Items tagged "Network Neutrality"


Recusal of Commissioner McDowell

December 18, 2006 Blog Posts , FCC , Network Neutrality

FCC Commissioner Robert McDowell has announced he would recuse himself from the Commission's deliberations on the AT&T takeover of BellSouth. Gigi commends the decision with the following statement:

Commissioner McDowell should be commended for his thoughtful deliberation over what anyone would consider a very difficult decision. In the end, he was correct to recuse himself from the AT&T takeover of BellSouth. This is too important a transaction to be clouded by the ethical questions that would have come up had the Commissioner taken part in the proceeding. It is now up to Chairman Martin to negotiate a balanced set of terms and conditions with Commissioners Copps and Adelstein that will protect the public interest and the freedom of the Internet. We have every hope he will do so.

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PK WSJ Response Letter: ‘Notice and Take Down’ Lets Web Services Exist

December 15, 2006 Fair Use , Network Neutrality , Policy Blog

Earlier today, I noted our reply letter that the WSJ recently published. Since the WSJ online is subscription based access, here is the text of the letter:

'Notice and Take Down' Lets Web Services Exist

Your Dec. 1 editorial, "Google Search: 'Copyright'" missed crucial elements of the Digital Millennium Copyright Act (DMCA) and the concept of fair use when it comes to the posting of copyrighted material online.

The content industry fought very hard and largely won what it wanted in the DMCA. The trade-off for infringing content hosted by an unknowing service provider was essentially this: no liability for the service provider that expeditiously removes the infringing content after the copyright holder has been notified. This "notice and take down" provision allows most automated Web services like YouTube to exist. The take-down provisions effectively place the responsibility on copyright owners to actively identify infringement and notify the host services, all themselves. That's a fair trade considering they also have the weight of civil and criminal copyright law in their corner. It would be unworkable for YouTube or any other organization to have someone sit behind the curtain and approve every submission of copyright-able works.

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No Help From the General Counsel

December 11, 2006 Blog Posts , Network Neutrality

You've got to hand it to FCC General Counsel Sam Feder. His opinion that supposedly "clears" Commissioner Robert McDowell to participate in the AT&T takeover of BellSouth probably wasn't what Chairman Kevin Martin had in mind.

The idea of the exercise was to put pressure on McDowell to jump into, presumably on the side of AT&T, and force Commissioners Michael Copps and Jonathan Adelstein into a corner. Try as he might, Feder couldn't bring himself to make the air-tight case for McDowell's participation that Martin wanted.

In a news release we put on Friday night, we said Commissioner McDowell made the right decision to recuse himself in this proceeding, and Feder's opinion said nothing that should cause the Commissioner to change his view. The opinion made a tepid case at best for Commissioner McDowell to participate. Feder seemed to go out of his way to stress that it was McDowell's decision to participate. The Feder memo said it was a "very, very close call" whether McDowell should take part, and that reasonable parties could disagree on a decision.

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Things Have Changed

December 8, 2006 FCC , Network Neutrality , Policy Blog

Everyone asks me nowadays what it's like to be the head of a regulatory agency when Congress goes through a change of control from the party that put you in your job to the opposing party. Suffice it to say that things are very, very different. However, the parallels between 1994 and 2006 are not exact. The new Republican majority in 1994 wanted government not to exist — to the degree possible and they thought it was very possible. The current new majority wants government to be based in reality and to do its jobs well and transparently: that's a very different agenda. The Republican majority proved over time to use investigations and inquiries in an extraordinarily crude and frankly ugly manner; whether the new majority now makes that mistake is yet to be proved and as a Democrat I certainly hope that if centrism and moderation has any sway in Washington it will be seen in a moderate approach to the use of Congressional investigatory power.

In 1994 the new Republican majority almost instantly created a coterie of advisers that was quite limited in its reach and ideological in its orientation. At the same time, many on the Hill were utterly dismissive of the competence of regulatory agencies. The new majority now should learn from this experience to build a big tent and to oblige agencies to be smart, not insult them by acting as if they were foredoomed to dumbness.

From the agencies' perspective, the most important learning of the 1994 changeover was that everyone had to fight political fights out in the open, making clear what might have been left merely assumed, making cogent cases that previously were regarded as closed. It was necessary to put speeches on line, hold forums, conduct debates, expand openness, state agendas, and develop goals. To this end, the FCC in those hoary and/or halcyon days put on line a white paper at year end that stated the full agenda for the coming year. Perhaps an idea worth replicating?

No one expects the White House or its appointees to change colors. Chameleons are not demanded. However, listening is newly important. Debating is newly important. The FCC in particular has very smart, very well-prepared commissioners on both sides of the aisle. Indeed, this is probably the most highly qualified commission as a group that has ever sat at the FCC. If everyone is open and above-board in discussing all important and many relatively unimportant issues, the change in Congress will prove to catalyze wise decisions, necessary action, and an elevation of the art of government.

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Ma Bell, May I?

December 8, 2006 Blog Posts , Network Neutrality

A couple of posts ago, we talked about how FCC Commissioner Robert McDowell is being pressured to "unrecuse" himself in the AT&T takeover of BellSouth. Now Chairman Kevin Martin has taken the next step, getting outside permission. [Update: Feder's eight-page ruling came out Friday night. No surprise. It says McDowell can participate, but it's a close call.]

This move is yet another step to try to draw the analogy to case in which then-FCC Chairman William Kennard reversed a recusal to participate in a case in 2000. He noted in a statement that parties which would be most likely to question whether he would be impartial have said he could participate in a proceeding to lift rules on broadcasters dealing with personal attacks and political editorials.

Now we see a letter to FCC General Counsel Sam Feder from AT&T and BellSouth saying they have no objections if McDowell participates in the merger process. What's worth noting when you read is is that it was the FCC that asked for the views of the company.

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A Not-So-Merry Christmas for the FCC

December 6, 2006 Blog Posts , Network Neutrality

It took a little while to brush off the rust, but now it looks as if Congressional Democrats are warming to the task of reclaiming the majority. Federal Communications Commission Chairman Kevin Martin can't be happy. Perhaps he should do lunch with former Chairman Reed Hundt, just to get some idea of how to deal with a Congress turned hostile in mid-term. Hundt had that experience while serving as President Clinton's FCC chairman at the time of the Republican takeover of Congress in the 1994 elections.

To be fair, of course, even when Democrats were in control of Congress with a Democrat in the White House, they still tended to be hard on the Commission. Back then, Congress had more of a sense as an independent branch of government, rather than as a member of the team.

The FCC has had a fairly easy ride for the past few years. As this collection of letters from Congress indicates, that's over. The incoming chairmen of the Senate Commerce Committee and House Commerce Committee sent letters to the FCC protesting the attempt to "unrecuse" Comr. Robert McDowell from the AT&T takeover of BellSouth, as did Rep. Mike Doyle (D-PA), a Telecom Subcommittee member. Rep. Ed Markey (D-MA) issued a statement earlier.

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The Unrecusal of Commissioner McDowell

December 4, 2006 Blog Posts , Network Neutrality

The unseemly political pressure to try to force FCC Commissioner Robert McDowell to participate in the AT&T takeover of BellSouth is increasing with each hour. So far, McDowell has stuck to his decision not to participate because he recently represented CompTel before the Commission and because of ethics concerns from the Virginia Bar Association.

FCC Chairman Kevin Martin has sent a letter to Capitol Hill saying he's asked the General Counsel, Sam Feder, to determine whether it's possible for McDowell to participate, citing a 2000 precedent of then-Chairman Kennard having been authorized to break a 2-2 tie. AT&T sent a letter to the Commission saying that competitors are holding up the merger despite all that AT&T has been willing to concede. These two items, both dated Dec. 1, are of course related. Martin wants the merger, as does AT&T. They are also related in that each makes claims that don't hold up under further scrutiny.

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Net Neutrality Not A Sure Thing

November 29, 2006 Blog Posts , Network Neutrality

(Note: A version of this story appeared at

It's getting down to the end of this Congressional session, and any number of commentators are bemoaning the fact that telecom legislation has been stuffed, in large part, due to the opposition of those favoring Net Neutrality.

That's fine. The bills that were up for consideration this year had some good things, but tremendous flaws as well, and shouldn't have been considered in a hurry. At the same time, though, we shouldn't rush to any conclusions about how the issue will play out next year, when the Democrats take over Congress. Some people are saying the Bell companies won't want to pursue telecom legislation because they will work through the states to get what they want. Others are saying that Net Neutrality, the idea that telephone and cable companies can't make special deals to favor transmission of some content over other content, will have a great chance next year with the Democrats in charge.

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Program Access and Net Neutrality — An Amicable Solution?

November 16, 2006 Future of Video , Network Neutrality

In the past, we have said that a model for Net Neutrality regulation could be the program-access rules, which guarantee access to most of the content on cable systems.

The notion came up last spring, when Verizon, opponent of Net Neutrality, filed a complaint against Cablevision with the FCC, over access to programming Verizon wanted for its fiber network.

When the complaint was filed last March, we noted at the time: "Verizon's complaint demonstrates that a properly tailored government rule (whether program access or net neutrality) can promote competition and restrain the abuse of market power."

Today, we have more proof of that.

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The Series of Tubes Seen from Different Ends

November 9, 2006 Blog Posts , Network Neutrality

The Internet is about diversity, and in the last couple of days, I've been from one end of the Net to the other. In the beginning of the week, I was part of a program for an association of small, rural telephone companies. At the end of the week, I was at a conference to explore the meaning of Web 2.0, the shorthand for an Internet made richer by content created by users, which in turn makes other content and products more valuable.

In Phoenix, the Western Telecommunications Association (WTA) held its "Bootcamp" conference on the basic issues that need to be addressed by the rural telephone companies. Their world is a traditional, regulated telecom world. It is built around the subsidies known as the Universal Service Fund (USF), the system by which telephone companies with lower costs, generally in urban areas, help to cover the costs for companies in rural areas with higher costs to serve customers.

The WTA perceives a threat to its USF support, and has started a campaign called "Keep America Connected," to persuade lawmakers and the Federal Communications Commission (FCC) not only of the value of their service, but to keep the support flowing. They are afraid that the universal service "reforms" talked about in Congress and the FCC will hurt, rather than help them. They are acutely aware that some rural Republicans, like Rep. Joe Barton (R-Tex.) and Sen. Jim DeMint (R-SC), are their worst enemies on USF issues.

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