Paramount COO Shows FCC How To File Share, Blames Tech Companies, Has FCC Hide Its Presentation

from the funny-how-that-works dept

Last week, the FCC held what was ostensibly a panel discussion about the National Broadband Plan, but which was actually focused on copyright issues. How, exactly, is copyright an issue for broadband? Well, mainly because the entertainment industry has been trying for years to get ISPs to act as copyright cops... and apparently the FCC felt the need to hear them out. While the deck was mostly stacked in favor of the entertainment industry in terms of speakers, thankfully the FCC allowed Gigi Sohn of Public Knowledge to take part as well -- and she questioned whether the FCC even had any mandate over such issues and wondered why the hearing was even being held. However, beyond stacking the deck of speakers, it appears the FCC gave significant other beneficial treatment to entertainment industry speakers.

Paramount's COO, Frederick Huntsberry, not only was given twice the amount of time to speak as the rest of the speakers had (10 minutes, instead of five, as Gigi was told), but also was able to convince the FCC that his talk was "owned" by Paramount, and should not be placed online -- as the FCC has done with all its other hearings. Wow. Yes, this was a public government hearing. Thankfully, the folks at Public Knowledge went through a low quality video of the whole proceeding and pulled out Huntsberry's part, where he not only demonstrates how file sharing works for the FCC, but goes on to implicate plenty of companies as aiding in the process, including Google, Yahoo, eBay, Boxee and others:

In the video, he demonstrates using Mininova and Drop.io (which is an amazingly useful site for many things that have absolutely nothing to do with unauthorized file sharing -- and is now being unfairly tarred by Paramount). There isn't really anything surprising in the video. He basically shows what everyone knows: it's easy to share files these days. But he seems to miss the point of that. That is, he wants the gov't to come in and try to stop this (an impossibility), rather than recognizing that it's time for him to shift his business model. Yes, distribution is cheap and easy these days. In most businesses when distribution becomes cheaper and easier, that's a good thing. Why is it that Hollywood top execs still can't figure out how to take advantage of it?

Mehan Jayasuriya points out the many problems with the way the FCC handled this whole event:

• Any presentation delivered at a public government hearing should be made available to the general public in a convenient format. Not everyone is able to travel to Washington D.C. for hearings and those who cannot should not be excluded--rather, they should be encouraged to participate in the debate. The mission statement on the Commission's new Broadband.gov site seems to agree: "A great way to create a connected America is to involve all Americans in the development of a National Broadband Plan. The FCC welcomes civic participation, and we look forward to more interaction through this website." If Paramount was concerned that its video would encourage "piracy," then the company should not have presented it at a public hearing. It's as simple as that.
• All of the other presentation materials for all of the other workshops are available on the FCC's website, so that citizens can download, read, comment on, reference and critique them. Why should Paramount's statement be treated any differently?
• During the presentation, Huntsberry seems to suggest that a number of legitimate technology companies, including Drop.io, Twitter, Google, Facebook, Apple, Boxee, Sony, LG, Yahoo!, PayPal and Rapidshare, are arguably acting to enable or encourage unlawful filesharing. These companies and the users of their products should have an opportunity to respond to this allegation.
• In the beginning of the clip, Huntsberry walks us through a timeline of when various camcorded copies of Star Trek were leaked to the Internet. This timeline provides a great example of how widespread the problem of camcording is, though it's worth noting that camcording is already illegal in most U.S. States and has little relevance in the context of this workshop (it's also worth noting that Star Trek made over $200 million at the box office regardless of the fact that camcorded copies were available within hours of its theatrical release). This evidence that films are commonly pirated while still in theaters undermines many of the arguments made by the studios in the FCC's Selectable Output Control proceeding (i.e. "We need to be granted the power to shut off outputs on the back of your A/V gear, otherwise you will unlawfully copy the films that we broadcast via cable").

Not only did the FCC treat Paramount's presentation with kid gloves, the agency also treated the Hollywood execs preferentially throughout the course of the workshop. Upon entering the room where the workshop was held, attendees were greeted by a massive vinyl banner--presumably belonging to Paramount--on which the aforementioned Star Trek timeline was printed. While I appreciate the fact that a visual aid can be helpful, I can't help but feel like a PDF file submitted to the record would have sufficed.

But that's not all. Though these workshops were technically less procedural in nature than a formal hearing would be, MPAA Chairman and CEO Dan Glickman was repeatedly allowed to call his technical expert, MovieLabs CEO Steve Weinstein, up to the stand to chime in with additional comments--even though nothing he said was actually technical in nature. The Commission allowed Glickman to do this so many times that Weinstein also started calling others from the audience up to the stand, including Disney Executive Vice President Preston Padden and Disney Vice President Troy D. Dow. Perhaps I'm being overly cynical but I doubt that the Commission would have allowed any of the other panelists to engage in this kind of behavior.

And, again, uh.... what does copyright have to do with broadband policy in the first place? And where is it in the FCC's mandate that it has any say in copyright policy?

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FCC To Study Single Rating System For Movies, Video Games, TV & Music

from the under-what-mandate? dept

GamePolitics reports that the FCC is planning to study the idea of a "universal rating system" for all kinds of media, including movies, music, video games and television. According to the Bloomberg article on this, the FCC actually has a mandate to do this under a 2007 law that gave it authority to explore blocking technologies, though that seems to go well beyond the official mandate of the FCC to only monitor communications using public infrastructure. Furthermore, every single attempt to put in place a gov't mandated solution for a ratings system has been struck down as unconstitutional (and a bunch have been tried). Every rating system you see now are voluntary agreements from the industry. Having the FCC even explore such an issue raises some serious constitutional questions.

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This Doesn't Bode Well: FCC Can't Figure Out Online Streaming For Its Own Meetings

from the and-they-want-to-regulate-stuff? dept

If there were any gov't body that you would hope would have a handle on basic things like online streaming of video and audio, it would be the FCC, which is supposed to be regulating communications, right? But... that's not how the government works. During yesterday's meeting, in which it announced plans to investigate the wireless industry, apparently the online stream required the use of RealPlayer (welcome to 1999) and only allowed 200 simultaneous connections. Perhaps instead of investigating the wireless carriers, the FCC should investigate its own broadband connections and streaming setup.

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Apple's Google Voice Rejection Wakes Up A Dormant FCC; Investigation Begins

from the whoops dept

We've had a bunch of stories about Apple's rather arbitrary nature in rejecting iPhone apps it doesn't like -- including ones where it claims that they're not allowed because they compete with Apple. However, Apple's recent decision to reject Google's Voice application didn't just attract general public interest in Apple's policies, it appears to have awoken the latest crop of FCC bosses. Yes, the FCC has requested more info from Apple, AT&T and Google concerning Apple's rejection of the Google app. I wonder how the random Apple drone who made that decision is feeling right now?

Either way, this isn't good for anyone. The FCC's reasoning is that it:

"has a mission to foster a competitive wireless marketplace, protect and empower consumers, and promote innovation and investment."

That's actually a bit of a stretch on the FCC's actual mandate. And as ridiculous as I think Apple's actions are here, having the FCC get involved doesn't seem good for anyone either. The FCC shouldn't be involved in deciding what applications get put on phones. Apple's decision has angered a bunch of people, with some swearing off the iPhone because of it. In those cases, those people have other options and other phones to go to. The situation doesn't require the FCC to get involved. It should just require Apple coming to its senses and getting rid of its silly policy of outright rejections of apps it doesn't like.

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If You Have WiFi, a Cell Phone, Or Lots Of Other Things, The FCC Thinks It Can Search Your House

from the respect-my-authoritah dept

Part of the Federal Communications Commission's job is to regulate the airwaves, ensuring that radio devices don't unduly interfere with each other and turn the spectrum into a morass of noise. Generally this entails making sure that licensed radio and TV stations are staying within the frequencies they're assigned and within certain power levels, and also cracking down on people broadcasting in licensed frequencies without licenses. One tool in the FCC's investigative arsenal is the ability to inspect radio gear, like TV stations' transmitters, but the Commission also says that this extends to things like WiFi routers, cordless and cell phones, remote garage door openers, TV remotes, or "anything using RF energy." This means that if you have any of those products, or anything with a radio, the FCC thinks it has the right to search your house (via Boing Boing). The FCC contends the authority stems from the Communications Act of 1934, but as Threat Level points out, it's never been challenged in court, mainly because it's a relatively recent phenomenon for essentially every American household to have so many radio devices. While it's unlikely that the FCC will begin raiding homes to confiscate WiFi routers and garage door openers, there is speculation that should FCC agents enter a home and see evidence of unrelated criminal behavior, that evidence can be used for criminal prosecution. This could give law enforcement a potential back door around search and seizure laws, a move which certainly merits some concern.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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Why Does The CDC Have Better Data On Mobile Penetration Than The FCC?

from the that's-what-we-call-regulatory-capture dept

It's well known that the FCC has long had incredibly bogus data when it comes to broadband and mobile penetration in the US. In many cases, this is due to efforts from legacy providers who don't want accurate penetration info to get out there, because that might lead the government to realize how little actual competition there is in the market. Kevin Werbach points us to the fact that it appears that when people are interested in mobile phone penetration in the US, it's not the FCC who has the data, but the Center for Disease Control (CDC), who went out and collected their own damn data because it needed to know that data to make sure its phone surveys remained accurate. It's quite telling of the state of the FCC when it's the CDC that has better data about the industry the FCC regulates.

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FCC Says Not So Fast To TV Stations' Itchy Switch Fingers

from the not-completely-surprising dept

The digital TV transition mess rolls on. After lots of TV stations said they planned to move ahead with the shutdown of their analog broadcasts, as the recently passed delay allows them to do, the FCC is now telling more than a quarter of them they can't do so without first meeting a number of regulations. The FCC contends (PDF alert, thanks to Fat Tony for sending it in) that 123 stations' plans to switch their analog signals off soon pose "a significant risk of substantial public harm," not because people who haven't figured out the switch was coming will miss Judge Judy and Wheel of Fortune, but because they need their TVs for access to "local news and public affairs."

The regulations say that one station in the broadcasters' metro areas must maintain analog service until at least the middle of April, but also that the stations must increase their "educational" programming about the switchover, and also provide both "local or toll-free telephone assistance, including engineering support" and "provide a location and staff for a consumer 'walk-in' center to assist consumers with applying for coupons and obtaining converter boxes, to demonstrate how to install converter boxes, to provide maps and lists of communities that maybe affected by coverage issues, and to serve as a redistribution point for consumers who are willing to donate coupons, converter boxes, televisions and for those in need of these items."

If this didn't involve the government, it would almost be remarkable. The government botched the converter coupon program, has caused more confusion with the delay, and now wants TV stations to set up call centers and walk-in locations to deal with it. What's even more galling is that stations will be forced to toss resources at an issue that effects a small sliver of the population: take the small subset of Americans that watch TV, but don't have cable or satellite, then the subset of those that haven't yet gotten with the program. From those few people that are left standing, will they be any more ready in June than they would be on the 17th, when the switchover was supposed to happen? And why should broadcasters have to devote so many resources to them, particularly when it's the bungled coupon program that's largely to blame?

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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Hollywood Takes Another Crack At Getting Permission To Break Your DVR

from the they-just-won't-stop dept

The movie studios and the MPAA have been pushing hard over the last year to get the FCC to let them use "selectable output control" to basically block DVRs from recording certain broadcasts of movies. Their somewhat creative (but totally ridiculous) argument is that this would allow more consumer choice. Now, you might ask how limiting what consumers can do with products they already purchased can possibly allow more consumer choice, but this is where the MPAA tries to play a bit of a jedi mind trick. It claims that if it's allowed to block recording of movies, then it would add another window to its windowed release program of movies (i.e., theater -> special locations (airplanes/hotels) -> DVD -> cable TV -> network TV). If they can break your DVR, they claim that they'll also release it to TV before it's even out on DVD.

Now, it doesn't take much thought to see the logical flaw in the MPAA's plan, but since some politicians are a bit slow, we'll spell it out for them. You don't need to block recording to release the movies early. There's absolutely nothing stopping the MPAA from offering this "consumer choice" right now. The MPAA is simply trying to confuse politicians into thinking that they can't possibly add this other way to get paid for the same content without this DVR-breaking DRM. The simple fact is that (a) selectable output control won't stop the movies from being recorded by some and (b) it won't stop the movies from being offered in unauthorized format online. It won't do a damn thing to stop "piracy." But it will annoy an awful lot of people who bought a DVR to record what they see on TV and are seriously pissed off at why they can't actually make the product they bought work legally.

In other words, it's not at all about "expanded consumer choice." It's about giving the MPAA another way to block legitimate watchers from doing perfectly legal time shifting of the content on their TV.

The good news was that when Kevin Martin ran the FCC, he turned down the MPAA. Though we heard mixed reasons on why (one story is that he tried to do some "horse trading" whereby he would give the MPAA what it wanted if they would side with him on things like a la carte cable), it at least kept the MPAA down. Of course, with Martin gone, it hasn't taken long at all for the movie studios to rush right back up to the new FCC yammering on and on about "expanded consumer choices." Hopefully Michael Copps (the temporary FCC boss) and the rest of the FCC are smart enough to recognize that you don't expand consumer choice by breaking their DVRs.

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FCC Again Wants Details From Comcast On Its Traffic-Shaping Efforts

from the fool-me-once... dept

Comcast has already been slapped down -- well, slapped on the wrist, anyway -- by the FCC for violating Commission rules with its traffic-shaping efforts, and it could be on its way for a second rebuke. The FCC has asked Comcast for some more details on its newest "congestion management" system, which throttles heavy users' speeds for periods of time. As part of the penalty for its previous infraction, Comcast had to file details of the new system with the FCC, and the commission know wants to know if Comcast treats traffic from its own VoIP system differently than traffic from competing providers' VoIP services. The company apparently advertises the fact that its VoIP service doesn't get affected by heavy network traffic and slowdowns, giving the impression that it degrades other VoIP traffic in this new system, while leaving traffic from its service alone. This will be an interesting test of the new FCC administration, to see how it handles these sorts of complaints compared to its predecessor. It could also set an important precedent, because it sounds like Comcast handles its own VoIP traffic in a way similar to other cable companies, by setting aside a portion of bandwidth that's managed separately from a subscriber's internet traffic.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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New FCC, Telecom Committee Chairs: What's In Store?

from the predicting-politicians dept

As the new Presidential administration gets settled in, it's worth taking a look at some of the leadership changes that will affect the technology and communications spaces. First, FCC Chairman Kevin Martin has announced he's stepping down on Jan. 20 (not that we'll be too upset), and he'll be replaced by Julius Genachowski, pending confirmation hearings. Genachowski is a long-time friend of Barack Obama, dating back to their time together at Harvard Law School; he was also chief counsel of the FCC during the Clinton administration. But he's also most recently worked in venture capital, and was also an executive at IAC, giving some hope to the idea that he's well-tuned to the needs of web startups, entrepreneurship and new media, and will give them a voice in Washington. Many stories have noted that Genachowski's positions on many issues aren't widely known, but he did chair the advisory group that delivered Obama's Technology and Innovation Plan, which he summarized in a blog post as "Open Government. Open Networks. Open Markets." GigaOM came up with a nice wish list of tasks for Genachowski, and also reports that telcos can expect their influence at the FCC to wane from Martin's era, that cable companies can expect a slightly better environment, and that wireless companies can expect to see their broadband plans promoted. Like us, they're optimistic that Genachowski's leadership will see the FCC adopt policies that benefit consumers, rather than telcos and other providers, but we'll wait for his confirmation hearings for more details.

Over in the House of Representatives, Congressman Rick Boucher, a Democrat from Virginia and a leading proponent for consumer rights on the House intellectual property subcommittee is taking over the Communications, Technology and the Internet Subcommittee. Boucher's swapping places on another committee with former chair Rep. Ed Markey, who's introduced net neutrality legislation in the past. In an interview with the WSJ, Boucher laid out some of his views: he says net neutrality isn't a top priority for him, but that forcing wireless operators to open their networks and allow consumers to access any type of service could be. He also wants to try and reform the Universal Service Fund, an enormous telco boondoggle that really does little to advance its goal of building out telecom service in rural areas. That all sounds good, generating further optimism that things telecom-wise could be taking a turn for the better under the new administration. Still, it bears repeating: hopefully both Genachowski and Boucher will understand that what's really needed in the telecom space is real competition, and that they'll work towards crafting solutions that engender it.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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Lessig: Ditch The FCC, Replace It With Innovation Agency

from the stuff-to-think-about... dept

Larry Lessig has a piece in Newsweek suggesting that the new administration abolish the FCC and replace it with something he calls the Innovation Environment Protection Agency (iEPA) -- whose purpose is less about control, and more about getting government out of the way when not necessary. The purpose of such an agency would be: "minimal intervention to maximize innovation," with a core focus on keeping the government away from handing out favors and, more importantly, carefully reviewing any government monopolies to see if they cause net benefit or net harm. He starts off by talking about monopolies on things like spectrum, but says the agency can and should expand to cover monopolies such as copyright and patents.

There's a lot to like in the proposal, in theory. One of my big problems with pretty much any government program is how little effort there is to actually look at the basic question of: is this doing what it's supposed to do? And, if not, how do we change that? The GAO does a little bit in this area, but seems mostly powerless to actually effect change. Can you imagine if there were anyone in the government who was actually looking at some of the studies showing how much harm certain government-backed monopolies do to the economy -- and had the power to do something about it? However, it seems quite likely that, in practice, the iEPA would simply get co-opted by industry types, just as the FCC has, and the end result would be pretty ineffectual, if not downright backwards looking. A government agency designed to get the government out of the way? Not sure it's really possible...

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FCC Search Page Goes Five Full Years Without An Update

from the nice-work dept

Congrats to the FCC -- supposedly the most tech savvy of gov't agencies, for going a full five years without updating its website search. Jerry Brito, who has been watching the FCC's website for quite some time, and noting how awful it is for a tech-related agency, points out that the search page was last updated on December 11, 2003. Of course, that's not the biggest problem. As Brito notes, the docketing system has tremendous problems for an agency that needs to be more transparent: "there is no full-text search, there are no data feeds, and their robots.txt file is set to exclude search crawlers." Of course, when the agency is run by a guy famous for secrecy and purposely hiding information to get his way, perhaps it's no surprise that the search function has gone neglected.

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MPAA Tries Out Its New 'Up Is Down, Day Is Night' Strategy

from the how's-that-working-for-ya? dept

The MPAA has been pushing the FCC to allow it to basically add a kind of DRM to broadcasts. As it stands, the FCC blocks broadcasters from using "selectable output control" (SOC) to stop people from recording shows broadcast on television. They do this realizing that recording for the purposes of time or place shifting is perfectly legal, and allowing broadcasters to block consumer rights would be tremendously undesirable.

The movie studios, however, are trying to figure out yet another way to get money, and they want to rejigger release windows for movies. The way they're done now, movies are released to theaters, then special locations (airplanes, hotels), then DVD, then cable and finally network TV. What the studios would like to do is charge cable companies a lot of money to show movies on cable after they're in theaters but before they're released on DVD. Their (misguided) fear is that, if they show them on TV, people will record them and make them available via file sharing sites, killing off the DVD business. This is wrong on many levels, especially since high quality versions of the movies are almost always available on file sharing networks long before they are released on DVD, anyway. So, blocking the ability to record the movies on your DVR (which is what loosening SOC restrictions would do) wouldn't actually do anything to stop piracy -- but would piss off an awful lot of DVR owners out there, who want to know why they can't record the latest movies on TV.

The MPAA has been saying a lot of funny things in trying to defend its position, claiming that this form of DRM is necessary to let the studios release the movies early. That's simply wrong. There is nothing stopping the studios from releasing the movies in this manner right now. It's just their own misguided fear of people doing what they're legally allowed to do (record stuff on their TV) that's stopping them.

Yet, now, as a bunch of you have sent in, it seems the MPAA is going even further in this "up is down, black is white" argument in favor of being able to use SOC. It's claiming that it's the movie studios who are being pro-innovation here, and it's the consumer electronics companies (and consumers) who are anti-innovation:

"At its core, the position of CEA is that technology should be frozen in time, and any new services that require advanced technology should be banned," the MPAA told Adelstein on November 25. "This position is quite astonishing, coming from an organization that in the past has advocated in favor of technological innovation."

This is a neat bit of intellectual judo. Take your opponents (accurate) argument, and claim that it's actually your argument. The MPAA is lying, of course. They don't need SOC to innovate and release movies however they want. And, the CEA is quite pro-innovation, in letting consumers actually make use of their rights to record content. It's quite a statement for the MPAA to claim that taking away consumer rights is innovation. But, I guess that's what you get from a dying organization fighting for its life.

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Wardrobe Malfunction, Obscenity Or Censorship Malfunction?

from the fcc-appeals dept

Earlier this year, a court tossed out the FCC's fine on CBS for Janet Jackson's infamous Superbowl half time show "wardrobe malfunction." As the court noted, the FCC's reasoning for the fine showed an arbitrary decision that did not fit with any existing guidelines. However, it appears the FCC disagrees and is now appealing the ruling to the Supreme Court, saying that it was the court, not the FCC, that misapplied indecency rules. Of course, we're still wondering why this matters nearly five years after the incident.

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FCC Just Couldn't Stop Voting

from the election-day-festivities dept

Well, it's election day and apparently the FCC commissioners liked voting so much they took votes on just about everything. Amazingly, it looks like they even made some good decisions. The big one, of course, and the one that will get the most press, is the unanimous vote to free up television "white space" spectrum. While the NAB made a last ditch effort to stop this, the FCC made the right call here. This spectrum can be put to much better use, which can have a huge impact on increasing innovation and wireless technologies. This is a big win. The FCC also approved Sprint and Clearwire's deal to set up a joint venture for their WiMax operations, as well as allowing Verizon to buy Alltel. Both of those deals make sense as well, so it's good to see them approved.

Other than that, the FCC said that it's going to start looking into the pricing policies of cable companies... and Verizon. Who's missing? FCC boss Kevin Martin's best friends over at AT&T. To be honest, while it's quite likely that the cable companies and the telcos (yes, including AT&T) are abusing their oligopoly position, the answer shouldn't be having the FCC act as a watchdog over pricing policies, but for a better system to be set up that encourages real competition. In the meantime, though, can someone explain why AT&T was left out of the bunch?

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Kevin Martin In Favor Of Freeing Up White Space TV Spectrum

from the good-news dept

While there's been a ton of propaganda from TV broadcasters (and, oddly, wireless microphone vendors) concerning requests from tech companies to make use of the so-called "white space" spectrum that surrounds the spectrum the TV broadcasters use, it appears that FCC boss Kevin Martin is now prepared to support freeing the spectrum for other uses. This isn't all that surprising, given that the FCC has been pushing to free up such spectrum for years, but it is very good news. While there were some early test device failures, the problems were with the devices themselves, not in creating any interference, as the critics claim. This totally unused spectrum could open up all sorts of interesting new wireless technologies that could be tremendously useful in many different ways.

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Senate Guts Broadband Data Bill

from the not-so-special-after-all dept

You may have heard recently about the new Broadband Data Improvement Act, passing through Congress, as it basically put into law what the FCC had already decided: the cutoff for what should be considered broadband needed to be raised, and the data collection methods for broadband penetration needed to be updated, from the clearly bogus methodology it currently uses.

Sounds good, right?

Except, as Broadband Reports lets us know, in moving from the House to the Senate, some Senators took the opportunity to gut the bill of most of its important parts. That is, it took away all funding for the FCC to actually measure broadband penetration in the US and took away the mandate to create a broadband penetration mapping solution. In other words, the Broadband Data Improvement Act has removed the ability for the FCC to improve broadband data.

Now, you could argue that the FCC shouldn't be wasting money on measuring this sort of stuff, but if you happen to believe that broadband is critical infrastructure these days, and an enabler of many other industries that drive economic growth, you can make a reasonable argument for why the government should have accurate data on broadband penetration, to make sure that we're not falling too far behind other countries.

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What's The Harm In Undisclosed Product Placement?

from the who's-hurt? dept

Back in June, we mentioned that the FCC was exploring whether or not to require any product placement be more clearly labeled. This didn't make much sense, as we couldn't see who was "harmed" without the disclosure and who was helped by it. It basically treats most people as if they're idiots who can't take into account that products seen on TV may have been paid for placement. It appears that Adam Thierer agrees, and has filed comments with the FCC questioning the wisdom of such a move. While some may insist that Americans are being "tricked" by this, it would seem like there should be some proof that there's actual harm before we go about regulating it. Also, there seems to be little recognition of the impact that reputation can have on this as well. With so many sites ready to pounce on any commercial action that appears to be trickery or misleading in some form or another, companies would be well-advised to be as upfront as possible in their advertising efforts. Those caught "tricking" consumers will feel significant backlash for their efforts, making it not worthwhile. It seems that this ability to shine an automatic light on questionable practices should limit the worst abuses of any "trickery."

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Revolving Door Undermines FCC's Watchdog Role

from the network-neutrality dept

In previous installments of my series on network neutrality, I've pointed out that the end-to-end principle is not as fragile as a lot of people assume. Technological platforms have a kind of momentum that make them hard to change once they've become established, and so it's not at all obvious that major broadband providers have the ability to significantly change the Internet's architecture. In my view, this is one reason to be skeptical of making the FCC the nation's network neutrality cop.

Here's a good example of another reason for skepticism: Catherine Bohigian, chief of the office of Strategic Planning and Policy Analysis at the Federal Communications Commission, stepped down effective September 5. Her next job will be with cable giant Cablevision. According to the Washington Post, Bohigian has worked closely with chairman Kevin Martin throughout his tenure. And before her tour of duty at the FCC, Bohigian—like Martin—worked at Wiley, Rein & Fielding, a private law firm specializing in communications law. In other words, Bohigian first worked at a law firm that regularly appears before the FCC, then she became one of the key decision-makers at the FCC, and now she's going to be working for a company that regularly appears before the FCC. It's reasonable to assume that she'll be using her intimate knowledge of the regulatory process—and, perhaps, her close ties to other FCC staffers—to gain regulatory advantages for her employer.

Now, this isn't illegal. It's not even unusual. But this kind of low-grade corruption does give us a window into how the regulatory process works. Theoretically, the FCC is supposed to be a neutral agency that enforces the law in the public interest. In practice, the revolving door between the commission, major telecom companies, and the high-priced law firms that represent those companies means that the people who staff the agency and the people who lobby the agency are largely the same people at different points in their careers. In the next few years, if Cablevision wants to make sure that a particular FCC decision comes out in a way that promotes their interests, they won't just be able to make their arguments via the formal legal process. They'll also be able to dispatch Bohigian to have lunch with key FCC staffers—many of whom will be her friends, and possibly her former employees—to personally plead Cablevision's case. And of course, many of those staffers will be thinking about what their next gig will be, and it will be obvious that their chances at getting a cushy job at a major telco or cable company will be enhanced if they're helpful to those companies while they're still with the Commission.

You could mitigate this somewhat with stricter lobbying rules. For example, Congress imposes a one-year time limit on Hill staffers lobbying their former colleagues after they take jobs in the private sector. Maybe the FCC should beef up its own conflict-of-interest rules. (Update: As some commenters have pointed out, senior FCC officials are are already subject to a one-year cooling off period. This restriction could obviously be broadened or extended in various ways, but it's not going to be feasible to write rules that would eliminate the influence of industry insiders at the FCC.) But shutting down the revolving door completely would be extremely difficult. The regulations the FCC enforces are complicated, and the FCC needs a pool of people with in-depth understanding of those rules in order to do its job. But for people with expertise in the areas of law the FCC administers, the only other use for those skills is representing clients before the FCC. A ban on former FCC staffers working for telecom firms or the law firms that represent them would make it extremely difficult for the FCC to recruit talent, because working at the FCC would essentially be a dead-end job. Once somebody had taken a job at the Commission and developed expertise in telecom law, she'd have no real options for using those skills.

Which means that when we're debating new regulations of the telecom industry, we have to remember that the rules will be enforced by an agency that has close ties to incumbent telco interests. If Congress passes network neutrality regulations, those regulations will be interpreted and enforced by an agency whose key staffers have close ties to the major telephone and cable incumbents. Which means that the results are likely to be more incumbent-friendly—and less consumer-friendly—than network neutrality advocates expect. If Cablevision gets in hot water for a network neutrality problem, they'll be able to dispatch Bohigian and others on their payroll to make sure the company doesn't get more than a slap on the wrist. And, as I'll explain in the next installment, not only can this sort of lobbying render regulations toothless, but in some cases it can actually make things worse by allowing incumbents to tie their competitors up in red tape.

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Other posts in this series:

• Censoring The 'Net Is Hard
• Ownership Doesn't Always Mean Control
• Changing The Internet's Architecture Isn't So Easy
• Revolving Door Undermines FCC's Watchdog Role

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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Tech Lobbying/PR Firm Outed For Faked Op-Eds

from the what-will-the-corn-farmers-do? dept

We get tons of PR spam here at Techdirt, most of which is simply an attempt to get us to write about this or that startup or product launch. It pretty much all gets trashed. Occasionally we hear from various tech lobbyists as well, pushing an angle on a story that supports the angle they're pushing. But one of the oddest experiences we've had was with a firm called LawMedia Group, which we wrote about earlier this year when Declan McCullagh outed the group as having allegedly composed a letter from a group of corn farmers somehow opposed to Google and Yahoo working together. Why corn farmers would be interested in such things isn't clear -- but McCullagh pulled back some of the curtain on the way these sorts of lobbyist groups act, picking a somewhat random "group" and then writing these sorts of letters and simply placing the group's name on the top -- even if (as in the corn farmers/internet advertising situation) the group has nothing to do with the issue at hand.

In our case, as mentioned, the folks at LawMedia Group started out by acting as if we were close friends, and then insisting that they had some really secret info that was damaging to FCC boss Kevin Martin. It's no surprise why they would approach us on the subject -- as we've written critically about Martin for years. After ignoring repeated requests for a phone call during which this info would be "revealed," I finally said that if they had anything they wanted me to see, just send it over. And so they sent a bunch of stuff that basically confirmed what was well known: Kevin Martin has friends who work at AT&T. Shocking, right, that a telco regulator might have friends at a telco? But, of course, it was positioned in a way to make it look really secretive, even to the point of suggesting that Martin really worked for AT&T. In other words, it was totally bogus. I told the guy at LMG that the info seemed pretty pointless, and never spoke to him again -- though he and other colleagues keep emailing stories that might make Martin look bad.

Now Declan is back with more stories of questionable activities by LawMedia Group, including what would appear to be a series of op-ed pieces published in newspapers using the names of people who don't even agree with what's in the op-ed, but, from the sound of it, may have effectively rented their name out to LMG to use in the op-ed. Most of the article focuses on a guy in Boston who is in favor of net neutrality, but had an op-ed published under his name that strongly argues against net neutrality. The guy admitted that LMG had something to do with it, but refused to provide details. However, when asked his opinion on net neutrality, proceeded to stay stuff in direct contradiction with what was in the op-ed under his name.

While somewhat sleazy tactics like this may be every day business in Washington DC, it's good to see it exposed, especially when it's being done so egregiously. At the very least, maybe it'll get LMG to stop bothering me with bogus conspiracy theories about Kevin Martin.

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