Today the FCC announced the winners of the 700 MHz auction - and you can see from pp. 62-63 of this document that Verizon won Block C. (Block C was set up in two nationwide paired blocks of 11 MHz each, which were auctioned off in very large geographic areas—12 licenses, each covering a “Regional Economic Area Grouping”. Verizon won seven of the twelve licenses, covering all of the US except Alaska, Puerto Rico, American Samoa, Guam, and the Northern Mariana Islands.)

Why does this matter?

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Thursday links

The House Commerce committee investigation of the FCC continues. According to the Washington Post, a detailed letter signed by Rep. Dingell has gone out to the FCC asking for a host of documents that (among other things) relate to “management practices that may adversely affect the Commission’s ability both to discharge effectively its statutory duties and to guard against waste, fraud, and abuse.” This is serious - business as usual at the Commission must be under severe pressure, and the idea of real structural reform of the Commission (and perhaps a new telecommunications act) can now be talked about with some confidence. This won’t happen now, but it could be happening a year from now.

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The rock star, the Christian Coalition, and NN

Yesterday’s House Judiciary hearing (witness statements and archived video here) had a deeply political angle - what committee should have jurisdiction over network neutrality issues - but also revealed to me that:

We’re seeing the moment when Hollywood, law enforcement, and the network access providers publicly attempt to join hands in favor of monitored/monetized network access.

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Meta moment

I did a short segment on NPR’s Bryant Park Project with Rachel Martin this morning - for broadcast tomorrow, Tuesday. The plan had been to talk about the Cuba OFAC story from last week. But when I got there they had switched gears - they really wanted to talk about net neutrality instead.

So we did an interview about everything. We talked about registrars freezing web site registrations at the direction of the Treasury Department, about a judge knocking Wikileaks off the internet, and about network access providers filtering/managing internet access. All in about eight minutes.

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Raising the stakes

The first panel discussion during Monday’s FCC hearing in Cambridge provided a useful summary of the first stages of what will be/already is a much bigger battle.

I think it would be a good idea to raise the stakes in this discussion. Even the most pro-public interest of the five commissioners, Cmmr. Copps, talks only about a case-by-case adjudication by the FCC of the “rules of the road” for “reasonable network management.” But that won’t get us faster, more open high-speed internet access. Commr. Adelstein makes more headway - he’s suggesting that we need to explore a “comprehensive solution” for this issue. Commr. McDowell, by contrast, slides way way back, saying internet access is (to him) “new media” that is mostly made up of people passively watching video. Even Vuze asks only for better disclosures of network management practices.

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The European super-agency

I personally have been cheering in support of Viviane Reding’s proposed plans to set up a Europe-wide oversight body and mandate functional separation of telecommunications providers. But it looks as if national regulators in Europe are fiercely fighting back. This Reuters article suggests that Ofcom and others are opposed to a pan-Europe regulator on the ground that such a body would be a top-down, single-answer entity. Ofcom’s Ed Richards also points out that functional separation (well, for DSL, not fiber) has been achieved in the UK without a Europe-wide mandate.

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More filtering and blocking in more places

As the FCC convenes its hearing today in Cambridge to address Comcast’s degradation of BitTorrent packets, two other blocking/filtering stories are playing out.

First, the Pakistan government (probably nudged by President Musharraf, who heard that some YouTube videos are critical of him) ordered that YouTube be blocked. An over-zealous ISP owned by the state sent out a redirect for YouTube’s IP address to some other more suitable site. But that redirect was somehow propagated all over the world - removing YouTube from view for everyone.

Second, the infamous Clean Feed approach is under attack. A Finnish programmer published the government’s domain blacklist in order to prove that the system is being abused.

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700 MHz C block reserve price met

This is big - Blair Levin’s Stifel Nicolaus report is saying that the reserve price of $4.6 billion has been met for the C Block.

For the upper band C Block, the FCC mandated that any winning licensee have in place “no locking” and “no blocking” provisions conditioning its use of this spectrum:

Licensees offering service on spectrum subject to this section shall not deny, limit, or restrict the ability of their customers to use the devices and applications of their choice on the licensee’s C Block network, except:
(1) Insofar as such use would not be compliant with published technical standards reasonably necessary for the management or protection of the licensee’s network, or
(2) As required to comply with statute or applicable government regulation.

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Three developments

1. More passive content from network providers. Comcast announced that it’s going to be providing 3,000 high-definition video-on-demand programs for subscribers to its highspeed Internet access services.

“Comcast is the largest purchaser of TV content and now we are bringing that content over to the Internet” [Comcast CEO Brian Roberts, at CES today]

Comcast is also confidently predicting that the PC will become “a full cable TV client” in the future. Dirk van der Woude pointed me to a Wall Street analyst, Douglas McIntyre, who doesn’t think Comcast’s plan makes any sense.

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Newspapers, washing machines, and the internet

An NPR story yesterday captured some pungent words from soon-to-go-through-the-revolving-door Senator Trent Lott. He was commenting in disbelief about the FCC move to permit more consolidation of media companies. He said (paraphrasing):

Newspapers? Why is the FCC protecting newspapers? I don’t get why we’re crying crocodile tears over newspapers. . . It’s technology that’s affecting newspapers. Where I live [on the Gulf Coast of Mississippi], we use newspapers to wrap mullet.

Putting aside the fishwrap reference (oddly reminiscent of the fate of some Bach manuscripts), let’s just note the incredulity with which Sen. Lott approaches the idea that the FCC is out there regulating newspaper mergers.

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Giving way to the web world

Congratulations to Public Knowledge for leading the way (gathering together Consumer Federation of America, Consumers Union, EDUCAUSE, Free Press, Media Access Project and U.S. PIRG) and asking the question: Why should wireless carriers be permitted to discriminate in their allocation of short codes? Their filing is here.

It’s a clever piece of work, this filing, saying, in effect, “We think that short codes (and provision of text messaging services generally) should be treated as Title II, common carriage, services. But even if they’re not, you can apply the nondiscrimination obligations of Title II through your Title I authority.” (The filing also explains what short codes are; they’re handed out, essentially, by the wireless carriers’ trade association.)

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Snapshot

It’s an inflection point, a phase change of sorts, that we’re going through in internet policy. Chronic disappointment is settling in, and it shouldn’t.

Ten years ago no one would have dreamed that telcos would be free to legally filter, degrade, and block internet access in late 2007, or that Europe would be taking the lead in global internet policy - with the aim of permitting/requiring even more filtering, degrading, and blocking. That’s where we are now. We can’t allow this state of affairs to become the new normal.

This dim set of expectations, this new normal, is created through new laws, new institutions, and new asymmetries of information. (This trio has come around before.)

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Don’t forget the Skype petition

Back in February 2007, when we were all much younger, before anyone could have imagined that Google and Verizon would be battling each other over just how “open” they wanted the internet to be…Skype filed a petition [pdf] with the FCC.

This petition became a proceeding with a number (RM-11361). (To look at everything filed under the proceeding, go to www.fcc.gov, go to “search” on the upper right, go to “Search for Filed Comments - EFCS,” and fill in the top “Proceeding” box with RM-11361.)

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Comcast and “network management”

EFF’s recent report on the Comcast Affair [pdf] is worth paying attention to. It’s a thoughtful and easy-to-understand exploration of Comcast’s injection of “reset” packets into online communications. (I wrote briefly about this here.) EFF is also letting us know how we can see packet spoofing for ourselves - here.

There are three myths that EFF pays particular attention to - ways of explaining Comcast’s activity that have been themselves injected into the public discussion of this issue in order to smooth things over.

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Verizon and Google

It was pointed out to me today that, notwithstanding all the good-vibes PR over the last few days, (1) Verizon will still be selling crippled-but-subsidized phones in its retail outlets (so who will choose an open device?) and (2) Verizon will still be able to charge content providers/application providers differential fees for use of its wireless network. Given these points, it’s hard to get too excited about the Verizon announcement, which was really designed as…

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The self-regulatory two-step

Self-regulation is a great move to forestall legislation. “Here,” you can say, “we’ve solved your problem. We don’t have all the details yet, but we’re making progress. Don’t try to write rules for this markeplace - you’ll just make mistakes and embarrass yourself. Let us help consumers by doing it ourselves.”

The second step of this particular dance is enforcement - in the form of results that real people can understand.

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Verizon Volte-face

So this morning my communications law class was earnestly discussing the 700 MHz auction rules when, suddenly, one of the students lifted his head from his screen and said, “Verizon just announced they’re opening everything up!”

(I’m always a fan of internet access in the classroom, and this gives me a good story to use with other teachers. “See, it’s useful, not just a distraction.”)

We immediately started discussing why Verizon is doing what it’s doing. And the context was clear, because it was the subject of the class: it’s the auction. The short form applications are due on Monday, and the rules for the C Block (limited as they are, see yesterday’s despairing post) require some form of openness to applications and devices. VZ probably doesn’t want to see Google win that C Block, so it will need to be in there acting open. So it might as well actually try some openness.

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The Auction, the Cops, and Comcast

The 700 MHz auction is just ahead. Bidders will soon be filing their applications, and the auction itself is supposed to start by Jan. 24.

This is the big event for telecommunications policy in the U.S. One recent online story says that “it’s almost like the powers-that-be decided to auction off the land in the Grand Canyon or Central Park in New York City.” It could affect the competitive landscape for U.S. wireless providers and change the way broadband reaches rural areas in this country.

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Unbridled discretion and prior restraint: the Verizon and Comcast stories

Let’s say that providing communications infrastructure is an inherent function of a state. Most people think of the internet as a telephone system, and most people think the telephone companies aren’t supposed to choose which calls will go through based on their content. People think that because they think internet access, like telephone access, is a utility — like electricity conduit, water pipes, etc. — that has something to do with the government, and the government isn’t supposed to discriminate.

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Boundaries

FCC

It’s the ad hoc nature of U.S. communications law these days that gets depressing. It seems only federal courts can help - except when they refuse to get involved.

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A Europe-wide FCC?

FCC

According to this AP story, the European Commission is going to suggest that a pan-European body should have the power to decouple large telecommunications transport companies from control over internet access. They’re calling this a “functional separation” plan, under which telecommunications platforms would be opened to competitive providers under pressure from national regulators (who themselves would be under pressure from this new body).

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Making the wireless world more web-friendly

Your wireless carrier (in the U.S., probably AT&T or Verizon Wireless) has a lot of control over the handset you can use and the applications that can run on that device. In fact, wireless carriers routinely ask for (and get) an enormous slice of the revenue from applications that work on their networks, and they force handset manufacturers to jump through all kinds of hoops in order to be allowed to sell devices that can connect to these networks. (You can’t, usually, buy devices except through the wireless carrier itself.)

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Monetizing disorder

Remember Sitefinder? I still have my notes from a session four years ago that was led by Steve Crocker. VeriSign (the registry operator for .com and .net) introduced a change in the way .com/.net operated. A misstyped domain would return the address of a host that was one of VeriSign’s own instead of an error message. There was considerable pushback from the community. VeriSign quickly suspended the service.

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This week in the white spaces

1. Very large Houses of Worship urge the Commission not to allow unlicensed use of the white spaces. They point out that they have sophisticated systems:

Many houses have footprints larger than multiple football fields and hold pew-seating for worshipers in the thousands. Typical facilities may include a large stage for the pastor, and stages to accommodate hundred-person choirs, full orchestras, praise teams, a praise band, and complex sound systems. Our experienced technical staffs devote considerable time and effort in planning to ensure highquality productions including interference-free wireless microphone operation.

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Economic growth and internet access

I’m on my usual hunt for economic growth citations. Two recent useful ones:

1. UK Competitiveness Minister Stephen Timms says that the UK needs a fiber plan:

“Effective use of technology enables economic growth,” . . . . “We have hardly any fibre-to-home connections. As far as I’m aware, we have none. There are 900,000 in the US and eight million in Japan. We’re not suffering yet, but communications applications with higher [bandwidth] needs are not far behind. We need timely take-up.”

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Three Updates

Three stories moved forward today:

1. Verizon dropped its legal challenge to the 700 MHz auction rules. I have a feeling they’ve decided that there are ways to work around [link to post giving work-around clues] the no-locking, no-blocking conditions that the FCC established. Plus VZ doesn’t want to be the bad guy, charged by Congress with delaying the auction. They’ve got bigger problems on their hands given the NARAL flap and the fact that…

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Interfaces

You may remember that in March 2006, when the FCC had only four commissioners, a Verizon petition to have all common-carriage-type requirements lifted from its relationships with businesses was “deemed granted” by the Commission’s silence — split 2-2, the Commission said nothing by the deadline for action on that petition. This non-action was part of a steady, incremental removal of rules from highspeed access in the U.S. that is still going on.

There were a couple of news items recently that relate to this subject. First, the D.C. Circuit today heard argument on a challenge to the notion that “deemed granted” could be the end of the story. According to Blair Levin and his team (sorry, no link), the panel seemed skeptical that silence meant denial of the petition. But the judges also weren’t sure how to review a record of silence, and may send the thing back to the Commission for something a little noisier.

Also, AT&T’s petition for “forbearance” from common carriage obligations for many of its business relationships (excusing AT&T from having to state what its fees will be for internet access services provided to businesses, and avoiding rate of return regulation generally for these relationships), was largely granted by the Commission last week. This forbearance applies to most of the services AT&T offers to businesses, including its very-high-capacity “OCn” (optical carrier lines, involving thousands of voice grade equivalents) fiber-optic interoffice transport connections, packetized broadband, Frame Relay services, ATM services, LAN services, Ethernet-based services, video transmission services, and wave-based services, but not traditional DS1 and DS3 special-access circuits.

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Wikimania

The conference of the week is Wikimania, going on right now at Harvard Law School.

Wikipedia is a great example of why the policy issues that Public Knowledge focuses on are important.

Wikipedia is in a pretty primitive stages of development -- who knows what it will become?

But as everything moves towards video across high-speed broadband connections, and as Wikipedia becomes video/experts/edited authority, even something as home-grown and non-proprietary as Wikipedia might suddenly be perceived as a threat to network providers -- so it's important that network providers not have the ability to be gatekeepers.

And so that Wikipedia authors can morph and edit video and audio files available across the net, it's important that the devices they use not be crippled by technical mandates imposed by Congress.

Wikipedia is today's collective darling -- and Public Knowledge is working to make sure that tomorrow's innovations aren't stifled.

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CALEA challenge

CDT, EFF, the Media Access Project, Sun, and Pulver.com have asked the judges on the D.C. Circuit Court of Appeals to all sit together to reconsider the June 9 opinion upholding the FCC's creative interpretation of CALEA.

In order for such a reconsideration request to be granted, the petition has to concern a "question of exceptional importance."  That's certainly present here -- the D.C. Circuit's June ruling allowing the FBI to serve as a gatekeeper for online applications doesn't fit with the statute and poses enormous threats to innovation.

Remember, everyone has to comply with lawful wiretapping/interception requests.  Compliance is not the issue here.  The additional cost-shifting burden imposed by CALEA is to require that things be built so that they are easily tappable by law enforcement. 

In 1994, Congress unquestionably exempted the internet (both access to the internet and applications used online) from CALEA obligations.  (That's why there's an awful CALEA rewrite in circulation now -- DOJ wants to change the law.)  Even though the statutory language is clear, the FCC decided to interpret the statute to include elements that had specifically been left out by Congress.

The FCC did this by saying that the statute was ambiguous -- when it isn't -- and by arguing that because "interconnected VoIP" services are "replacements for a substantial portion" of traditional telephone services they must be covered by CALEA.

Their position was/is specious, in my view, because CALEA specfically excludes "information services."  And "information services" include internet access and online applications.

But backing up the frame from the statutory arguments (which the petition admirably presents in visual/analogy form several times) reveals a crucial and enormous legal issue.  Congress hasn't expressly delegated power to the FCC to "regulate the internet."  Who gets to do this "regulation" is very important to the future of this country.  In the absence of an express delegation, no deference to the agency's views is required.  The D.C. Circuit is the group we depend on to rein in the Commission when it gets adventurous -- or succumbs to pressure.

The FCC is far from independent of the wishes of the Executive Branch, particularly when it comes to national security and law enforcement desires.  Incrementally, in a thousand definitional nuances and statutory-creep extensions, the Commission is becoming the de facto internet regulator.  Surely we'd want to have told them to do this; surely we would have thought through the consequences of such a step.  Because we haven't, it would be wrong for a court to defer to what they have to say when it comes to the regulation of the internet.  Particularly when it comes to getting FBI guys involved in designing new online applications.

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