After months spent gathering comments about preserving an open and competitive Internet, the F.C.C. requested more feedback on Wednesday about whether regulations should apply to wireless Internet service.

The agency is also asking for comments about one of the most hotly debated Internet regulatory issues: special services that offer to prioritize certain digital traffic for a fee. …

The F.C.C.’s decision to seek further comment during the next 55 days effectively precluded any commission actions until after the Congressional elections in November.

Source

With that single action the FCC buys time. The comment periods generally run 90 days or more depending on depth and technical complexity. But the singular act pushes any decision by the FCC till after the midterm elections. (Feld, if you are out there, I told you this was exactly what the FCC would do.) This is a no decision decision.

Now if you read this HotAir piece, one comes away with a position that the FCC will do a rule making in the dead of night kind of thing. Personally I don’t think it that way. Remember that the FCC is uniquely a device answerable to Congress not the Executive. So this is a move to, like a trapped animal, look for a way out of the trap they are in. The FCC realizes that they may have new masters come January. No since angering them during a lame duck session for any rule making along those lines could be dispatched in short order by reshuffling the Commission.

This is just another indication that the FCC is generally irrelevant to most matters associated with communications. Technology has nearly eliminated the general necessity for band allocation in all but a few distinct areas. And consumer protection, if its needed is the purview of the FTC not the FCC.

Ok lets get something straight. We here at ThirdPipe are FOR a Net Neutrality requirement for carriers. But the current ‘Net Neutrality’ option winding its way thru the halls of the FCC is NOT Net Neutrality. Its nothing but a power grab by the Beltway Bandits to squelch dissent.

Oh but it gets worse. The economics of its do not bode well either —

The study, authored by Charles Davidson and Bret Swanson, forecasts that the nation would hemorrhage 500,000 jobs in a best-case scenario were broadband reclassified as a Title II telecommunications service. That just so happens to be an objective currently under pursuit by members of the Federal Communications Commission (FCC) with support from backers of “net neutrality” policy.

The forecasted job losses are likely to make for unpleasant headlines for the FCC at a time when jobs and the economy remain paramount in the minds of most voters and legislators.

“Especially at time when the national economy is attempting to recover from a major and enduring downturn and private sector job creation remains a concern, the destabilizing impacts of the FCC’s proposals place the nation’s economy at even greater risk,” the study reads.

Telecommunications companies have for months now warned that a formal adoption of the FCC’s reclassification proposal could hamper innovation and infrastructure investment, and observers say this study could provide them with fresh ammunition in the fight against reclassification and net neutrality.

“If this Title II regulation looks imminent, we have to re-evaluate whether we put shovels int he ground,” AT&T chief executive Randall Stephenson said earlier this month in an interview with the Wall Street Journal.

From 2003 to 2009, broadband service providers invested, on average, an annual $30 billion for deployment, which created or sustained some 431,000 jobs. Were that level of investment to dip by a conservative 10 percent in the wake of reclassification, 502,000 jobs would disappear and the nation’s GDP would shrink $62 billion. At 30 percent, the study projects the U.S. GDP would drop by $80 billion, for a loss of 602,000 jobs.

Following suit of their Republican colleagues, a growing chorus of senior Democrats have in recent weeks expressed opposition to the FCC’s regulatory rewrite, asking they instead pursue a legislative solution. Cross-chamber whip counts reveal at least 285 legislators disapprove of the measure.

Flush 500k jobs? Sure could. Do the major Telcos have that many jobs? No. But what is not known by many in the beltway crowd is that a large percentage of the Outside Plant work is today done by contract firms. They would be the first to be laid off on the street if the current proposals are adopted. But even at the Telcos there would be follow on layoffs in the management ranks. Why keep an outside plant manager or a facility supervisor if nobody is laying any FIOS cable? They too would be on the street.

The Net Neutrality move is as bad as the DISCLOCE Act in many ways. But to lose a half a million jobs to boot? Somebody get a broom. The FCC needs sweeping out.

The white paper is located here.

Harold Feld lays another missive out there — Kerry, Other Ds, Defend FCC Going Ahead on Broadband Authority NOI. The primary argument is that the FCC’s detractors, as the Burger King commerical says — “Want it their way”. Now I won’t deny they do, who doesn’t? But Harold, I think you are intentionally dodging a few key points –

We saw this recently with the EPA and carbon emissions. The Congressional climate change bill stalled. So EPA acted under its existing statutes to make sure Americans have clean air and stuff. “Shocking!” Cried Industry. “An appalling power grab!” Agreed industry allies in Congress. “Just doing our actual firkin’ job you told us to do,” responded EPA. “And if you get your act together to provide more detailed guidance on climate change, we’ll be all set to do what you want. Until then, we do the job you told us to do with the tools we have.”

Which brings us back to the current fight over broadband. After the Comcast/BitTorrent case, spending some time pondering what to do, Genachowski concluded that if the FCC wanted to accomplish anything in the National Broadband Plan or have the ability to protect consumers if anything went wrong, he needed to look at the underlying basis for FCC authority and consider a new approach. That includes proposing “Title II-lite,” “Third Way,” whatever you want to call moving broadband out of the “Title I” ancillary services box and into the “Title II” telecommunications services box. Needless to say, the forces in favor of the status quo reacted predictably by fighting any action tooth and nail.

How do I think Mr. Feld misses the mark? –

• The FCC was designated as the protector and arbiter of the wireless realm to prevent conflict and promote its expansion AS A TECHNOLOGY AND SERVICE. That is what the 1934 act is all about and little has changed from that original mission.
• The expanded intent to protect consumers via ‘net neutrality’? If that is the case then the FCC is the wrong agency to even consider, it should be moved to CPSC. That is their charter. Or the FTC if one thinks that market collusion is harming the consumer. But not the FCC.
• Then here is the big one you don’t feign to mention. In your EPA example, the Court (SCOTUS) ruled that indeed the EPA had the responsibility to consider CO2 as a possibly harmful gas as part of its charter in the founding legislation. In the case of the 1st DC Court, Comcast vs FCC, the Court ruled specifically against the FCC as having no controlling authority.

  You can’t in the second instance down play the rationale of the Court for your own ends then upsell in the first instance when it suits your need. The Courts have been reasonably consistent on this matter of administrative law. Good for them and an awful red herring in your missive.

There are of course the nagging bits that the beltway does not want to face. Like, in several survey’s a full third of respondents in target exurban markets said they would not connect EVEN IF THE PIPE PASSED THEIR HOUSE. What a waste of money. Which is why the physical plant rarely strays outside the major MSA on the country. The other little bit, is even if the FCC were to move forward, how does it get funded? Tax? In an election year? With the Democrats on the defensive? And no authoritative legislative means to fulfill it? Again a waste of time.

If the Beltway wants to see a broadband implementation, then they need to change their mindset. A) The pipe for the exurban space is in the air not the ground. B) That means that Congress should grant tax incentives for WISPs to expand their foot print commiserate with the data rate capabilities. C) That the FCC provide fast track tower approvals and the development of a national construction plan consistent with the National Building Code to be able to fast track tower construction.

But Mr. Feld, the NOI is a dead letter politically.

Public Knowledge is at it again. Writing white papers and having discussions on them. All well and good I guess, it keeps somebody employed in a bad economy. But in reality, this is like poking a whale with a bang stick. It does no good for the poker and makes the whale mad. Essentially the white paper in question, Breaking the Logjam:Some Modest Proposals for Enhancing Transparency, Efficiency and Innovation in Public Spectrum Management, suggests rearranging the deck chairs. (Besides the point that verbose titles were verboten when I went to high school.) But not all is lost, there was one glimmer out of the morass —

The Federal CTO, working with the NTIA and other federal agencies, should develop policies enabling and encouraging federal agencies to move from the current system of assigned spectrum allocations to a system leveraging new technologies to permit dynamic assignment to agencies on an “as needed” basis.
In essence, the federal government would transition from a system in which agencies hold the equivalent of a spectrum license to one where the federal government manages a vast pool of wireless capacity from which agencies may “draw” as needed.

The idea that the spectrum is a pool resource not carved up between the FBI, DEA, NSA, etc in small pockets. Much of which because of the utilization never gets used period. So that is a move in the right direction. But other suggestions —

• The NTIA and the Federal Communications Commission (FCC) should expand the cooperation required between the agencies by statute. In particular, the agencies should publish an annual joint spectrum plan based on the mandatory consultation between the Chairman of the FCC and the Administrator of the NTIA,2 and should clarify the “expedited” process mandated by statute for processing applications for mixed federal and non-federal use.
• The NTIA should take steps to improve opportunities for public involvement in its spectrum management decisions, and should launch its own e-government initiative, similar to the Reboot.FCC.Gov.
• The NTIA, the Secretary of Commerce, and the Director of the OMB should “zero base” federal spectrum use, requiring all federal agencies to reapply for spectrum allocations. Failure to reapply, and provide adequate detail on use, will result in elimination of existing spectrum allocation.
• The President should require all agencies to prepare a “spectrum budget” in the same manner they prepare a federal budget, assessing existing and future needs. The NTIA would serve as coordinator for these agencies and would provide technical support, assisted by the federal Chief Technology Officer (CTO) and the Office of Management and Budget (OMB).
• Based on these exercises, the CTO, with support from the NTIA, would assist agencies in upgrading wireless equipment and enhancing the use of spectrum resources for individual agencies, in order to enhance their overall missions.
• The NTIA and the OMB should conduct a comprehensive review of existing federal statutes to determine how private entities can make contributions to federal agencies to enhance federal spectrum efficiency and promote innovative use of wireless resources by the federal government. The review should also seek to establish ways to further enhance public transparency and account ability with regard to spectrum use.
• The NTIA and the FCC should work with state and local governments, and their trade associations, to find ways in which federal, state and local governments can enhance emergency communications and spectrum efficiency, and promote innovative uses of wireless technology at all levels of government.

The rest is merely paper shuffling, for paper shuffling sake for which someone will be issued a grant handsomely, pretty printed, shelved and forgotten in the matter of 18 months. Great work if you can get it. But it solves nothing and in the end just triggers a turf war among agencies in the whole matter.

What is lacking in this paper is the realization that technology renders most of the proposal moot. The glimmer out of the piece was the realization that spectrum is a pool to be utilized, not hoarded. But it does not go far enough. The technology exists today that CPE (Customer Premise Equipment) is capable of self allocation. With that capability in hand, all the other discussions are rendered useless. Poof.

Spectrum utilization by most entities are broken down into two components, infrastructure and ad hoc. Infrastructure being those facilities that have a long lived use of a band. Example being point to point wireless nodes interconnecting buildings. An example of the latter being tactical radios to be used by, say an FBI team for a mission. Regardless with spread spectrum equipment and a valid reservation system, on demand spectrum allocation is possible.Nay it is already being done by the DoD, so it is a reality.

So here is the ThridPipe Federal Proposal –

• Congress shall mandate that in 7 years that all federal wireless usage shall be self allocating spread spectrum CPE. Funding to be allocated to realize this end.
• The FCC is directed to a) Realign the ownership of spectrum to a single entity. b) Licensing is soft revoked, continued use but ownership transfers. c) That a drop dead date is issued for final revocation of license.
• The FCC is directed to issue an RFP for a) The development of infrastructure and ad hoc wireless CPE. b) The development of a spectrum reservation system for (a). c) Implementation of (a) across the federal footprint.

We are at the point, this is not a matter of technology, or a matter of discussion. It is a matter of the will to do it. Lets DO IT, not TALK it to death.

By a fair chunk of the Congress. Both Republican and Democrat. Fact there were more Democrats signing on. —

FCC chair Julius Genachowski got an unpleasant surprise from what he must have previously considered a friendly Congress yesterday in response to his attempt to impose Net Neutrality through regulation rather than law. One hundred eleven Representatives — 74 of them Democrats — signed two separate letters telling Genachowski that the FCC should not consider proceeding with new regulations without explicit direction from Congress. Democrats worried about the impact on jobs, while Republicans called the regulatory thinking “19th-century”:

Now why is a simple set of letters of considerable interest to the Chair of the FCC? Because my Dear Reader, the FCC is one of those few agencies whose actions and budget are controlled directly by Congress and not the Executive. It was set up that for fear of single control of the airwaves under the Executive. So the Chair cannot merely ignore this, for lack of a better term, a rebuke.

This a good thing? In our eyes yes. It sets a speed bump into the Faustian Net Neutrality that has turned into anything but that. It puts a monkey wrench into an explosion into what would be a massive growth in regulation and bureaucrats in a time when we should be paring such activities down. It also sends a reminder to the Chair that they are not in control of the FCC but Congress. Take it for what it is worth, but the Statists have lost a round in this latest kabuki theater in the beltway.

Read the whole thing here.

… Of lawyering — Know your facts before you make your case. Which pretty much sinks the Australian Internet censorship law. –

South Australia’s thin-skinned candy-ass politicians passed a law prohibiting any anonymous political commentary on blogs (but not “real” news-sources) prior to elections on penalty of a fine of AU$1250. Defending the measure, South Australia’s Attorney General, Michael Atkinson claimed that a poster on AdelaideNow, Aaron Fornarino, was a fictional construct created by his political opponents to smear him. Turns out that Mr Fornarino lives just down the street from Atkinson’s office. Humiliated, Atkinson rescinded the censorship law: “From the feedback we’ve received through AdelaideNow, the blogging generation believes that the law supported by all MPs and all political parties is unduly restrictive. I have listened. I will immediately after the election move to repeal the law retrospectively… It may be humiliating for me, but that’s politics in a democracy and I’ll take my lumps.”

The major foopah? Atkinson, the regional AG made the claim that the person posting on an Internet site lambasting him was not a real person but fictitious, made up by the opposition party. Problem? Yeah, the person exists and there are pictures to prove it. Much to Atkinson’s credit, he will move for repeal of the law after the major embarrassment.

Linky.

… In Hungary? Yeah I know, Ole Tux is just an OS. That is what I thought too. Still do by the way. But in Hungary a political party — Jobbik — has sprung up.:

We are going to implement open standards in the public sector and will promote the spread of open source solutions among the general public and among businesses. Under these directives, government and public sector documents can be stored only, in open document formats, on systems running open standards applications.

We are going to develop open standard interfaces, in order to encourage municipalities, the tax department, the banking sector and public offices to use open source solutions.

We are going to supply government funded and developed applications for municipalities, nation wide, to eliminate parallel and wasteful developments.

When both proprietary and open source software will be available with the equal functionality to accomplish a particular task, we will make the use of open source solutions, mandatory.

We are going to implement open standards in the school system and will introduce open source computing as a subject in schools, under the discipline of computer sciences.

That ladies and gentlemen is the Jobbik party platform. Sound wild? Well I will just direct you to Sweden where the Pirate Party has a foothold in Parliment after raising petitions and funds on the Pirate Bay file sharing suit. They now have over a dozen affiliated Pirate parties in the world. So it would not be far fetched at all.

Linky.

Previously we had pointed out that the Telcos can take care of their own. They have a revenue stream (well used to, it is getting a little frayed), that is mostly never ending. The resource is finite but better than what anyone else has. So why do they want to do this to their more lesser mortal peers? —

In the dead of night, just before the latest draft of the Stevens bill came out, a helpful Telco lobbyist inserted a little provision to stack the deck in the case of judicial review. Section 1004 of the Stevens draft now places exclusive jurisdiction for all decisions by the FCC in the D.C. Circuit. This includes not just network neutrality, but media ownership, CALEA, wireless issues, anything.

Why would anyone do that you ask? Because the D.C. Cir. is, without doubt, the most activist court in the land when it comes to pressing its vision of media and telecom policy. More than any other court, the D.C. Cir. can be credited with destroying hope of telecom competition in the United States by perpetually reversing and remanding the FCC’s efforts at rulemaking and enforcement until the FCC finally gave up and effectively deregulated. The D.C. Cir. is also responsible for vacating (eliminating by judicial fiat) the rule preventing cable companies from owning television stations where they have cable systems, and overturning much of the FCC’s cable and broadcast ownership limits. Finally, through the legal doctrine known as “standing”, the D.C. Crcuit has done its best to make it impossible for regular people to challenge FCC decisions or bring individual cases on antitrust grounds.

Source: WetMachine

Why? Well to make it more costly to litigate telecom policy. So if you are a small coop outside to Duluth and are being destroyed by some arcane rule your choice would be under this suggestion having to hire a high priced heavy weight from Georgetown.

There is something else that bothers me about this that has nothing to do with Telecom. Consistency. In the history of this country we have applied the mindset that one tries a case in the jurisdiction of either the defendant or the place where the infraction occurred. Even at appellate, you remand to the closest circuit district from which the original case issued. And NOW we are going to turn this on its ear? The system as envisioned has worked reasonably well, there is no need to change it at this late date.

This provision needs to be removed. Verizon can afford to get on a damn airplane like anybody else.

… but the jury is still out. A new group with a new website and mission is about to hit the wireless arena. The name of the group - Focus Driven. Their website is Focusdriven.org. Their mission, to raise awareness of the distracted driver –

Each year, thousands of families suffer the loss of loved ones needlessly at the hands of drivers distracted by their cell phones. Whether texting, using hands-free or handheld phones, these drivers not only put their lives on the line, but they risk killing others on the road.

FocusDriven provides victims of cell phone distracted drivers, and their friends and families, with an outlet for sharing their stories. We also provide those interested in this issue with opportunities to get involved.

FocusDriven can help you petition your state legislation; educate your friends, families and coworkers about the hazards of distracted driving; or share your story with state representatives to help support legislation for safer roadways.

FocusDriven supporters and advocates know, and many have experienced, the very real consequences of drivers distracted by their cell phones. We ask you to make the pledge to not drive distracted, share what you learn on our site with those you know and get involved to help make our nation’s roads safer.

Are the aims admirable? Yes. But it can be like anything else — unless moderation and common sense is applied then the spiral downward is a swift and sure one. Two examples to my point. MADD — mothers against drunk driving. Early on they had a very positive affect on drunk driving. But slowly the mission itself changed from one looking for results (which was the basis for their early success.), to one of success at all costs. Even when the results can be marginal at best and the overall community results unfavorable.

The second I can provide is bradycampaign.org. They too started out with a laudable goal to reduce gun violence. (The violence is the issue, not the gun, its just the instrument. But that’s a different story.) They have slowly morphed not into a gun violence advocate but a gun banning advocate. The lever of that transformation being the funding by various anti gun sub-groups. What I would envision is that Focusdriven.org would become over funded by a Telco PAC and then slowly twisted to a meek shell of its former mission. Don’t let that happen to you.

I wish them God speed. This is an issue that needs a societal response. There are times in life that do not require you to answer the phone. Driving happens to be one of them.

Linky.

That is what a 3 judge panel of the first District Court of Appeals just did in the case of Comast vs FCC. The Panel offered the ruling as memorandum, not binding, but telegraphing the Courts observations and if affirmed by the full bench sets the FCC on its ear. –

Federal appeals court gave notice Friday it likely would reject the Federal Communications Commission’s authority to sanction Comcast for throttling peer-to-peer applications.

The U.S. Court of Appeals for the District of Columbia Circuit suggested as much during oral arguments with the FCC and Comcast. The Philadelphia-based cable concern is appealing the agency’s 2008 decision ordering it to stop hampering the peer-to-peer service BitTorrent as a traffic-management practice.

The order was in response to complaints Comcast was sending fake signals to users of BitTorrent, a bandwidth-heavy protocol often used to pirate copyright content.

“You have yet to identify a specific statute,” Judge Raymond Randolph told an FCC lawyer regarding the legal authority to ding Comcast.

To be sure, Friday’s reaction to the appellate court hearing made it increasingly clear the Obama administration’s FCC has been preparing for a defeat concerning net neutrality (.pdf), one of the largest issues surrounding internet freedom.

The upshot of this memo? —

* Net Neutrality as it has been proposed since Chairman Martin’s tenure may not survive in its current form if it survives at all.

* That the FCC may not even have the authority to regulate in this area as no controlling regulatory clause has been found by the court.

* That the 30% rule fostered by the FCC on the cable industry is willful and capricious. The panel summarily vacated that baseline without standing in current rule making by the FCC itself.

* Has political implications beyond the scope of this blog.

In many ways we are right back to 2004 in regards to carriers regard to traffic management, FCC’s role in this issue and the very nature of Net Neutrality.

Linky.
Full Finding here.