It was, in five words, the encapsulation of a city's defiance – bowed, but never broken. Not even close. It also happened to be NSFW (not safe for work). Or children. Or anyone in Mr. Rogers' neighborhood.

It was the declaration by legendary Red Sox slugger David Ortiz in pregame ceremonies Saturday, which were broadcast nationwide.

"This is our f------ city, and nobody's going to dictate our freedom."

The "ban raises competition concerns; it raises innovation concerns."

Genachowski isn't sure what authority he has, but if he finds any, given the tone of the conversation, it's likely he will exert his influence to reverse the decision. "It's something that we will look at at the FCC to see if we can and should enable consumers to use unlocked phones."

I ended up talking to the Post reporter on the phone and e-mailing with the Post's ombudsman. The ombudsman told me that the FCC confirmed to the Post that the "free Wi-Fi" story was correct, which is odd, because I also talked to people at the FCC who said the exact opposite. Similarly, a TechCrunch reporter wrote that "my contact at the FCC told me that there was no such plan" as the one reported by the Post.

The Post reporter was genuinely nice and seemed eager to correct the record, but the execution was lacking. She followed up with a more realistic piece titled "Five things to know about 'free' public Wi-Fi." It explains some of the realities of the situation, such as the fact that the FCC won't be building any networks itself and that whatever networks are built won't necessarily be used to provide free Internet access.

The Post's follow-up story was all well and good, but the original story was never corrected or retracted. In addition to getting the front-page treatment, the initial Post story was coupled with a cringe-inducing video titled "FCC offers path to free Internet access." A host begins the spot by asking, "What if Wi-Fi didn't come from a router in your living room but instead from powerful TV antennas? And better yet, what if you didn't have to pay for it? That possibility could become a reality across the US thanks to a new proposal by the Federal Communications Commission." (Have I made it clear that the proposal is not new and never required "free access," either?)

Parsing Kang's story a little bit more since posting this, I've become even more confused. In her tweet she says she's talking about the white spaces in the incentive auction NPRM, but those couldn't possibly be used for a nationwide wireless network since they'd be low-power Part 15 type bands. Also, unlicensed in the 600 MHz guard bands are not Chairman Genachowski's design, they were allowed by Congress when they gave the FCC auction authority. So what is Kang referring to? Most likely it is the Chairman's initiative, announced at CES earlier this month, to clear 195 MHZ in the 5 GHz band to improve Wi-Fi.... Bottom line, I think Kang conflated two separate proceedings into one big non-story that made it past the Washington Post's editors all the way to the top left corner of the front page. I hope there is a correction tomorrow.

The FCC recently developed provisions for unlicensed devices to operate on TV channels that are not used at any given locations, called "white spaces." Interference is avoided by controlling access to the spectrum through a database of protected service areas. The white spaces in the TV spectrum offer an opportunity for a new generation of products such as Super Wi-Fi and wireless broadband services for communities, particularly in rural areas. In the incentive auction proceeding, the FCC proposes to make a substantial amount of additional spectrum available for unlicensed uses. First, the Commission proposes to continue allowing the operation of white space devices in the broadcast television spectrum in the newly repacked band. In addition, the FCC proposes to make the guard bands in the new band plan available for unlicensed use. Under the plan discussed above, the two proposed guard bands would be 6 MHz wide and could be larger when accounting for the addition of "remainder spectrum" resulting from the uneven division of 6 MHz wide television channels into 5 MHz blocks. Furthermore, the FCC proposes allowing unlicensed devices to operate for the first time on Channel 37 by establishing appropriate protections for existing operations in the white space database. Taken together, the FCC's proposals will enable a substantial amount of spectrum use by unlicensed devices. A significant portion of this spectrum will be available on a nationwide basis, which is important because there currently is little or no white space in the TV bands in parts of many major markets. In making these proposals, the FCC seeks to promote greater innovation in new products and services, including increased access for wireless broadband services across the country.

In short, because there's that first reverse auction in which broadcasters are supposed to be incentivized to cough up existing spectrum (again, which taxpayers gave them for free...), it's not entirely clear how much 600 MHz spectrum will be available to be auctioned off to anyone. Basically, they have these two chunks, starting at 608 MHz and counting down, and another at 698 MHz and counting down -- and the total amount available will depend on how much the broadcasters agree to cough up in the reverse auction. At the "bottom" of that range, the FCC has proposed a 6 MHz guard band for each of these chunks, and making much of that subject to the existing white space rules and hopefully allowing something useful to be done with that unlicensed spectrum, especially if it's combined with other available white space. The "guard bands" are called that, as they're supposed to "guard" between interference between licensed spectrum on either side, though there's a fair bit of debate over how much space is really needed to "guard" such interference. That argument leads to some suggesting that the FCC is offering up too much for the guard bands in an effort to get more unlicensed spectrum on the market.

The fight is over how much spectrum is used for unlicensed and how much for licensed. The telcos, like AT&T, want to limit the unlicensed spectrum, while internet companies, like Google, want as much of it as possible. Similarly, there are some in Congress who are against offering very much (if any) unlicensed spectrum, taking the really dumb short term view that any unlicensed spectrum (even if it leads to tax-creating innovations) is leaving money on the table, since telcos are expected to spend billions buying up any licensed spectrum available. Again, though, that's the same old story.

In short: there's an ongoing fight about how much spectrum in newly auctioned 600 MHz spectrum will be "unlicensed," which is important for some cool things. But, that's got little to do with a magic "free" nationwide internet service. This is important stuff, but the reporting by many folks has been abysmal.

In fall 2009, Comcast planned to launch an Internet service for the poor that was sure to impress federal regulators. But David Cohen, the company's chief of lobbying, told the staff to wait.

At the time, Comcast was planning a controversial $30 billion bid to take over NBC Universal, and Cohen needed a bargaining chip for government negotiations.

"I held back because I knew it may be the type of voluntary commitment that would be attractive to the chairman" of the Federal Communications Commission, Cohen said in a recent interview.

The initiative may not have sealed the FCC's decision to approve the NBC merger. But it helped, Cohen said.

The proposal clearly captured the fancy of regulators. Late last month, Genachowski, the FCC chairman, touted the program, seemingly claiming some credit for its creation.

"This particular program came from our reviewing of the Comcast NBC-U transaction," Genachowski said in a speech. "Comcast embraced it as good for the country, as well as good for business. And I'm fine with that."

FCC boss Julius Genachowski has been busy lately paying lip service to Silicon Valley, most recently telling a bunch of Silicon Valley conference attendees that caps were something we should be "concerned" about, after telling cable companies just a few months earlier he thought caps and overages are nifty and innovative. Speaking again to Silicon Valley folks yesterday at a speech at Vox Media headquarters, Genachowski hashed out his muddy position a little further, again insisting he was "concerned" about caps -- sort of -- maybe

One, caps (and especially usage fees) are not technically or economically necessary whatsoever. Flat-rate broadband is perfectly profitable and despite doomsday prognostications designed to scare regulators (it apparently worked), most networks consistently keep pace with demand thanks to dropping bandwidth and hardware prices and improved engineering. Ten years of ISP earnings reports are proof the flat-rate pricing model is sustainable.

Two, they're not being imposed in a "competitive market"; they're just price hikes on already-expensive service, designed to protect TV revenues from Internet video -- and they're made possible specifically because of limited wireline competition, a problem the FCC refuses to seriously tackle. Most modern, well-managed wired broadband networks don't see much congestion. Caps and overages are an executive and investor pipe dream; an entirely new unnecessary fee system layered on top of what is already some of the most expensive broadband service in the developed world (OECD data).

Genachowski appears to have swallowed the lie that money gleaned from overages goes back into the network; yet CAPEX and wired network investment is dropping like a stone for most incumbents, and most of the cash gleaned goes into the pockets of CEOs and investors. While that's the public corporation's primary objective, pretending that caps are helping to create the networks of tomorrow is not supported by the facts. If the money from overage fees actually went back into the network, Canada would have some of the most advanced residential broadband networks in the world. Go ask our Canadian forum users exactly what caps have done to improve the quality of their services.

Neil Grace, a spokesman for Chairman Julius Genachowski, said the commission only made the proposal “following the urging of Republican Commissioners and members of Congress."

"The Chairman remains unconvinced that including broadband is the right approach,” he said. Robert McDowell, the only Republican on the commission when the proposal was floated earlier this year, flatly rejected that he ever supported the idea. "I have never suggested taxing broadband Internet access," he told The Hill.

McDowell said he is skeptical that the FCC even has the legal authority to tax Internet service.

In April, the FCC suggested a number of ideas for reforming the fund's contribution system, including adding a fee to broadband Internet service. The commission also sought comments on taxing text messages, as well as levying a flat fee on each phone line, instead of the current system, which is based on a portion of the revenue from interstate phone calls.

A number of companies, including AT&T, Sprint and Google, expressed support for a broadband tax in comments filed with the FCC.

What started as a program with important goals (making sure rural farmers can make phone calls and ensuring the poorest among us can dial 911) turned into an unaccountable corporate slush fund. Today USF is an $8 billion annual program, nearly quadrupling in size since its inception, with the bulk of that increase going to landline and wireless phone companies.

Maybe this massive growth would be no concern if USF were a model program with a sterling reputation for efficiency. But it’s not. One recent study found that 59 cents of every USF dollar raised for rural networks was spent on administrative expenses and general overhead. A 2010 audit of the rural USF program found that one out of every four dollars sent to participating phone companies was an “overpayment,” with nearly a billion dollars unaccounted for.

AT&T says that “retail mass market broadband Internet access should be included” in the FCC’s tax, and Google “strongly supports expanding the USF contribution base to include broadband Internet access services,” even as it begs the FCC to exempt Google’s own voice telephony services from the USF tax.

1. It believes that there is a loophole in the net neutrality rules in that it does not apply to preloaded apps, and they can set whatever access rules for such apps that they want:

   The FCC’s net neutrality rules do not regulate the availability to customers of applications that are preloaded on phones. Indeed, the rules do not require that providers make available any preloaded apps. Rather, they address whether customers are able to download apps that compete with our voice or video telephony services.



2. It believes that as long as some other competing apps are available, they can restrict the apps they want to restrict.

   AT&T does not restrict customers from downloading any such lawful applications, and there are several video chat apps available in the various app stores serving particular operating systems. (I won’t name any of them for fear that I will be accused by these same groups of discriminating in favor of those apps. But just go to your app store on your device and type “video chat.”) Therefore, there is no net neutrality violation.

In other words, the FCC took action and finally enforced 2008 rules when they knew Verizon was already changing their ways -- without FCC involvement. Meanwhile, the FCC is rumored to be ready to sign off on Verizon's marketing relationship with the cable industry, despite the serious anti-competitive and coverage issues that deal raises. This tethering ruling could be a way to pretend to appear "pro consumery" before approving the Verizon cable deal.

Yesterday, Vint Cerf distributed an open letter regarding concerns about the Measuring Broadband America measurement infrastructure. We share the objectives of the letter writers that “Open data and an independent, transparent measurement framework must be the cornerstones of any scientifically credible broadband Internet access measurement program.” Unfortunately, the letter claims: “Specifically, that the Federal Communications Commission (FCC) is considering a proposal to replace the Measurement Lab server infrastructure with closed infrastructure, run by the participating Internet service providers (ISPs) whose own speeds are being measured.” This is false.

The FCC is not considering replacing the Measurement Labs infrastructure. As part of a consensus-based discussion in the Measurement Collaborative, a group of public interest, research and ISP representatives, we have discussed how to enhance the existing measurement infrastructure to ensure the validity of the measurement data. Any such enhancements would be implemented solely to provide additional resiliency for the measurement infrastructure, not to replace existing infrastructure. Any data gathered would be subject to the same standards of data access and openness.

Recently, the FCC measurement program has backed sharply away from their commitment to transparency, apparently at the bidding of the telcos in the program. The program is now proposing to replace the M-Lab platform with only ISP-managed servers. This effectively replaces transparency with a closed platform in which the ISPs -- whose performance this program purports to measure -- are in control of the measurements. This closed platform would provide the official US statistics on broadband performance. I view this as scientifically unacceptable.

For the health of the Internet, and for the future of credible data-based policy, the research community must push back against this move.

Vint breathlessly suggests that the FCC is now backing away from this openness "at the bidding of the telcos" and claims the program is proposing to replace the M-Lab platform with only ISP-managed servers. THIS IS FALSE. ISPs have made no such request of the FCC nor has the FCC proposed to eliminate use of M-Lab’s servers.

What has been proposed is that, in addition to continuing to use the data collected via the M-Lab servers, the FCC and SamKnows may also rely on the ISP provided servers that have been in use since the beginning of the project. These ISP-provided servers meet the specifications required by SamKnows as do the M-Labs servers. In fact, it was only because of the presence of these non-M-Lab, ISP-donated servers, that SamKnows was able to identify problems with an M-Lab server that was affecting the results of the tests being conducted. M-Labs did not identify this server problem on their own. It was only fixed when SamKnows brought the issue to their attention. By the way, this problem forced the FCC to abandon a month's worth of test data, extend the formal test period and delay production of their report. Later, another M-Lab server location had transit problems that again affected results. This was the second M-Labs-related server problem in two months and once again, it was SamKnows, using the ISP-provided servers as a reference who identified the problem and brought it to M-Labs attention.

The First Amendment protects not only traditional speakers, but other participants in the “communication of ideas.”... For example, it protects those transmitting the speech of others, and those who “exercis[e] editorial discretion” in selecting which speech to transmit and how to transmit it.... Broadband providers engage in and transmit speech, and the rules—which limit broadband providers’ own speech and compel carriage of others’ speech—cannot survive scrutiny.

Broadband providers transmit their own speech both by developing their own content and by partnering with other content providers and adopting that speech as their own. For example, they develop video services, which draw information from, and are then made available over, the Internet. Many also select or create content for their own over-the-top video services or offer applications that provide access to particular content. They also transmit the speech of others: each day millions of individuals use the Internet to promote their own opinions and ideas and to explore those of others, and broadband providers convey those communications.

In performing these functions, broadband providers possess “editorial discretion.” Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others. Although broadband providers have generally exercised their discretion to allow all content in an undifferentiated manner... they nonetheless possess discretion that these rules preclude them from exercising. For example, they could distinguish their own content from that of other speakers or offer that capability to others. In fact, some types of speech, such as live streaming high-definition video, could benefit from (or may only be available with) differential treatment, such as prioritization. Broadband providers could also give differential pricing or priority access to their over-the-top video services or other applications they provide, or otherwise feature that content.... Indeed, the FCC’s concern that broadband providers will differentiate among various content presumes that they will exercise editorial discretion.

The Order’s broad “prophylactic rules” infringe broadband providers’ protected speech rights. They strip providers of control over which speech they transmit and how they transmit it, and they compel the carriage of others’ speech. They also limit the means by which providers can secure additional revenue, which impairs their ability to deploy new networks and capabilities (or to expand the size of existing ones), thereby limiting their ability to speak and deliver speech. And they make clear that even “specialized services,” such as video services, will be subject to the Order’s restrictions if the FCC decides that such services are “retarding the growth of ... broadband Internet access service,” or if broadband providers merely “advertis[e]” these services to consumers as “Internet” services, ... thus constraining their marketing speech as well.

The Order also violates the Fifth Amendment. It grants the equivalent of a permanent easement on private broadband networks for the use of others without just compensation—a per se taking.... “In essence,” edge providers “receive an unlimited, continuous right of access to broadband providers’ private property for free,” which “allows them to physically invade broadband networks with their electronic signals and permanently occupy portions of network capacity.” D. Lyons, Virtual Takings: The Coming Fifth Amendment Challenge to Net Neutrality Regulation.... The resulting occupation is physical, for increases in network traffic consume available capacity and ultimately require the acquisition or construction of additional capacity.

Even without a physical occupation, the rules constitute a regulatory taking because they “interfere[] with [broadband providers’] distinct investment-backed expectations.”.... Providers have invested billions in broadband infrastructure on the understanding that they can manage access to network facilities and use those facilities to offer the products that their customers want. These rules sharply curb providers’ ability to do so, thereby frustrating their substantial and reasonable investment-backed expectations.

The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside.

In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commission's untenable rulings in the cases now before the Court show why Pacifica bears reconsideration.

This would be true with respect to a regulatory change this abrupt onany subject, but it is surely the case when applied to theregulations in question, regulations that touch upon “sensitive areas of basic First Amendment freedoms,” Baggett v. Bullitt, 377 U. S. 360, 372 (1964); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 870–871 (1997) (“The vagueness of [a content-based regulation of speech] raises special First Amendment concerns because of its obvious chilling effect”).

"Sign me up as supporting Justice Kennedy's notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts. It's a symbolic matter...These are public airwaves, the government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth."

He said government often fails when it gets into the business of trying to understand context, as it purportedly did when it fined ABC for showing fleeting nudity on NYPD Blue.

"Right now, the commission has pending before it... complaints about the opening episode of the last Olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks," he told the Supreme Court.

Waxman then pointed around the room. "There's a bare buttock there and there's a bare buttock here."

As the crowd snickered, Scalia admitted that he hadn't noticed it before now.

Verizon’s conduct undermines the Commission’s general approach towards mobile Internet openness by dismantling the protections for one part of the spectrum on which the FCC’s “incremental” approach to regulation in this space is built. Without enforcement, the openness conditions are effectively moot. Verizon violated these conditions earlier this year when it blocked tethering applications. Now it is blocking Google Wallet. This emerging pattern of disregard for its license conditions challenges the FCC to follow through on its pledges in the Open Internet Order to enforce the openness conditions in the 700 MHz band and to monitor the mobile Internet space for abuses by licensees.

To wit:

"For accounts that repeatedly go into overage, it is reasonable to infer that it is a matter of consumer choice. These customers are either indifferent to overages or are making the deliberate decision to incur overages because it is the most cost-efficient solution for their usage patterns."

Customers will receive free text alerts in real-time when they're about to exceed their limits, CNET reports. The move is supposed to cut down on the "bill shock" people may feel when hit with sky-high rates for extra usage. Wireless carriers will also warn customers who travel overseas about the additional fees they may incur.

Under the volunteer measures, wireless carriers have 18 months to put their warning systems in place.

Some providers, including AT&T and Verizon Wireless, already warn their customers as their data use approaches the limit. However, these warnings may be delayed. AT&T, for example, takes 24 hours.

"You go down the Latino people, the deaf people, the farmers, and choose them.... You say, 'I can't use this one--I already used them last time...' We had their letterhead. We'd just write the letter. We'd fax it to them and tell them, 'You're in favor of this.'"

The faith-based service provider offered what it acknowledged was “an out-of-place endorsement” of the AT&T merger with T-Mobile, with Rev. R. Henry Martin explaining that “People often call on God to help the outcasts and downtrodden that walk among us, [but] [s]ometimes, however, it is our responsibility to take matters into our own hands. Please support this merger.”

The primary thrust of the project involves the agency's plan for USF reform, the specifics of which have yet to be fully disclosed but are believed to be largely pulled from AT&T and Verizon lobbyist recommendations. The FCC's "Connect to Compete" website insists this reform could net "$1 billion or more per year in benefits for wireless consumers alone." However, unmentioned is the fact the plan will likely drive up prices for consumer broadband bills by raising the cap on USF fees charged by carriers above $6.50 per month.

What would consumers get for this money? Digging into the telco's USF plan, there's absolutely nothing there that suggests serious broadband expansion beyond what they'd already planned with upcoming LTE efforts. There's also absolutely nothing to suggest the FCC has a handle on auditing the USF and e-Rate program. $25 billion has been poured into large and small telco coffers over the years (in addition to billions in additional subsidies), and yet somehow our libraries still lack adequate bandwidth.

Readers should be able to conclude where most of this money actually went. Ignored by the FCC and the press is the fact that all the state and federal subsidies doled out to phone companies by now could have easily wired every U.S. home with fiber to the home several times over. AT&T and Verizon should not be getting another penny in government subsidies, yet the FCC's USF reform will almost-certainly involve additional handouts you'll be paying for in the form of higher broadband bills.

Current events around the country and the world highlight the urgency and importance of this issue. Growing concern over “flash mob” crimes has led some policymakers to attempt to target communications network for increased scrutiny. In the wake of riots in London, politicians in the United Kingdom have proposed increased governmental surveillance of, access to, and control over social media platforms and other communications media. Such interference with communications has a long history of being used to suppress civil rights protests over a wide variety of traditional and new media, from distributing flyers to television broadcasting.

This tendency, multiplied by the number of state and local agencies willing to exercise control over CMRS, could wreak complete havoc on the reliability of CMRS service by rendering it dependent on the discretion of the most-restrictive authority in any given region. Moreover, inconsistency and unreliability of service would be only two of the many resulting problems. If local government agencies claimed the authority to impede or restrict communications at their own discretion, users’ rights to free speech, just and reasonable access, and emergency services would all be imperiled, subject to local determinations of the relative values of these rights as balanced against the peculiar interests of the restricting authority.

As made plain by the negative ramifications of BART’s alternative proposal, statutes exist – and have been upheld by the courts – to prevent actions like BART’s for good reason. When local and state agencies determine a need to restrict communications, they must work with local public utilities or communications agencies and the Commission pursuant to recognized processes. It is untenable legally and practically to allow the whim of any person or agency that has access to network hardware to dictate who is entitled to access communications services and when.

BART’s past shutdown of CMRS, and its apparent plans for similar shutdowns in the future, raise grave concerns. More troubling, other local agencies may use similar shutdowns of CMRS networks in the future--potentially disrupitng access to communications relating to public safety and protected speech. For the above-mentioned reasons, the Commission should issue a declaratory ruling clarifying that such shutdowns by local governments violate the Act.