Memorial Day Thanks

Thanks

Mr. Scott Goes to the State Department

Broadcasting & Cable reports that Ben Scott is leaving the radical outfit, Free Press, for the (hopefully not so radical) U.S. State Department.  There, he will advise the State Department on “innovation policy.”

Hmmm…

Of all the times I have read or heard him speak, the one moment that sticks out in my mind most was an odd exchange five years ago with Senator Byron Dorgan on S. 2686 (regarding this), the 109^th Congress’ attempt to impose stultifying Net Neutrality mandates on network providers.  I say odd only in that, if you don’t know how hearings work, questions are scripted.  Senators pitch softball questions to favorable witnesses to back up the truths asserted by the inquisitor.  For the Democrats on hand, Scott was the “home team” during a hearing run by Republicans (they still had the Congress and could control the hearing agenda). 

In the following exchange before the Senate Commerce Committee on May 25, 2006, Senator Dorgan was questioning Scott on his organization and its nascent grassroots efforts to get Net Neutrality passed into law.  The odd part is just how bold the “truth asserted” was.  Namely, it was a naked warning of sorts – i.e., if Congress doesn’t pass Net Neutrality mandates into law, brute majority force will be used to do so instead.     

DORGAN: Mr. Scott, your organization has accumulated a pretty impressive group of interested parties and organizations. Tell me what your intention is with those groups.

SCOTT: Well, our intention is to keep them up to speed as to the decision-making process here in the Congress, keep them informed about what the issues mean to them as consumers and as small-business providers, and as organizations who have millions of members across the nation, how the future of the Internet will affect them.

DORGAN: And what are the consequences if the Congress says, “You know what? Let’s do nothing and, whatever happens, happens out there”? What are the consequences for all those interests?

SCOTT: I think they’ll be universally negative. And I think that the hundreds of thousands of people that are currently engaged will become tens of millions, and we’ll suddenly see a revolt on the Internet the likes of which has never occurred before (emphasis added).

To the Free Press’ credit, they have quite a network of “grassroots voices.”  No one’s quite sure who really funds them or how they developed such numbers so quickly, but I digress.  One thing that has become apparent over this span of time, however, is that they are a crude, blunt force to be reckoned with.  Just go to Twitter and search hash tags #FCC, #broadband and #netneutrality to see some of their handiwork.  It litters those commons.

Their efforts – aided by the Democratic party, special interest groups MoveOn.org and Public Knowledge (among a litany of others) and, oh yes, many in the press – has had an effect.  The FCC’s “Third Way” looks an awful lot like what Ben Scott has trafficked all these years.  And, leading Democratic voices on this issue in the House and Senate appear ready to begin work, updating the Communications Act, ostensibly to help further these goals, too (though, this looks like an iffy prospect if a number of other Democratic House members have their way).

Said Scott at that May hearing four years ago – “It is impossible to ignore that the cozy duopoly of telecom and cable companies that control residential broadband markets will not use that power to discriminate against the content and applications providers.”

Hooray!  Protect the “little guy” on the Internet…er, with 75-year-old regulations…that resulted in the MFJ.

Hmmm…

Thankfully for American consumers, S. 2686 didn’t go anywhere.  And there’ s good reason for that.  We have more innovation, more voices, more network and core innovation than ever before.  Scott’s pessimistic view of the marketplace – the impossibility of it all – well, it actually works to serve Americans. Without stifling regulations. 

Go figure, Ben. 

One hopes that as “innovation policy advisor,” Scott leaves this baggage well behind.  He is now an official representative of capitalist America.  

That means the free marketplace, not central planning, is how America guides and benefits the world; there are no “positive externalities” for stealing copyrighted material; legitimately patented ideas deserve respect and unwavering protection; innovation, fostered through private property risk and expectations, is just as good (or better than) “free-culture” innovation; network innovation is as important (or more so) than edge innovation; and, perhaps most importantly, we are a nation of laws – not “consensus” created through brute force, bought majorities.

Good luck, Ben.  You’re going to need it.

Abolish the FCC and Other Fun Thoughts

Just the other day, leaders from the House and Senate said they planned on updating the Communications Act.  Maybe they’ve finally started listening to us – we proposed doing this back in 2005, with PFF’s Digital Age Communications Act (DACA).  Or, perhaps the FCC’s so-called “Third Way” doesn’t look like the “no-brainer” that the agency spun in its press releases.  Well, whatever their intentions may be, it certainly couldn’t arrive at a better time.    

The framing is all important, of course.  Art Brodsky of Public Knowledge (ostensibly one of the groups “writing” the next Act) says Americans shouldn’t worry about the FCC’s “Third Way.”  In his view – “The government is not taking over the Internet. What the government is doing is engaging in traditional consumer protection, traditional regulation of a telecommunications service that will get people to the Internet.”  PK seems happy with this model – whether done at the FCC, or at Congress’ hands. 

Hmmm…Getting people to the Internet?  Traditional, simple stuff.  Sort of like strolling to the store, or peddling to the park.  Or, like in childhood, making a call from tin cans and string – which is what’ll result if PK and their ilk have their way.

The biggest part of this exercise remains the administrative box we cannot seem to live without.  Why does the FCC, or any ever-engorging Code of Federal Regulations rule maker, have to mediate success.  This is 19^th Century thinking for 21^st Century networks – how dated. 

The DACA approach represents a middle-ground proposal, which seeks to work within current federal regulatory constraints to reduce innovation-killing regulations.  I do not want to belittle that considerable proposal.  Still, in my estimation, it does too little to reduce the regulatory sclerosis that is the FCC.  So, I propose something more radical, along the lines of a 1995 PFF paper, entitled “The Telecom Revolution – An American Opportunity,” by Drs. George Keyworth, Jeffrey Eisenach, and Thomas Lenard.  Like the 1995 paper, my plan would take a more functional analysis toward government’s meddling in our digital revolution. 

Buh-bye, FCC – Consumer protection becomes new touchstone

The first thing I’d do is “dynamite” the FCC, once and for all eliminating the vestiges of the abolished, 19^th Century, Interstate Commerce Commission, the first “independent agency” which morphed into the FCC itself in 1934.  The Communications Act’s titles would thus be cast like the Diaspora across the lands.  Where issues arise, common law / property law (as proposed by Peter Huber in his “Law and Disorder in Cyberspace”), marketplace guidance, the evolution of technology tools, consumer education tools and empowerment, industry best practices, and present competition policy enforcement (based on actual, not conjectured, consumer harm) would address disputes and concerns.  Anything that touches the network is the network, and consequently, interstate in nature.  While federal jurisdiction would predominate, fair trade practices would still be dealt with in the bifurcated manner they are now – state and federal.    

Make no bones about it:  Title-based application of the Communications Act would end.  It makes less and less sense in the age of digital convergence.  It actually runs contrary to innovation, investment and consumer interests.  Consequently, the last point – consumer interest – is actually the starting point for this new system of “regulation.”  One thing that should not change is the need to ensure consumer protection.  Thus, some role for competition “policemen” must remain.  There are two approaches that could work to prosecute consumer interest, based largely on an ex post approach such as seen at the FTC.  If the FCC has not been abolished, residual authority could be vested in a more modest FCC, or special FCC competition (or other) court.  Of course, if the FCC is gone, competition policy could be enforced in either the FTC or DoJ.     

And now for the “Lite” version

All of this may be unsettling to some.   Certain areas of FCC practice may demand a “lite” version of the “dynamite approach.”  To this end, the FCC plays an important and useful role in Part 68 (technical standards) issues; it might be prudent to keep some FCC authority so that the expert body can continue in this function.  Of course, numerous NGO / third-party technical bodies exist in this space (the Internet is essentially “run” / aided by many of these).  It would not be inconceivable to see some of those functions outsourced there.  Still, the industry and consumers win where there is less “technical kvetching” or uncertainty occurring – this organizing function, however it occurs (aided, one trusts, by marketplace guidance), must continue. 

Universal service – i.e., helping people get telecom / Internet access and then keeping them hooked up – is another area that needs more subtly.  One approach would be to fully voucher-ize telecom / broadband hook-up so that it takes the form of a means-based tax credit, or outright subsidy, going directly to consumers instead of companies.  This would be a yearly, on-budget tax appropriation that would self-execute at the end-user.  An alternative to (or, in addition to) would be allowing marketplace levers to rate-rebalance to what it actually costs to get service in a given service area.  At the very least, the two plans would eliminate the need for the explicit, approximately $7 billion USF “subsidy,” as well as reducing the implicit subsidies, providing proper economic calls to incentivize other competition.     

To a large extent, mass media and wireless spectrum allocation matters can be approached together.  Both relying on spectrum, like any property, that spectrum should be placed on an open market exchange to find its highest bidders.  Licensing would look more like state real estate law, with deeds and titles filed with either the FCC or the Department of Commerce (which “has” the lion’s share of spectrum).  “Public interest” determinations – whatever they are – would go by the wayside.  Indecency matters could be addressed through a  strict scrutiny approach to the First Amendment, taking the FCC out of its “indecency policeman” role.  Ownership, market cap and other competition issues could be dealt with via competition policy as noted above.  And, spectrum allocation matters and disputes – where they could not be addressed through common law / property law – could be placed with a special FCC or DoC court.       

Finally, cable services.  Treat them like telecoms.  Yes, franchising / fees / PEGs should still go through the states / localities, subject to a federal ceiling.  But, federal courts could address any related rights-of-way or state competition / barrier-to-entry matters and other matters on a case-by-case basis. 

Less regulation built the Net; more regulation won’t

To be sure, the Telecom Act of 1996 was imperfect.  But its goal, “To promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies” has taken hold.  Especially for the Internet. 

Section 230 of the Act really spells it, stating “…The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation” and then boldly proclaiming “…It is the policy of the United States to promote the continued development of the Internet and other interactive computer services and other interactive media; to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation; to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services…”

Inarguably, the FCC has played no small role in where we are today.  But, let’s also point out that the Internet –  perhaps “the greatest deregulatory success story of all time,” as noted by FCC Commissioner Robert McDowell –  flowered primarily from the agency pulling off of the regulatory gas pedal, not adding speed to it. 

For nearly three-quarters of a century we have labored under the belief that one federal body could help communications networks thrive for consumers.  In days gone by – when the natural monopoly ruled; when the Internet had not yet connect one geek; when digital technologies were the on-and-off of a glowing vacuum tube – that may have made sense (all competition and marketplace distortions aside, of which, even then, there were plenty).  Now, in this time of rapid technological change and abundance, instead of moving beyond that 19^th Century mindset, we seem poised to return to it, with even more hooks than before.  We can’t want that (even some D’s appear to waver on some of these pro-regulatory proposals).

We don’t need an authority-hungry FCC anymore.  Combined with common law / property law, the advance of technology, consumer education, marketplace guidance, industry best practices and present (not expanded) consumer protections, consumers and innovation can thrive simultaneously.  If this poses heartburn, or proves politically unfeasible, PFF’s DACA approach represents a good compromise position.  It keeps government regulation to a minimum and helps consumers.  

Suggesting more regulation in this time of abundance – now that’s radical, offensive to markets and consumers, and, like the tin cans and string of our childhood, ineffective.  

“Hello, Art, is that you?  Can you talk up a bit?  My tin can seems to be on the blink today.”  We’re headed there if we do not rid ourselves of 19^th Century thinking and regulation.

Songs without Homes

I have three recent songs without homes – the first with words; the second two haven’t any:

Don’t Connect

FM

Talking Head

Texas State Ed Board Approves New Social Studies Curriculum, Sky Does Not Fall

You’d think Texas has gone crazy if you read this report by the AP.  Conservatives / Republicans mucking up liberal education by…well, adding information. 

Here’s what the Texas State Board of Education wants Texan children to learn.  We should all aspire to learn these lessons:

Texas’ “new” Social Studies and Economics Curricula

Paternalism – in essence, a culture war – is alive and well in America.  If any narrative about America – its government, the “preeminence” of the Federal government, our social struggles, our use of resources, etc. - doesn’t fall strictly within the liberal point of view, then it’s wrong.

How wrong can that be?

PS – Check out Mike LaRoche’s South Texian blog - on top of what he’s written about his SBOE, he’s also got an extra value-add regarding the Arizona immigration law that is well worth reading / watching: http://www.southtexian.com/2010/05/reading-is-really-super-swell.html.  Good stuff.

First Amendment Meddling Harms the Public Interest

It’s hard protecting the First Amendment.  Especially so in an environment where government sees the limitation in actually the opposite way – a positive right.  Something it can use to “nudge” speakers toward their “better angels,” which, in their view, rests more comfortably with the “public interest.”

Perhaps no organization knows how hard it is better than the ACLU.  For almost 40 years, the Left’s leading defender of the First Amendment broached no restrictions on perhaps the toughest of First Amendment issues (outside of their “Skokie moment”) – campaign finance contributions.

Their policy stated:

Limitations on contributions or expenditures made by individuals or organizations for the purpose of advocating causes or candidates in the public forum impinge directly on freedom of speech and association. Their implementation poses serious dangers to the First Amendment. They should be opposed in candidate as well as referenda elections.

What may surprise many on the Left, the group bravely supported Citizens United in the now (in)famous campaign finance case – the one which affirmed important First Amendment rights of unions and corporations during elections. Since the SCOTUS decision, however (and the fallout surrounding it on the Left), earlier this April the organization switched positions on its strict approach to campaign finance restrictions and now believes “reasonable” limitations on campaign contributions may be appropriate.

Chalk one up for incumbents.  They’re the ones who benefit most when higher finance hurdles get erected to promote a “level playing field.”  According to at least one former ACLU Executive Director:

Experience has shown that the kinds of campaign finance limits the ACLU now endorses have entrenched the powers that-be even further.  Thus the ACLU is prescribing a lot of First Amendment pain for no real democratic gain.

Small change, eh?

Not really.  We see a lot of this lately.  Was the ACLU pressured into changing its position?  Probably not.  Still, it has become au currant to minimize the importance of the First Amendment, subverting it to the squishy “public interest” balancing act that results in, well, more “beneficent outcomes” (for policymakers).   After all, with a new, more enlightened group running the show in Washington, it’s OK to flip the limitation and open it up for government business.  Thus, viewing the First Amendment as a positive right allows the government to insinuate itself more easily into our speech so it / our behavior can be controlled with greater facility.

Along these lines, in April my colleague, Berin Szoka, testified before the Senate Commerce Committee on the Children’s Online Privacy Protection Act (COPPA).  There’s been some talk lately of rewriting COPPA, and the Committee, Chaired by Senator Jay Rockefeller, wanted to know if that was necessary.  Szoka told the Committee that the law basically worked.  Importantly, he urged that it not be expanded to adolescents under the age of 18 (moving it up from 13).

Why?

By lifting the age threshold, sites that did not presently have the burden to age verify (mainly through a credit card) would now have to.  Consequently, it would restrict the free speech rights of adults who might otherwise easily, without cost, without betrayal to their anonymity, go onto “tween” sites (like the Rolling Stone, or Wired, or the Jon Stewart Show).  The practical effects would be especially harmful to small businesses, which now can place a virtual-shingle out to compete globally, with little or no cost.

Senator Rockefeller quipped that Szoka’s testimony “wasn’t particularly helpful.”  I can only surmise that what Senator really wanted Szoka and the others to say was that the First Amendment posed no legitimate challenge to make their law “better.”

That thought is hardly new.  Since the Sedition Act in 1798, the U.S. government has long wanted to make the First Amendment “work better” – for itself, that is.

A current exercise to make the First Amendment ”better” is happening now as I write this blog.  The FCC is looking at how to “reform” the media, making it a “richer,” more democratically-engaging experience for Americans.  Framing the gravity of the situation, the FCC quotes the Knight Commission, stating:

The digital age is creating an information and communications renaissance.  But it is not serving all Americans and their local communities equally. It is not yet serving democracy fully. (emphasis added)

The Agency and its followers fret that America just isn’t making the “right” media decisions (i.e., they listen to too much Rush, and watch too must Lost, and click-away from Frontline); and that broccoli journalism, as well as other forms of high-minded, CPB-like content, isn’t finding its way into the average American’s media diet.  As exhaustively detailed by PFF’s Adam Thierer, Berin Szoka and Ken Ferree in their recent comments before the FCC, numerous media-meddlers seek to remedy this dietary deficiency through direct subsidies / support; taxes / fees; “public interest” requirements; and WPA-like programs for struggling media outlets and out-of-work journalists.

Should one worry?

My wife, who is a journalist, says that no self-respecting reporter would work for an outfit that took direct support from the government.  I’m not so certain.  As media outlets try to compete with the digital revolution, the survivors will take refuge in the sustenance provided by the government’s ever-welcoming teat.  It’s hard to say “no” when the foreclosure sign swings jauntily above one’s head, you know.

Sadly, as concluded by PFF, the “reform” proposals would likely fail Americans instead of helping them, causing irreparable damage “that would destroy the important wall between State and Press and raise profound First Amendment concerns.”

A core function of the independent media is to criticize and watch the government.  Yet, who would trust any outlet whose sustenance depends on the government’s open spigot for their continued viability?  Do you honestly think beneficiaries of that sup will bite the hand that feeds them?  Think again.  Less, critical coverage will result.

Perhaps the most unsettling feeling one might get from the FCC’s present exercise (or Washington’s look-down-its-nose view) is the underlying judgment being made about meat-and-potato Americans.   In a time when more voice reaches more people than at any time in history (I grew up with just three networks and two indepdent TV stations…in Chicago; today, the choice is virtually limitless), the unwashed media “is not serving democracy fully.”  Our choices just aren’t – er, “right” (said with an Upper East Side voice).  They cry out for reform, correction, rehabilitation.  By smarter people than us.

Sitting at the bleeding edge of this need-to-meddle-for-our-own-benefit is Cass Sunstein – a close confidant of Barrack Hussein Obama; well regarded, Left-inclined intellectual for First Amendment meddling; and head of the Office of Information and Regulatory Affairs (OIRA), which has immense sway over the rules and regulations issued by Uncle Sam.  In 2008, Sunstein witnessed an interesting approach to influencing public opinion when the government is behind the rhetorical 8-ball.  In Conspiracy Theories, he proposes to use “cognitive infiltration” to break up extremist thought / groups by introducing idea diversity.

How does that work?  Well, Sunstein notes:

We suggest a role for government efforts, and agents, in introducing such diversity. Government agents (and their allies) might enter chat rooms, online social networks, or even real-space groups and attempt to undermine percolating conspiracy theories by raising doubts about their factual premises, causal logic or implications for political action.

That sounds disturbing enough.  Yet, perhaps more nefariously, Sunstein goes on to add that the odds for achieving “diversity” will see “higher returns” where, among other methods, government officials “participate anonymously or even with false identities” to stir things up.

Covert storm troops to undermine free speech of exercised Americans?  This tactic takes a page from J. Edgar Hoover and Richard Nixon at their most paranoid and conniving.  And, that just doesn’t sound right.

I am not surprised, however.  The First Amendment scares Washington, not to mention the ACLU.  That’s why policymakers perennially feel the need to “improve” upon it.  A positive right – one created to mitigate the First Amendment’s clear anti-government limitation – can be more easily shaped.  It allows politicians to determine the “public interest” instead of the public doing that for itself.

That said, undermining the First Amendment, no matter what the manufactured crisis may demand, does not sound like what “better angels” should endeavor to accomplish for the rest of us.  It is repugnant to free speech and belies respect to Americans that use it; it imposes First Amendment pain with only tyranical gain.

I think this is wrong, against our values.  The First Amendment is hard for a reason.  It keeps our “better angels” honest.

O, the MOral One – Or, SO We’ve Been SOld

NY Times: Obama admin says it’s OK to kill American terrorist while overseas.

The story says it all – but let me excerpt the core:

To eavesdrop on the terrorism suspect who was added to the target list, the American-born radical cleric Anwar al-Awlaki, who is hiding in Yemen, intelligence agencies would have to get a court warrant. But designating him for death, as C.I.A. officials did early this year with the National Security Council’s approval, required no judicial review.

“Congress has protected Awlaki’s cellphone calls,” said Vicki Divoll, a former C.I.A. lawyer who now teaches at the United States Naval Academy. “But it has not provided any protections for his life. That makes no sense.”

Administration officials take the view that no legal or constitutional rights can protect Mr. Awlaki, a charismatic preacher who has said it is a religious duty to attack the United States and who the C.I.A. believes is actively plotting violence.

Welcome to our mOral administration.  And while I agree that we need a strong Executive to prosecute the war on terror, this is certainly not what was sold to the American public.

The Secret Lives of Servers – Lucy & Charles Decry FCC

Last week, the FCC began in earnest its attempts to kill the Internet – May 6, 2010. 

Hear Servers Lucy & Charles Decry FCC Internet-killing Actions

FCC’s Third Way – NPR Interview

Me, today at NPR, Washington, DC

I was interviewed this morning by NPR’s Joel Rose on the FCC’s broadband reclassification / “Third Way” proceeding (see more here & here) kicked off just today.  Listen here to the NPR interview.

The following are some notes I prepared for our talk.

• We want to see the Internet grow; we do not believe regulation as a default is the answer

 

• Though imperfect, we think the market works; it should be allowed to continue to grow via an absence of regulation

 

• We appreciate what the Commission is attempting; it is an important debate we’re having, but the devil’s in the details – the FCC’s Third Way will be looked at carefully, compromises struck in places, and disagreements in others

 

• On the whole, the FCC’s Third Way may not be the birthday cake network providers are looking for

 

• Core innovation could be harmed here – without core innovation, you don’t have innovation at the edges – it’s symbiotic; but regulation – the details – could curb incentives, facilities investment, harm ROI

 

• The Internet has thrived through lack of regulation; so why the change?

 

• By even the FCC’s own reckoning, the market is vibrant; OECD data is apples and oranges and not entirely relevant to the U.S. market; we’ve got it good here, and it’s getting better without regulation

 

• The Comcast ruling changed nothing in the marketplace – it’s vibrant, growing, checked by technology, choices, competition; network providers are following Net Neutrality principles without government intervention

 

• Any changes the FCC contemplates must hem closely to the Act’s statutory grant of authority; this includes today’s Third Way changes; the FCC can’t simply perform a mash-up of statutory authority and say they can regulate as such

 

• Title II seems inappropriate for the Internet; it is not unreasonable to take a new look at the 76-year-old law they’re going back to; Congress should get involved

 

• The Internet marketplace is tough – made tougher when viewed with the lens of congressional and other efforts to clamp down on personal data, cybersecurity, etc.

Summer Today, Summer Songs

It was Summer today – about 90-muggy-degrees in the nation’s capital.  Here’re two Summer-themed songs that I recorded here at home a couple of years ago.  6 and 4 on the volume meter respectively.

Summer Love

Leave All Your Troubles Behind