Is Rockefeller equating broadband service with communications

It’s third and eighteen with less than a minute to go in the fourth. Genachowski takes the snap from center, drops back, and looks down field for his favorite receiver.  Problem is that Clyburn, as quick as she is, is covered.  Copps is running an underneath pattern and Genachowski, feeling the pressure from the defense, is forced to either eat the ball or hit Copps. Genachowski knows in his heart of hearts that while the wily old veteran is stout of heart, his ability to pick up yardage after the pass has long since left him.

Meanwhile, Rockefeller has been able to elude the corner and work his way downfield. He is waving his arms, hoping that Genachowski will see him and throw a pass that will get his team the first down. The coaches see it. The fans see it. Does Genachowski see it?

Senator Jay Rockefeller, Democrat of West Virginia, has been waving his arms at FCC Chairman Genachowski for weeks now. The chairman of the Senate Committee on Commerce, Science, and Transportation, in a letter to the FCC dated 2 August 2010, apparently signaled a way to treat broadband access services as common carrier without going through the itineration of coming up with new legislation.

In his letter, Mr. Rockefeller expressed the need for speed in deploying telecommunications and information services throughout rural West Virginia. Mr. Rockefeller cited section 254 of the Communications Act of 1934, arguing that the FCC is directed by the statute to develop a universal service policy that provides consumers in rural, insular, and high-cost areas with access to telecommunications and information services reasonably comparable to services provided in urban areas.

In short, Mr. Rockefeller would like the FCC to use USF funds to finance the deployment of broadband services throughout rural West Virginia. Fair enough. The statute does say that the preservation and advancement of universal service should be based in part on the principle of access to advanced telecommunications and information services.

This is where, Mr. Rockefeller has to work his way down field. Before the FCC can use USF funds to finance broadband deployment, Congress will have to clean up section 254(c)(1) of the Communications Act. This section defines universal service as “an evolving level of telecommunications services that the Commission shall establish periodically under this section, taking into account advances in telecommunications and information technologies and services.

In other words, broadband access services, which are currently defined as information services, will have to be redefined as telecommunications services. It will take an act of Congress to change that definition. Even if Genachowski wants to toss the pigskin to Rockefeller, Rockefeller has to be prepared to catch it.

Government should not be regulating decency

Posted July 14th, 2010 in FCC, free speech, Government Regulation, indecency and tagged , , by Alton Drew

I’ve been really impressed with our judicial system lately. The attempts to expand the interventionist tentacles of government have been thwarted not by Congress or the administrative branch but by the courts.

One of these impressive moments came yesterday when the United States Court of Appeals in the Second Circuit held in Fox Television v. FCC, that the Federal Communications Commission’s policy on decency violates the First Amendment because the policy is unconditionally vague and creates a chilling effect that goes beyond fleeting expletives.

In other words, the FCC has to be more specific in its regulation of decency than just saying we don’t like the use of an inadvertent f-bomb or the accidental baring of a breast at a half-time show.

In arriving at its conclusion, the court made a couple important points. First, the court raised the concern about the risk of subjective, content-based decision-making and its negative impact on the First Amendment. Do we want the FCC to say, “we’ll allow ABC to show a movie where f-bombs are dropped throughout a movie because the movie depicts real events, but we want the f-bombs edited from a documentary on NBC that discusses drug intervention.” Where would the FCC draw the line on indecency?

Second, because the FCC’s standards for identifying indecency are indiscernible, are not clear upon inspection, this alone creates an environment for discrimination against one person’s speech. In other words, I woke up this morning and something about the lines in that documentary rubbed me the wrong way, so I’m going to say it was indecent. Talk about throwing cold water on free speech.

The court only addressed the FCC’s policy. It did not go so far as to call section 1464 of Title 18 unconstitutional. According to the language in the law, “whoever utters any obscene, indecent, or profane language via radio communications will be fined under this title, or imprisoned not more than two years, or both.” The statutory basis for FCC rules on decency still exists.

What will the FCC do next? According to FCC Commissioner Copps, expect the FCC to appeal the decision. The FCC will have its work cut out for it. The U.S. Supreme Court has already showed a preference for corporate speech in its recent ruling regarding limits on campaign donations by corporations. It may not buy an argument from the FCC that it should be allowed to regulate decency on a standard that basically says, we are going to regulate it in this medium but ignore it because it takes place in another medium.

That to me would be indecent.

Reclassification may be too hot for the FCC to handle

The E-Commerce Times’ Sidney Hill does not expect much action from the FCC on net neutrality.  The title and theme of his article may have been a bit premature.

Today, the Federal Communications Commission voted along party lines, 3-2, to issue a notice of inquiry regarding alternatives for implementing a legal framework for regulating broadband access. I do believe that the action that this vote sparks may be a bit too hot for this FCC to handle.

First, the overall political environment for government intervention is not favorable.   Americans are increasingly wary of government intervention under the guise of protecting citizens from big, bad industry. Expectations are that this fall the electorate will vent its frustration on everything from Congress’ passage of the health care bill to the bailout of the auto industry to supporting the bonuses given to bankers in spite of a lack of lending on the part of the very banks who received bailouts. The FCC’s attempts to reclassify broadband may come under similar scrutiny.

Second, whatever policy is formally decided upon by the FCC will be challenged by broadband providers. Today’s kangaroo decision to seek comment on three policy options may prove to be a farce given that option three, reclassification of broadband as a telecommunications service, is already endorsed by FCC chairman Julius Genachowski and his Democratic cohorts, Commissioner Mignon Clyburn and Commissioner Michael Copps.

But the FCC will have bigger concerns once they formally decide on the third way. The courts will more than likely reject this sham policy, holding that the FCC, after all its policy wrangling, has still not complied with the requirements of FCC v. Comcast. It’s one thing to say we want to do something over and over again. It’s quite another to have permission to do it.

In response to Art Brodsky’s big telecom plays tag with the FCC

Art Brodsky is taking issue with the recently formed broadband technical advisory group made up of Comcast, Google, Verizon, and other broadband and content providers. Regarding the role that the technical advisory group is expected to play, if the telecommunications companies have “tagged” the Federal Communications Commission, the FCC doesn’t sound like it’s on the same playground.

The FCC today issued a notice of inquiry seeking comment on three policy proposals that describe possible approaches to regulating broadband access. Based on the comments made by FCC chairman Genachowski, Commissioner Mignon Clyburn, and Commissioner Michael Copps, playing in the same playpen as Comcast, Google, and Verizon does not appear to be on their minds. None of them acknowledged the formation of the group much less the positive contribution that could be provided in the form of expert advice from this alliance.

Then again, these three commissioners in particular appear to have problems with organic strategic alliances that result when the market realizes that cooperation provides, at times, the highest returns. The concept of net neutrality never smiled favorably on partnerships. In promoting net neutrality, Mr. Genachowski and company turned their back on how minority content providers could enter into agreements with access providers on terms and conditions for the transmission and pricing of traffic.

It’s not surprising given the “my way or no way” attitude the FCC is taking toward reclassification. Even when in light of no statutory authority to reclassify broadband as telecommunications, the FCC is dead set on doing so without the necessary help of Congress. We should expect they would take this attitude toward Congress as well.