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Posts Tagged ‘Net Neutrality’

Curious and Curiouser: As Economists’ Anti-Common Carriage (#NetNeutrality)/FCC Case Crumbles, Industry Advocacy Group Lawyers Threaten Armageddon

Just over a week ago, the International Journal of Communication published an article that I co-authored with Jeff Pooley, “A Curious Tale of Economics and Common Carriage (Net Neutrality) at the FCC”—a reply to another IJOC article published in late March by Gerald Faulhaber, Hal Singer and Augustus Urschel that had claimed that economics was “curiously absent” at the Obama-era FCC.

In that paper, the authors hold up the FCC’s 2015 landmark ruling to reclassify broadband internet access services as common carriers (the historical bedrock principle that informs what most people now refer to as ‘net neutrality’) as exhibit A in support of their claim. They also point to a raft of other decisions over the past half-decade that addressed high levels of concentration in key segments of the mobile wireless, broadband internet access and TV industries as further evidence of the supposed triumph of populist politics over economic reason at the Obama-era FCC. Finally, they claim that the FCC’s refusal to file cost benefit analyses to justify any of these actions clinches their case about the “curious absence of economics at the FCC”.

The claims became a big deal after the Trump Administration’s new FCC chair Ajit Pai repeatedly cited them to justify his bid to roll back the common carrier rules and to create a new Office of Economics and Data (see here, here and here). Pundits, think tanks and telcos, not just in the US but in Canada and the European Union too, have pointed to the “curious absence” charge in their support of Pai’s rush to remake the regulatory landscape in the image that they have wanted all along: no common carrier rules and regulations premised on the assumption that communication markets are fiercely competitive.

As we show in our reply, however, the authors’ claims about the “curious absence of economics” are baseless. Our review of the FCC’s public docket for the Open Internet Order, several blockbuster mergers and acquisitions, roundtables, seminars, workshops, and so on shows that the public record of the Commission’s work is stuffed full with the contributions of economists—including those of Faulhaber and Singer. A better interpretation, we argue, is that, having lost many hot-ticket regulatory items in recent years, the authors have thrown up a dubious pretext for what amounts to a regulatory do-over in which they hope to score big under the Trump regime.

Not only does the paper’s main claim fall apart upon inspection, its undisclosed origins as a commissioned piece of policy advocacy runs afoul of scholarly publishing norms and ethics. Indeed, the paper is a model of information laundering, whereby paid policy advocacy prepared for an industry-friendly group—in this case, CALinnovates—is put on the public record in two separate FCC proceedings (see here and here), then recycled as an original article in a prestigious, peer-reviewed scholarly journal with no acknowledgement of these origins, and finally recycled back into the policy process on several occasions by Pai to justify his sprint to reverse many of the signature accomplishments of his predecessor—all with the telcos, consultants, industry-friendly think tanks such as the American Enterprise Institute, etc., cheering him on from the sidelines, both within the US and beyond.

Legal Threats

We had plainly struck a nerve. After a draft of our reply was shared with the article’s authors in late May, they started to backfill their missing disclosures (compare the lack of any disclosure in the original March publication, the terse one-liner that followed in mid-April after we called them out on Twitter, and a fuller but still wholly inadequate disclosure in June). And instead of dealing with any of our substantive criticisms about the complete lack of any evidence to support their main claim about the alleged “curious absence of economics” at the FCC, the authors along with the executive director and PR rep for the industry-friendly advocacy outfit, CALinnovates, wrote weak replies that protested loudly and threw a lot of mud, but did absolutely nothing to shore up their allegations. You can see those replies here, here and here.

As our article was being prepared for publication, CALinnovates also lawyered up and sent a barrage of letters to the editors of the International Journal of Communication—and its host, the University of Southern California. The legal threats—explicit and implied—ramped up in each letter (see here, here, here, and here).

In the first missive, the group’s attorney charged that the “academic portion” of our paper—those pages that constitute the bulk of our article and that challenge the original article’s sidelined-economists storyline and which provide copious details refuting that claim—is merely a “vehicle to serve incorrect and potentially libelous messaging to the public” about the group. He asked the journal to disclose our funding for the article (we have none), and to remove the CALinnovates discussion altogether.

The second letter, sent a week later, detailed “concerns” about our reply and warned that its “potentially libelous rebuttal,” the lawyer wrote, “seeks to tarnish the reputation of CALinnovates,” an organization whose “only role in this imbroglio was the funding of the [original] paper.” Quoting liberally from the journal’s code of ethics, the letter lays out 13 charges. “Winseck and Pooley,” he wrote, “have weaponized their rebuttal for the purposes of their own mischievous political goals.” The letter accuses us of serving “corporate interests,” which we—so said the attorney—failed to disclose.

Another week, another letter, this one from a second firm (“litigation counsel to CALinnovates”) and delivered not just to the editor but to the general counsel of USC, where the journal is hosted. It is, this attorney wrote, “extraordinarily surprising and deeply disappointing” that USC “would even consider publishing what appears to be a bias-motivated hit piece”. The letter concludes by warning USC that it would “expose itself to significant liability” by publishing our reply.

To its credit, the journal stood its ground, asking us to furnish documentation on just those errors of fact flagged by the lawyers. We replied with a point-by-point accounting. “Neither of us,” we wrote, “has ever received a single cent of funding for this reply or for work whatsoever from any parties.” Bluster aside, the innuendo and legal threats had the opposite effect, strengthening our resolve to publish the reply. Sponsored surrogacy like the “Curious Absence” paper needs ummasking now, before the Pai-led FCC recasts the evermore internet-centric communications universe in an industry-serving mold. If Pai succeeds, it will be hard to go back—hard, that is, to get the regulatory toothpaste back in the tube. At that point, exposing the industry scholar-lobbyist network’s campaign would be (merely) academic.

Information Laundering, Economists and Ajit Pai’s Race to Roll-Back the Obama-era FCC’s Net Neutrality Rules

Today, the International Journal of Communication published my reply (co-authored with Jeff Pooley) to a recent paper in the same journal by economists Gerald Faulhaber, Hal Singer and Augustus Urschel. That paper has become especially influential after the Federal Communication Commission’s Chairman Ajit Pai repeatedly called on its “independent” evidence to justify his plan to roll-back common carriage (net neutrality) rules for internet access providers and to create an Office of Economics and Data. As our reply shows, the paper contains undisclosed ties to the telecommunications industry and is riddled with factual errors. Most importantly, its central claim that economics and economists have been “curiously absent” at the FCC in recent years is simply incorrect.

Faulhaber, Singer and Urschel’s “The Curious Absence of Economic Analysis at the Federal Communications Commission” is a prominent example of how industry-friendly think tanks have commissioned academic economists, legal scholars and others to flood the ‘marketplace of ideas’ with dubious ideas and ‘white papers’, often without disclosing these origins. These efforts, in turn, give a veneer of academic legitimacy to Pai’s sprint to reverse not just the net neutrality rules adopted two years ago, but a raft of measures that deal with concentration in the broadband, mobile wireless, cable TV and broadcasting markets, broadband privacy and pricing, and on and on. If the rollback is successful, Pai’s FCC will deliver a regulatory agenda beyond the biggest telecom-ISP and media companies’ wildest dreams.

In their paper, Faulhaber, Singer and Urschel purport to tell the story of the rise and fall of economic analysis at the FCC. They hold up the Commission’s landmark 2015 decision to reclassify broadband internet access services as “common carriers”—the bedrock historical principle underpinning what most people call “net neutrality”—as Exhibit A in support of their “curious absence” allegation. The authors also point to the FCC’s alleged failure to conduct cost-benefit analyses as further evidence of the agency’s supposed indifference to economics. Finally, the authors singled out John Oliver’s 2014 late-night rant on net neutrality for triggering “four million angry letters”. The episode exemplified, in their telling, the triumph of unruly populism over economic expertise—a gaping wound that needs to be redressed, and fast, they urge.

Straight away, however, the article’s main claim that economists have next to no influence at the FCC struck us as preposterous. This must be, we thought, the first article ever published to claim that economists don’t have enough influence on federal policy making. The story of social science and U.S. policy since World War II just is the story of economics (see, for example, Bernstein, 2004 and Franklin, 2016). More to the point, economists have been extensively—and disproportionately—involved in FCC rule-making for decades, this one included. What could the authors possibly mean?

Adding to our doubts, we quickly discovered that a longer version of the same paper had been submitted to the FCC’s official docket last summer, not once but twice, by CALinnovates—an “advocacy” group with deep ties to the telecommunications industry (see the submissions to Broadband Privacy and Business Data Services proceedings). In other words, the paper published in the IJoC originated as a white paper commissioned by a telecommunications industry advocacy group but without disclosing any of this background do the journal’s editors or readers.

Digging deeper, it soon became evident that the paper’s authors have been especially active in many hot-button issues before the FCC in recent years, including its landmark Open Internet Order in 2015—the main object of their criticism. They have also cast doubts on how the FCC has dealt with blockbuster mergers and acquisitions and sky-high levels of concentration in the mobile wireless market, backed an unsuccessful legal appeal of those 2015 net neutrality rules, and lent their work to a volley of actions now underway by the Trump administration’s new FCC Chair, Ajit Pai (see here and here).

In April—just five days after the peer-reviewed article appeared—Pai gave a major speech at the Hudson Institute lamenting that the views of economists “have become an afterthought.” Citing the paper (but with no mention of its provenance), Pai announced a new FCC Office of Economics and Data (OED). The authors’ “curious absence” claim supplied the warrant for creating the OED. Pai soon issued his fateful plan to roll back net neutrality regulations—set to take effect in a matter of weeks—and again invoked the authors’ work as a warrant for taking the course that he has (see here and here).

In short, an industry front group commissioned and funded research that was put on the public record in two FCC proceedings and then published in a leading academic journal. Soon it was cited by the country’s top policy-maker to justify his industry-friendly regulatory rollback. We contend that this is a clear case of information laundering.

Murky origins aside, does Faulhaber, Singer and Urschel’s core claim that the FCC has “abandon[ed] the dismal science” (p. 1215) hold water? Our reply argues an emphatic “no”. Our review of FCC workshops, roundtables, working papers, seminars, reports, dockets and rulings—including during its landmark 2015 Open Internet Order and several blockbuster mergers and acquisitions—provides detailed evidence to refute the paper’s core “curious absence” charge. Indeed, the public record is stuffed full with economists’ contributions—including those of the authors, though they mention none of it. As we show, the agency has actually been working in earnest to bolster, not sideline, economic analysis in recent years—a conclusion in line with other researchers’ findings (e.g., Copeland, 2013).

Moreover, while the authors charge that the FCC’s cavalier disregard for sound economic judgement is revealed by the fact that it does not do proper cost benefit analyses, the truth is that there are nineteen federal, independent regulatory agencies and none of them does such analyses along the lines they call for—except the Consumer Financial Protection Bureau (and for reasons specific to its own creation in 2011 in the aftermath of the financial crisis of 2008). While there have been calls since at least the Reagan Administration for things to be otherwise, those calls have been rejected because to concede to them would undercut regulators’ independence. In short, despite the authors’ misleading suggestion to the contrary, the FCC is not unique in this regard and as a matter of fact all federal independent regulatory agencies except the CFPB report to Congress (see Breger & Edles, 2015; Sunstein, 2013).

When Faulhaber, Singer and Urschel bemoan the “curious absence” of economists at the FCC in the IJOC paper, what they’re really objecting to is their own string of policy losses across several high-profile issues in recent years. What they want, in effect, is an across-the-board do-over on these issues. Their paper—with its serial non-disclosure—is already helping that effort. Indeed, the authors have been fighting on this project’s front-lines for years and their IJOC paper and its undisclosed precursors have been weaponized for this campaign.

The stakes couldn’t be higher. Pai is sprinting to reverse the most prominent accomplishments of the Obama-era FCC—and leaning on Faulhaber, Singer and Urschel’s paper to legitimate his efforts. The IJOC paper, and its undisclosed predecessors, also serve as the touchstone for op-eds across think tanks and their blogs as well as the business and popular press. The authors’ appeal to the authority of economics, in short, cloaks a full-throated political project designed to remake communications markets along the lines that incumbent telecommunications, broadband internet, and media industries have desired all along.

If the lessons of the last century are a guide, the outcomes of these battles could shape the emergent internet- and mobile wireless-centric communications universe for many decades to come. Moreover, the fact that much the same charges are being lobbed at regulators in Canada, the EU, India and other countries underscores the point that while the specifics of the US situation—and the FCC—are unique, the lessons to be learned are far more global in scope.

Legal Threats

We plainly struck a nerve. After a draft of our reply was shared with the article’s authors in late May, the journal’s editor received a barrage of letters from attorneys representing CALinnovates, the telco-linked group. The legal threats—explicit and implied—ramped up in each letter.

We will address more of the substance of these letters in a subsequent post in short order but for the time being we’ll close by saying that, to its credit, the International Journal of Communication stood its ground, asking us to furnish documentation on just those errors of fact claimed by the lawyers. We replied with a point-by-point accounting. And on their claim that we ourselves had written the “hit piece” under hire to either Free Press, Open Media, Mozilla or Google, we had a blunt response of our own: “Neither of us has ever received a single cent of funding for this reply or for work whatsoever from any parties.”

Bluster aside, the innuendo and legal threats had the opposite effect, strengthening our resolve to publish the reply. As a general matter, sponsored surrogacy like the “Curious Absence” paper needs ummasking because it tries to harness the academic credibility of scholarly, peer-reviewed publishing for private gain—typically without disclosing either the interests or processes in the information laundering behind such efforts. And if such critiques are necessary in general they are acutely so now before the Pai-led FCC recasts the evermore internet-centric communications universe in an industry-serving mold. If Pai succeeds, it will be hard to go back—hard, that is, to get the regulatory toothpaste back in the tube. At that point, exposing the industry scholar-lobbyist network’s campaign would be (merely) academic.

David Wins Against Goliath: CRTC Bolsters “Net Neutrality”, Limits “Zero-Rating” & Strengthens Local TV

Today’s trilogy of CRTC decisions on “network neutrality”, local TV and simultaneous substitution are a huge win for Canadian citizens. They reinforce Canada’s network neutrality regime while backstopping local, over-the-air TV as a viable alternative to cable and satellite and as an important source of news and information.

Of the three decisions, the most important is probably the Mobile TV ruling. The decision responds to a complaint filed by Ben Klass with the Commission in late 2013 about Bell’s Mobile TV offering that allows Bell Mobility subscribers to access 10 hours of television programs for $5 per month while watching the same amount of TV on your wireless device from the CBC, YouTube or Netflix, for example, would cost up to $40 – an 800% difference. Klass’s complaint expanded in early 2014 after the Public Interest Advocacy Centre raised concerns about Rogers and Videotron’s Mobile TV services on much the same grounds. The CRTC then wrapped them into one proceeding. Today’s major decision supports Klass and PIAC’s claims.

In each case, watching television programs delivered over the internet on your mobile device from sources outside one of the carriers’ TV packages counted towards your data caps, while those inside their Mobile TV offerings did not.

Recognizing that they were likely fighting a losing battle, Rogers folded on the case last summer and Videotron began to phase out its preferentially priced Mobile TV service at the end of 2014. Bell soldiered on, however, claiming that despite being delivered over the internet and the same wireless networks as any other data, video, voice or internet services that subscribers might use, it’s Mobile TV service was not a telecom or internet service at all.

According to Bell, its Mobile TV service is a broadcasting service, and thus outside the reach of the charges that Klass and PIAC raised. Moreover, far from this being a bad thing, its Mobile TV service is making substantial contributions to the policy aims of the Broadcasting Act, Bell argued.

The CRTC’s decision resolutely rejects that claim. While the decision refers to Bell and Videotron’s Mobile TV services, since the latter has been phasing out the version of its service in question since the beginning of the year, the biggest impact of the decision will fall on Bell.

With respect to whether Mobile TV services are telecommunications or broadcast services, the Commission was crystal clear:

Bell Mobility and Videotron are . . . providing telecommunications services in regard to the transport of their mobile TV services to subscribers’ mobile devices, and are therefore subject to the Telecommunications Act (para 35).

In addition, the Commission is clear that far from being a good thing for Canadians and the aims of the Broadcasting Act, the services work a:

 . . . disadvantage to consumers in accessing other Canadian programs on their mobile devices, and . . . could not be said to further these [the Broadcasting Act] objectives (para 60).

Furthermore, Bell and Videotron’s claims about their Mobile TV services being good for Canadians lacked “quantifiable evidence to back the magnitude of those claims” (para 39).

Having found that the key issues revolved around telecommunications, the CRTC than turned to the heart of the matter: were the carriers giving their own Mobile TV services an advantage and, if so, was that advantage unreasonable? Again, the Commission is unequivocal. By charging one rate and exempting their own services from their data caps while charging much higher rates and applying data caps to all others, Bell and Videotron are giving themselves an unfair advantage.

Here’s the centerpiece of the decision in this regard:

Bell Mobility and Videotron, in providing the data connectivity and transport required for consumers to access the mobile TV services at substantially lower costs to those consumers relative to other audiovisual content services, have conferred upon consumers of their services, as well as upon their services, an undue and unreasonable preference, in violation of subsection 27(2) of the Telecommunications Act. In addition, they have subjected their subscribers who consume other audiovisual content services that are subject to data charges, and these other services, to an undue and unreasonable disadvantage, in violation of subsection 27(2) of the Telecommunications Act(Para 61).

Crucially, in making this decision, the CRTC saw the issues being raised by Klass and PIAC as something of a litmus test case, a test whose resolution would hold much in store for the evolution of the internet and the converging media ecology in the future. Again, as it says,

the preference given in relation to the transport of Bell Mobility’s and Videotron’s mobile TV services to subscribers’ mobile devices, and the corresponding disadvantage in relation to . . . other audiovisual content services available over the Internet, will grow and will have a material impact on consumers, and other audiovisual content services in particular. . . . [I]t may end up inhibiting the introduction and growth of other mobile TV services accessed over the Internet, which reduces innovation and consumer choice (para 58).

In short, the decision responds to current realities while looking to the future. It took the opportunity delivered up to it by a hard-working and careful student, Klass, and the additional effort by PIAC, to nip a problem in the bud. The fact that the issues raised complex issues today as well as for the years, even decades, ahead, also helps explain why this decision was more than a year in the making rather than the usual four months or so.

The Mobile TV decision effectively limits zero-rating in Canada, a practice where some internet content services pay to obtain fast lanes and exemption from carriers’ data caps. Doing so reinforces Canada’s strong “network neutrality” rules and places it shoulder-to-shoulder with other countries where zero-rating has been banned (e.g. Netherlands, Sweden, Chile) or discouraged and not practiced by wireless companies (e.g. Norway, Finland, Sweden, Estonia, Lithuania, Latvia, Malta and Iceland).

The upshot is an unambiguous win for strong “Network Neutrality/open internet” rules, including their unambiguous application to wireless internet access. As Blais put it, “the Mobile TV decision is all about Canadians having fair & equal access to content of their choice on internet. There will be no fast lanes & slow lanes”. It is about keeping control over what people access through the internet in their hands, not under the editorial control of ISPs and telecoms companies.

Three other things about the Mobile TV decision stand out.

First, it’s a message that Canada can send, with love, to the United States as the FCC gets set to decide in the next month on many of the same issues to replace its relatively weak ‘Open Internet’ principles that were tossed out by the courts in last year’s Verizon decision. With strong encouragement from Obama, the FCC is widely seen as leaning toward reinstating Title II common carrier classification for all broadband internet access providers – wireline, cable, wireless – and restricting zero-rating practices. This will reverse decisions taken in 2002, 2005 and 2007 under the Republican controlled FCC that redefined high speed internet access by cable, DSL and wireless as ‘information services’ and, thus, beyond the reach of the regulator.

Second, the CRTC decision rests entirely on the common carriage principle at the heart of the Telecommunications Act (namely sections 27 and, less so, 28) rather than its so-called network neutrality rules. This is a good thing because it returns the politics of the internet to sturdier ground, i.e. the centuries old and battle-tested grounds of common carriage versus the woollier notion of network neutrality.

Third, the concurring opinion of CRTC Commissioner Raj Shoan at the end of the decision is a must read. His ruminations on the ‘cone of silence’ around the issues raised by the Mobile TV proceeding reminds us that in an industry dominated by a handful of massive vertically-integrated companies who control access to distribution networks, content and audiences, a pervasive fear seems to have settled in amongst independent TV broadcasters, creators and others that appears to have kept them from stepping forward. It reminds us that the Canadian media industry is a tight and closed, if not so cozy, community where independent voices step forward at their own peril.

As Shoan observes, when “students, not-for-profits and charities have to contend against the deep pockets of large, national, vertically integrated entities in order to bring to light relevant issues of public interest without the support of affected parties (i.e. Canadian broadcasters)”, we are in trouble. The CRTC looked at that reality today squarely in the face and made three bold decisions that go someway to addressing the issues. We can be thankful to smart and interested citizens such as Ben Klass and public interest groups like PIAC for lighting the spark and all the hard work that led to today’s decision, and for groups such as Open Media for keeping these issues in the public eye. For all those who have stood as defenders of the status quo, indeed, often as their mouthpieces, it should be a message.

A few quick words on the other two decisions regarding keeping local television alive and simultaneous substitution.

First, Blais made it clear that maintaining local, over-the-air television is important to Canadians, as citizens, not just consumers. Why? Because that is where many of us still get a great deal of our news and information from. Blais did not mince words: the major TV companies have obtained enormous privileges, and it is time to meet their obligations. “An informed citizenry cannot be sacrificed on alter of corporate profits & debt reduction”, he intoned, in an implied reference to the steady flow of cut-backs and journalist lay-offs in an industry that has been allowed to bulk up through mergers and acquisitions on the promise that synergies would deliver benefits, not just to the corporate bottom line but to all Canadians. It’s time to deliver.

Local TV also needs to be kept alive because it provides a realistic alternative to cable, satellite and IPTV providers who have consistently raised prices far in excess of the rate of inflation. This is especially so because, as Greg Taylor, Steven May and others from Ryerson University, have made clear, Canada has recently completed the switch over to digital over-the-air television. The benefits of this now need to be nurtured rather than given a still birth by those whose loyalties are, at best, split between seeing things through versus protecting their cable, satellite and IPTV distribution networks, i.e. the same entities that own most of the local TV stations and the biggest cable, satellite and IPTV companies in Canada are one and the same: Bell, Shaw, Rogers and Quebecor. Brandishing updated bunny-ears as a prop, Blais encouraged Canadians to think about them as a viable option that was both free and of higher quality in terms of picture clarity.

There will be no new revenue stream from fee for carriage of local TV stations, a cornerstone of Bell’s submission to the Talk TV hearings. However, neither will one of the cornerstones that have supported the commercial viability of local TV since the 1970s be taken away: simultaneous substitution that allows Canadian broadcasters to substitute their commercials on US signals airing the same programs and carried by cable and satellite companies in Canada. The policy is a massive gift that delivers about a quarter-of-a billion dollars a year to the industry. This was a “big ask” for Bell, Shaw, Rogers and other television companies and, for all intents and purposes, they got it today from the CRTC, with the exception for the SuperBowl starting in 2016.

In sum, today’s CRTC decisions are bold. They send a clear message in support of an open internet, broadly interpreted to cover mobile wireless, cable and wireline networks. TV is not dead, and in fact, the evolution of the two are fundamentally intertwined, and need to be thought of as such. The CRTC’s decisions go a long way to doing just that. The decisions, in particular the open internet, Mobile TV and future of local TV parts, underscore the decisive role of independent voices, and the importance of listening to them, rather than just to incumbents and far too many scribes (but certainly not all) who think that relaying the views of rival media giants on a particular issue, and a financial analyst or two, to the Canadian public constitutes ‘balanced’ reporting.

Comcast versus Common Sense: New Frontiers for Net Neutrality?

A new brouhaha has broken out in the U.S. over actions taken by Comcast that give its television and video services delivered via Microsoft’s Xbox a free pass, while still applying bandwidth caps to rival over-the-top television services such as Netflix, Apple TV, HBO Go, etc. It’s the latest frontier in the network neutrality disputes in the US.

The act may not breach the formal rules of network neutrality set out by the FCC in 2010, states Stacey Higginbotham, but it certainly seems to breach the spirit of network neutrality, she implies. Others such as Public Knowledge and the Free Press are much more forthright in the condemnation of the move, but are still holding fire while building a legal and regulatory case.

Higginbotham argues that, technically speaking, the FCC’s 2010 Network Neutrality rules allow Comcast to set aside portions of its networks for managed services, and therefore Comcast’s deal with Microsoft to stream tv and video to the Xbox without caps while applying them to everybody else is probably just fine.  She may be right.

The argument is not unusual. It is part of the incumbents’ arsenal. It is exactly the argument that Mirko Bibic, Bell’s chief regulatory pitbull, used last year when justifying why Bell’s IPTV services won’t count to the infinitely more tight-fisted bandwidth caps in Canada while for everybody else distributing video online it would.

But to get back to the Comcast/Microsoft Xbox case presently at issue, I wonder if the governing set of rules is not the 2010 Open Internet order, as some seem to be fixing on, but rather the “Comcast Network Neutrality Rules” that were fleshed out with much greater precision and sense of specificity when the FCC approved the Comcast-NBC Universal take-over last year?

While many, including then commissioner Michael Copps, have argued that the deal was a travesty and a sop to the new integrated corporate media titan, looked at from a Canadian and international comparative vantage point, the Comcast NBC-Universal deal was actually quite a big thing. The FCC (2011a) and Department of Justice asked for, and got, quite a lot.

The regulator made it crystal clear that it thought that “the harms that could result [from the take-over] are substantial” (p. 3). Among the conditions of approval, Comcast accepted several fairly tough demands that are directly relevant to the case at hand.

According to the “Comcast rules”, any Comcast service involving “caps, tiers, metering, or other usage-based pricing shall . . .”:
1. “. . . not treat affiliated network traffic differently from unaffiliated network traffic” (p. 38).

2. offer the same facilities and capabilities to others on commercially equivalent terms(p. 38);

3. insure that even its set-top boxes adhere to the “broadband Internet access service rules” (pp. 38-40).

Arguments over whether or not ‘managed services’ can be usefully and fairly segregated from the rest of an integrated broadband network media ecology can be a bottomless pit of contention and strategic manipulation, and it is indeed true that the FCC’s Open Internet rules of two years ago side stepped the quagmier.

The Comcast decision, however, was dealing with the specifics of a monumental corporate transaction and in that more circumscribed context, the specifics of network neutrality rules were brought more sharply into focus. Thus, even if having been battered in the courts for the past decade and the FCC’s own prevarication, the network neutrality rules are not dead.

Von Finckenstein, the Internet and Dr. Suess

I have always liked Dr. Suess.  Indeed, my wife and I both like him a lot.

Here’s a great remix of the ol’ guy, with the CRTC Chairman Konrad von Finckenstein’s take on the pay per model model of the Internet providing the backdrop.  It’s a great spoof of a bad scheme that is fast becoming stuck to von Finckenstein’s name in Canada. It is his to shoulder, but not alone, as I argue in my last post.

I think this ditty below is funny and a fabulous addition to the public discussion right now.  Imagine, a ‘public discussion’ about telecom and internet policy? Who woulda thunk it? This is a major accomplishment. The Open Media people, and those like Jean-Francois Mezei, among many others, have kept the issue alive.  The latter’s Petition is an excellent read, and a bold move.

There are some, though, that would love to disband the CRTC.  With a zillion qualifications, I think that would be a huge mistake. I also want to say that I think the Dr. Suess ditty below plays too easily into the ‘loathe the CRTC’ crowd.  As all my writing indicates, and as all my experience with them tells me to the core of my bones, there is much to loathe at the CRTC. However, that is not enough.The CRTC’s been set-up to fail. Successive Liberal and Conservative Governments have continuously meddled in its affairs by Order-in-Council. That has become particularly pronounced under the present government.

I’ve been thinking a lot about Thomas Frank’s The Wrecking Crew the last few days. It’s a basic tale about the US, where he suggest that the primary purpose of taking over government is to, ahem, wreck it.  It describes the scenario playing out at the CRTC, I think, as rule by Cabinet Directive becomes the norm rather than a government’s intermittent prerogative.

The UBB’s being pegged on Konrad, and there’s no doubt that he’s an enthusiastic supporter of it. The CRTC 10 years ago said that bandwidth caps and prices are excellent ways of “disciplining” users. They were right. The key questions, though, are whether the CRTC and ‘the State’ should be in the business of disciplining people?  The second point is that there’s a difference between the CRTC that uttered the words to this effect, and the one now that is gung-ho about implementing them, backstopped by Government orders to “rely on market forces to the maximum extent possible”.  Alice in Wonderland never seemed closer in light of the utter lack of competition in Canada.

Okay, enough, here’s the Seussification of KVF, Konrad von Finckenstein.  I found it at P2PNet site.  Enjoy, and spread it round:

The Finckenstein Who Stole The Internet ,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.,.

Then the Canadians, young and old, would sit down to download. Or so I’ve been told.
And they’d download! And they’d download!
And they’d DOWNLOAD! DOWNLOAD! DOWNLOAD! DOWNLOAD!
They would start on free YouTube, and next move to Netflix, a cheap rental beast.
Which was something the Finckenstein couldn’t stand in the least!
And THEN
They’d do something he liked least of all!
Every Canadian down in Canada, the tall and the small,
Would figure together, or sometimes alone, the Internet is an alternative to cable, satellite and yes, even phone!
They’d stop using their expensive Bell services. And the Canadians would start ditching and switching all month through!
They’d switch! And they’d switch!
AND they’d SWITCH! SWITCH! SWITCH! SWITCH!
And the more the Finckenstein thought of the Canadian-Internet-Switch
The more the Finckenstein thought, “I must stop this whole thing!
“Why for ten years I’ve put up with it now!
I MUST stop the Internet from being!
…But HOW?”
Then he got an idea!
An awful idea!
THE FINCKENSTEIN
GOT A WONDERFUL, AWFUL IDEA!
“I know just what to do!” The Finckenstein Laughed in his throat.

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