There has been a great deal of concern about language in the recent FCC call for rule making on network neutrality.  The FCC notice is intended to develop a definition of net neutrality along the lines proposed in the rule making.  The concern is directed at language that would permit network operators (I always use the words network operators because these rules would apply to Internet and non-Internet networks) to conduct ‘reasonable network management.  The Ars Technica article makes one glaring error; there is nothing about ‘tiering‘ that violates net neutrality, but it is a bad idea for a lot of other reasons.   First, here are the principles the FCC has offered for public comment:

“Under the draft proposed rules, subject to reasonable network management, a provider of broadband Internet access service:

1. would not be allowed to prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet;

2. would not be allowed to prevent any of its users from running the lawful applications or using the lawful services of the user’s choice;

3. would not be allowed to prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the


4. would not be allowed to deprive any of its users of the user’s entitlement to competition among network providers, application providers, service

providers, and content providers;

5. would be required to treat lawful content, applications, and services in a non-discriminatory manner; and

6. would be required to disclose such information concerning network management and other practices as is reasonably required for users and

content, application, and service providers to enjoy the protections specified in this rule making.”

Now first of all, let’s give the FCC a great big hand for doing such a fine job putting the definition of network neutrality into words, and going much further than most folks would have imagined.  Now, the way the FCC phrased it, they made all six principles subject to the prefatory phrase ‘reasonable network management.’  That is not the way I would do it.  Only principle 5 (OK maybe 4, too) needs to be made subject to reasonable network management, because none of the rest of the  principles implicate any kind of network management at all.  I would like to see the Commission simply take the phrase ‘subject to reasonable network management’ and move it down to principle 5.  Then there would be no confusion that any of the other principles would somehow be compromised by allowing the network operators to ‘manage’ them.

If we can define network neutrality in six pithy phrases, I don’t see why we can’t take a whack at defining reasonable network management in a few pithy phrases also.  My framework for this is based on my research concerning comparative telecommunications laws, and specifically the European Union Framework Directive and Access Directive.  I’m not going to dissect the EU directives here, but I wanted to give some background.

The basic principles for reasonable network management:

1.  The management must be directed to traffic on the network.  It must be directly related to a specific, identifiable traffic problem existing on the network.  If audited, the operator should be able to show what the problem was; it is an identified situation.  This excludes peremptory management, for example taking actions to prevent a traffic problem.  The correct action to peremptorily address traffic is to expand the capacity on the network.  The rule is addressed this way intentionally, so that a network operator will be forced to open or expand capacity to solve traffic congestion.   Network management must stop as soon as the congestion has cleared.

2.  The network operator cannot discriminate between one kind of data and another to management traffic congestion.  The operator must act to remove the congestion, not the data.

3.  To help improve service during periods of congestion, the operator can prioritize certain data.  For example, if an episode of congestion made it hard for voice data to travel over the network (thereby rendering some voice-over-IP apps inoperable), the operator could prioritize voice data.  But the operator cannot retard other data.  Actually, the scenario painted by US ISPs of slowing some data to somehow create some space (??) for other data to move faster, like on a freeway, just doesn’t make sense.  That is not how a data network works.  The analog between freeways and networks breaks down.

4.  The operator cannot act to improve the ‘user experience.’  Since the operator is handling data for all kinds of users, who are sending data as well as receiving it, the operator would have to pick and choose which users’ experience to improve.  Obviously, this can’t be done because how do you choose?  This may also violate the rule against peremptory management.   Network management must occur on the network, not at the user.

5.  All management must be transparent.  Operators are limited to the use of management that meets the technical standards and specifications laid down by the Commission.   Operators must provide a complete description of the methodology they use for network management to anyone who asks.

6.  A network operator cannot refuse network access based on ‘reasonable network management grounds.’ “Where obligations are imposed on operators that require them to meet reasonable requests for access to and use of networks elements and associated facilities, such requests should only be refused on the basis of objective criteria such as technical feasibility or the need to maintain network integrity.”  (EU Access Directive)  When you send a message to someone on another network, you are ‘accessing’ the network.

7.  Network operators cannot manage the network in any way that distorts competition.  For example, they cannot refuse access or slow down access from some competitors, but not others.  They cannot favor their own traffic over others’.

That is pretty much it.  If the FCC wants to define the terms of reasonable network management, I see no reason they cannot.  I strongly urge the Commission to regulate network management in a way that is consistent with the rest of the world.  There is no US Internet or EU Internet.  There is just an Internet, and network operators and users should be able to use it the same way wherever they are.


US Representative Rick Larsen, who represents northwest Washington State, Friday signed the anti-net neutrality letter shopped around by the telcos and cable cos.  The letter was shopped around to Democratic reps in the hopes of scaring off FCC Chairman Julius Genachowski.  In the letter,  the signers recite a litany of telco lies and misrepresentations.  For example, they attribute the growth of the Internet on ‘regulatory restraint,’ an allusion to the polices of Michael Powell, Reed Hundt and Kevin Martin.  But those policies slowed and eventually destroyed the growth of the Internet, so that now the US has one of the lowest Internet use rates of any developed country.  And the quality of our service is just about the worst in the developed world (slowest, most expensive) , again, thanks to regulatory restraint.

A least one signer has already made signs of his intent to possibly repudiate his signature on the letter. I guess in this age of the Internet, he had received assurances the telcos would block any comments about his signature. They can do that, right? Not yet, Rep. Jared Polis, sorry.  But we know where you want go, now.

It’s a surprise Larsen would sell out to the telco/cableco sock puppets.  His district used to have dozens of independent ISPs.  Now, there are nearly none, and the nascent high-tech industry that was developing in this beautiful area of Washington State is gone.  Larsen’s district suffers from lack of high-speed Internet service; I know because I’ve met with the leaders in the area.  Lack of quality Internet has hampered job creation and made it impossible to create or relocate the kind of jobs that would permit young people to remain in the area.  And the few success stories (Bellingham’s fiber to the industrial park project, San Juan County’s decision to build it themselves) are public efforts to get around the tail-dragging, dishonest, manipulative telcos.  Thanks Rick Larsen, you outed yourself as a telco sock puppet.

Another brilliant post from Bunnie Reidel, a long-time advocate for the public interest.  This time she picks on Connected Nation (the favorite of Washington State Senator Jeanne Kohl-Welles):

“Meanwhile, just as the petting party is heating up, Verizon, Comcast, at&t (among others) are lobbying state legislatures to prohibit municipal broadband. At the front of the lobbying is Connected Nation, which counts Verizon, Comcast, at&t and the National Cable Telecommunications Association among its advisors, according to

Karl Bode of is quoted as saying “[Connect America] takes state taxpayer funds under the pretense of effectively mapping state broadband services, but then acts by and large as an extension of the incumbents — obscuring data they don’t want public, while lobbying state lawmakers on carriers’ behalf.”

Mmmm…where have we seen that before? Can you say statewide cable franchising? $50 to the first person who connects Dick Armey with Connected Nation! No really, I will send you $50. ”

And I will up the ante and send you… a big attaboy!  Read more here

Larry Lessig’s latest article in Newsweek is very disappointing, a pre-dot-bomb retread that backs down from all his recent progressive thinking. It’s so dated, one wonders if it was written in the last ten years, or if someone just found this article now and decided to print it. Regardless, here is my review:

“When was this written? 1995? 1998? Are you sure this was written by Larry Lessig, not George Gilder? If this is what it purports to be, then it helps explain why Larry is a very good teacher, but he should never be let closer to a telecom network than the handset.

First of all, Verizon did not ‘build it after all…’ and neither did AT&T or Qwest, or anyone else. You built it, and so did I. All these networks were built out of regulated rate-of-return funds sourced from the local telephone networks, or from USF funds, or other similar sources. Sometimes they were a direct donation from the federal or state government. Bruce Kushnik’s and Om Malik’s books offer a good recitation of the recent history here, but a good deal of the infrastructure was built decades ago and is still in use. In fact, state and federal regulator can’t get the incumbents to give up use of these old, customer paid-for networks and infrastructure because it is so lucrative for the incumbents. The latest scheme: state and federal video franchising legislation lets incumbents, in many cases, build new high-speed fiber networks (think U-Verse, FIOS, etc.) and charge off the costs to the local telephone rate-of-return regulated monopoly.

Next, Larry incorrectly addresses the poor quality of regulation and the culture of corruption as the structure of regulation itself. This is Larry’s continuing intellectual sin. I thought he had left it behind in the last few years, but apparently it came back like a nasty rash, this time harder to cure. Strong scrubbing with disinfectant might help.

The structural problem with regulation in the United States is the people doing it! Other countries that have imitated our institutions, but peopled them with smart and honest regulators, have not sustained the same problems with agency capture, political gamesmanship, and know-nothing decisions. For example, does anyone ask why the members or chair of the SEC, FCC, FTC, or other agencies are chosen on a partisan political basis? WTF? I’m shocked, shocked, that politics is going on here! (“Capitan Reynaud, are you Democrat or Republican?”) And this same structural disease is repeated throughout our state and local institutions. Obama received 365 electoral votes: that does mean we get four FCC seats and they get one? When there are only 25 Republicans in the Senate, are we still going to require that they receive an equal share of appointments in the government?

The most disappointing part of Larry’s article, and the least supportable legally or economically, is pulling out the old tar baby of government regulation and giving it a few boots in the name of innovation. As Larry and many others have noted, the Internet, computers, transistors, most drugs, interstate highways, airports, and just about every other major innovation or modern infrastructure project is the child of regulation. Regulation, strong regulation from humorless experts, is what gave the world the GSM system, digital radio DRM/DB (except in the US: did you know your radio won’t work outside the US in a couple of years?), 100 MB Internet for $20/month, fuel efficient cars, safe airplanes, retro-viral drugs to help fight AIDs, Medicare and Medicaid, and so on.

Larry’s opinions carry a lot of weight. But, he has done incalculable damage with this piece in Newsweek. It will be hauled out again and again by the bitlords and modern Gilded Age Robber Barons to justify their rapacity and greed.

Finally, let me say that I whole-heartedly endorse the idea of getting rid of the FCC. However, the new agency would be much larger, better funded, with a much broader reach and depth. It would combine the FCC and the NTIA, and would also subsume our participation in the ITU and UN (currently spread around Commerce, State, and the Pentagon). It would include the parts of the USPTO regulating recording devices and digital media. It would include a large research arm ala the NIH to sponsor research and conduct research directly. It would have its own administrative law courts to regulate competition and intellectual property law within its ambit. In other words, it would be Ofcom. It would be a cabinet level office, and the agency would be professionalized ala Justice and Defense. Martin and Powell politicized the FCC, but that is not structural, its personal. The new agency would have a large enforcement arm with offices in the major states, aimed primarily at consumer protection (not incumbent protection), and it would issue far reaching regulations of national effect on all aspects of this sector. ”

Michael Weisman, JD, LLM

> Reboot the FCC
> We’ll stifle the Skypes and YouTubes of the future if we don’t
> demolish the regulators that oversee our digital pipelines.
> By Lawrence Lessig | Newsweek Web Exclusive
> Dec 23, 2008
> Economic growth requires innovation. Trouble is, Washington is
> practically designed to resist it. Built into the DNA of the most
> important agencies created to protect innovation, is an almost
> irresistible urge to protect the most powerful instead.
> The FCC is a perfect example. Born in the 1930s, at a time when the
> utmost importance was put on stability, the agency has become the
> focal point for almost every important innovation in technology. It is
> the presumptive protector of the Internet, and the continued regulator
> of radio, TV and satellite communications. In the next decades, it
> could well become the default regulator for every new communications
> technology, including, and especially, fantastic new ways to use
> wireless technologies, which today carry television, radio, internet,
> and cellular phone signals through the air, and which may soon provide
> high-speed internet access on-the-go, something that Google cofounder
> Larry Page calls “wifi on steroids.”
> If history is our guide, these new technologies are at risk, and with
> them, everything they make possible. With so much in its reach, the
> FCC has become the target of enormous campaigns for influence. Its
> commissioners are meant to be “expert” and “independent,” but they’ve
> never really been expert, and are now openly embracing the political
> role they play. Commissioners issue press releases touting their own
> personal policies. And lobbyists spend years getting close to members
> of this junior varsity Congress. Think about the storm around former
> FCC Chairman Michael Powell’s decision to relax media ownership rules,
> giving a green light to the concentration of newspapers and television
> stations into fewer and fewer hands. This is policy by committee,
> influenced by money and power, and with no one, not even the
> President, responsible for its failures.
> The solution here is not tinkering. You can’t fix DNA. You have to
> bury it. President Obama should get Congress to shut down the FCC and
> similar vestigial regulators, which put stability and special
> interests above the public good. In their place, Congress should
> create something we could call the Innovation Environment Protection
> Agency (iEPA), charged with a simple founding mission: “minimal
> intervention to maximize innovation.” The iEPA’s core purpose would be
> to protect innovation from its two historical enemies˜excessive
> government favors, and excessive private monopoly power.
> Since the birth of the Republic, the U.S. government has been in the
> business of handing out “exclusive rights” (a.k.a., monopolies) in
> order to “promote progress” or enable new markets of communication.
> Patents and copyrights accomplish the first goal; giving away slices
> of the airwaves serves the second. No one doubts that these monopolies
> are sometimes necessary to stimulate innovation. Hollywood could not
> survive without a copyright system; privately funded drug development
> won’t happen without patents. But if history has taught us anything,
> it is that special interests˜the Disneys and Pfizers of the world˜have
> become very good at clambering for more and more monopoly rights.
> Copyrights last almost a century now, and patents regulate “anything
> under the sun that is made by man,” as the Supreme Court has put it.
> This is the story of endless bloat, with each round of new monopolies
> met with a gluttonous demand for more.
> The problem is that the government has never given a thought to when
> these monopolies help, and when they’re merely handouts to companies
> with high-powered lobbyists. The iEPA’s first task would thus be to
> reverse the unrestrained growth of these monopolies. For example, much
> of the wireless spectrum has been auctioned off to telecom monopolies,
> on the assumption that only by granting a monopoly could companies be
> encouraged to undertake the expensive task of building a network of
> cell towers or broadcasting stations. The iEPA would test this
> assumption, and essentially ask the question: do these monopolies do
> more harm than good? With a strong agency head, and a staff absolutely
> barred from industry ties, the iEPA could avoid the culture of
> favoritism that’s come to define the FCC. And if it became credible in
> its monopoly-checking role, the agency could eventually apply this
> expertise to the area of patents and copyrights, guiding Congress’s
> policymaking in these special-interest hornet nests.
> The iEPA’s second task should be to assure that the nation’s basic
> communications infrastructure spectrum˜ the wires, cables and cellular
> towers that serve as the highways of the information economy˜remain
> open to new innovation, no matter who owns them. For example, “network
> neutrality” rules, when done right, aim simply to keep companies like
> Comcast and Verizon from skewing the rules in favor of or against
> certain types of content and services that run over their networks.
> The investors behind the next Skype or Amazon need to be sure that
> their hard work won’t be thwarted by an arbitrary decision on the part
> of one of the gatekeepers of the Net. Such regulation need not, in my
> view, go as far as some Democrats have demanded. It need not put
> extreme limits on what the Verizons of the world can do with their
> network˜they did, after all, build it in the first place˜but no doubt
> a minimal set of rules is necessary to make sure that the Net
> continues to be a crucial platform for economic growth.
> Beyond these two tasks, what’s most needed from the iEPA is benign
> neglect. Certainly, it should keep competition information flowing
> smoothly and limit destructive regulation at the state level, and it
> might encourage the government to spend more on public communications
> infrastructure, for example in the rural areas which private companies
> often ignore. But beyond these limited tasks, whole phone-books worth
> of regulation could simply be erased. And with it, we would remove
> many of the levers that lobbyists use to win favors to protect today’s
> monopolists.
> America’s economic future depends upon restarting an engine of
> innovation and technological growth. A first step is to remove the
> government from the mix as much as possible. This is the biggest
> problem with communication innovation around the world, as too many
> nations who should know better continue to preference legacy
> communication monopolies. It is a growing problem in our own country
> as well, as corporate America has come to believe that investments in
> influencing Washington pay more than investments in building a better
> mousetrap. That will only change when regulation is crafted as
> narrowly as possible. Only then can regulators serve the public good,
> instead of private protection. We need to kill a philosophy of
> regulation born with the 20th century, if we’re to make possible a
> world of innovation in the 21st.
> Lessig is a professor at Stanford Law School and the author of five
> books, including most recently “Remix: Making Art and Commerce Thrive
> in the Hybrid Economy.”

The Media and Democracy Coalition has issued a policy manifesto addressing the Restoration Government’s Broadband stimulus package, announced by President-Elect Barack Obama.  In the declaration. MADCo specifically attacks the Connected Nation model:

Business As Usual Will Not Suffice
Until now, U.S. policy has been to largely rely on the private market, particularly incumbent large telephone and cable companies, to determine who has access, what they pay for it, and the speed of U.S. broadband infrastructure. This approach has failed, and business as usual will not suffice.  Exclusively relying on the market or private industry will not bring broadband to high-cost areas currently un-served or underserved. We did not bring electricity and phone service to rural America or assure the affordability of service to all by relying on the market alone.  We simply cannot rely upon one solution, a handful of companies, or a single model or technology to solve this problem.  Nor can we count on seeing tangible results if U.S. policy aimlessly doles out tax breaks or public subsidies without accountability.  The stimulus package must not degenerate into corporate welfare, as has too often been the sad fate of subsidies to the private sector.”

It’s good to know our friends in Washington DC are watching our back.  Here in the other Washington, CN sock puppet State Senator Jeanne Kohl-Welles has threatened preemptory legislation that would require Washington State to use the CN model of large public tax breaks, indirect and direct payments to private companies, no spending accountability, false and misleading deployment statistics, poor quality services, and prohibiting municipally-owned information utilities.  Kohl-Welles is one of the largest recipients of political contributions from the telecom and cable bitlords. Keep following this story.

I attended a holiday party today and heard Washington State Senator Jeanne Kohl-Welles expound on her intention to introduce new legislation concerning broadband deployment in Washington.  Kohl-Welles’ bill comes from Progressive States Network.  Progressive States Network is financed in part by the Communications Workers of America (CWA),  and telecom companies. The two are linked: CWA has historically worked to maintain the monopoly status of the telecom oligarchs, and most recently has operated fake grassroots front groups and sock puppet think tanks to help sink genuine progressive legislation that would bring competition to the telecom sector.  Although Kohl-Welles attributes her legislation to PSN, her bills do not reflect the values and policies described in the PSN platform.  

Kohl-Welles is heavily supported by the telecoms, notably Comcast, Verizon and Qwest, the three companies operating in Washington State.  In the last session of the state legislature, Kohl-Welles introduced and passed a telecom-drafted bill that rendered data collected regarding broadband deployment and penetration out-of-bounds to the public.  Asked about the bill, Kohl-Welles says that no legislation can be passed without the support of the telecom companies, so there is no point in even trying. See the link above for Art Brodsky’s play-by-play account of the same tactics when used in Maryland.

Kohl-Welles is a fan of the widely discredited Connect Kentucky and Connected Nation programs, crediting them with increasing broadband by 40%!  At the National Media Reform Conference in June 208, she made a fool of herself describing the miracles attributable to Connected Nation and its progeny.  Unfortunately for her, in the audience was Art Brodsky of Public Knowledge, one of the most important critics of Connected Nation (but not the only one.)  Brodsky outed Kohl-Welles, but she continues to peddle telecom propanganda, in return for their lucrative junkets around the US.  If you Google ‘Connected Nation’ you will find an entire genre of literature outing this group and their clever tactics.  

The Reconstruction government has announced plans to introduce federal legislation that would require truthful, accurate broadband statistical data. Expect to hear Kohl-Welles and others complain about the need for a state level opt-out, so that Connected Nation, CWA, and the telecom oligarchs don’t lose the battles they have already won.

The fine people at Juicy Planet asked me for a recommendation. Which of the three presidential candidates has the best policy positions and experience for activists concerned about the future of the Internet, technology policy, and America’s poor quality broadband deployment. I would add to these issues our policies concerning intellectual property, civil rights and free speech in cyberspace, and bridging the digital divide.

Two of my friends I look to for advice and inspiration have posted their choices to thier blogs. Larry Lessig has come out strongly for Barack Obama. Lessig is one of my intellectual inspirations for his attempts to translate very complicated legal and technical issues into language for the lay public in his several books. Even better, most of Lessig’s book are available for free for your enjoyment under the Creative Commons license. I won’t repeat Larry’s endorsement here, but you can read it for your here.

Kevin Werbach is another acquaintance I hold in high regard. Kevin also came out strongly for Obama in his blog, here. I don’t always agree with Werbach, but mostly I do. Kevin, a former FCC staffer, consistently issues some of the best articles on the subject. I think that Kevin spent too many years in DC, and he occasionally puts too much faith in the ‘free market’ to solve problems that are really going to need direct regulation. Kevin got back on my good list when he recently my prescription that net neutrality will require direct regulation of interconnection.

But the campaign isn’t just among Democrats. So who would be the best candidate in the general election in November? By way of reverse endorsement, the lobbyists for the telecom and cable oligarchs recently conducted a conference to consider their future under a new president. Looking at all three candidates, the bad boys decided that Hillary Clinton would be their choice to keep things shitty and continue funneling taxpayer and consumer dollars to their managers. Clinton beats McCain, at least if you are a monopoly industrialist!

The Clinton administration was a disaster for American technology development, Internet infrastructure, intellectual property policy, and positioning the country for the 21st Century. Clinton idiots like Ira Magiziner and Reed Hundt had no idea what they ere doing, and in typical Clinton fashion, were too arrogant to listen to anyone who does. The damage they did wasn’t always apparent until after they left office. But if Hillary is promising us more of Bill, we don’t need it and I can’t take anymore.

In my opinion, Obama has the most detailed and rational technology policy portfolio. That’s important to me; it says he understands that this is an important campaign issue. Even if other issues are front burner during the primaries, technology policy and the future of the Internet will be, in my opinion, an important issue in the general election. This election is likely to be the most in my generation. If we get it wrong, the fuure of the US and my future is wrecked. If we get it right, and that means Obama, we have a chance, just a chance, of a future with some opportunity, economic justice, happiness, and comfort.

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