Editors' note: This is a guest column. See Larry Downes' bio below.
I've managed to slog through the 107-page "Notice of Proposed Rulemaking" (PDF) issued late last week by the Federal Communications Commission.
Let me save you the trouble of reading the 185 numbered paragraphs, 310 footnotes, and three appendices, including separate statements from each of the five commissioners: there's nothing to see here, folks.
First, let's be clear about what has not happened. No new law was passed. No new federal regulations were enacted. No decisions were made.
Instead, the FCC proposed draft rules to codify the six Net neutrality principles Chairman Julius Genachowski outlined in his speech on September 21. Now begins the process of gathering comments and other testimony. Later, the FCC will vote on whether to adopt the rules or to amend them, or just call the whole thing off.
The basic thrust of the proposed rules, as nearly everyone knows by now, is to keep broadband Internet access providers from managing last-mile network traffic in ways that discriminate, pro or con, based on content, applications, or devices. Access providers would be banned from restricting or throttling services that the provider doesn't like, for example, perhaps because they compete with more expensive alternatives the provider or one of its business partner offers. The proposed rules would apply to all broadband access, including wireless.
The comment process, which runs until March 2010, is open to anyone. The FCC is clearly expecting lots of comment. The document itself asks more than 100 questions, including whether the new rules are necessary, whether the commission should enforce them without detailed regulations but instead on a "case by case" basis, and even whether the commission has the legal authority to enact new rules in the first place.
1. We don't need no stinking jurisdiction
The last question hints at one of many ticking time bombs. Although the FCC has for years published policy statements regarding open networks, the commission's authority to enforce those policies is far from clear. Under the 1996 Telecommunications Act--the last major rewrite of federal communications law--only traditional phone services delivered by traditional phone companies are regulated as common carriers.
If the FCC has any authority to regulate broadband access, it comes from what Genachowski calls the agency's "ancillary jurisdiction." But Comcast has already challenged that jurisdiction, in a lawsuit pending in a federal court of appeals. If the FCC loses that case, the proposed rules may come to a quick demise.
In arguing against ancillary jurisdiction, Comcast has found a surprising ally: the Electronic Frontier Foundation. The advocacy group--strong supporters of the principles of neutrality--believes that the commission has no authority to issue these rules without sweeping new authority from Congress. Regulating neutrality under ancillary jurisdiction, the EFF worries, is a cure far worse than the disease; a "power grab that would leave the Internet subject to the regulatory whims of the FCC long after Chairman Genachowski leaves his post."
Exactly.
What's the risk? For one thing, "ancillary" jurisdiction could also be applied, as the EFF points out, to the creation of new Internet decency standards. (Congress has tried repeatedly to regulate Internet content since 1996, only to be overturned by the courts.) The same FCC that now casts itself as savior of the open network, after all, has grown increasingly aggressive and prudish in policing content in its traditional job as regulator of over-the-air television. A federal court, for example, recently threw out the $550,000 fine levied in the Janet Jackson wardrobe malfunction case from the 2004 Super Bowl.
Speaking of power grabs, recall that the FCC has tried repeatedly, at the strong urging of media lobbyists, to force electronics and software manufacturers to implement the so-called broadcast flag. Responding to a signal embedded in programming, TVs, DVRs, and computers would be forced to limit the ability of consumers to time-shift programming, a capability we've enjoyed since the invention of the VCR.
Another federal court stopped that madness. Mandating the design of electronics and operating systems, the judges sneered, was no more in the FCC's power than "regulating washing machines." That rebuke hasn't stopped the FCC from trying again and again.
Maybe that's why the EFF isn't the only surprising voice calling for caution. Microsoft and Yahoo, leading application providers, have both pulled out of a coalition formed to advance Net neutrality, with Microsoft issuing a statement last year that "Network neutrality is a policy avenue the company is no longer pursuing."
2. Swallowing the rules
Even if the FCC has the power to issue new rules, there are enough exceptions to render them toothless. All the rules are subject to "reasonable network management" by broadband providers, a sensible limitation that is mentioned (though not yet defined) 66 times in the document.
As drafted, the new rules also allow access providers to prioritize performance-sensitive content, including voice and video, and to offer higher-price access options. This falls under the category of what the proposal calls "specialized" or "managed" services. That's nothing new. Harvard professor and open-network supporter Lawrence Lessig, who told the press that he was "thrilled" with the FCC proposal, has always believed that "broadband providers should be free...to price consumer access to the Internet differently--setting a higher price, for example, for faster or greater access."
The new rules, moreover, say nothing about discrimination by applications and Internet services. Even though access providers would not be permitted to block voice over Internet Protocol, or VoIP, telephone access from Skype and Vonage, in other words, the proposed rules would do nothing to stop Skype and Vonage from blocking calls to certain area codes, offering priority service to paying customers, or limiting the devices (e.g., cell phones) through which users can access their service.
There's no need to regulate applications, according to pro-neutrality groups like the Center for Democracy and Technology, because applications "do not suffer from the same bottleneck problem that the underlying broadband service inherently has." In other words, if Google searches prioritize Google content, and you don't value that kind of discrimination, you can use a different search engine. But today, in many parts of the United States, consumers effectively have only one or two choices for broadband access--their phone company and their cable company.
3. Avoiding the real problem
That, of course, is the real reason everyone, including me, worries about non-neutral behavior. In the absence of real competition, monopolies and duopolies have strong incentives to discriminate in ways that can severely burden some classes of users--whether consumers or service providers or both.
Despite a few isolated incidents of clumsy interference, however, no one really believes that the lack of competition has created true market failures. At least not the kind of failure severe enough to justify the intensive federal regulation visited, with mixed results, on U.S. railroads a century ago or of the telephone monopoly from 1913 until 1982. Pro-regulation advocates, including Chairman Genachowski and Google Vice President Vint Cerf, speak in the conditional tense. The word "could" appears 55 times in the FCC proposal.
Regulating ahead of a market failure makes little sense when, as everyone acknowledges, the underlying technology for access is evolving rapidly and models for making money in Internet provisioning are still in the early stages of development. The risk of non-neutral behavior is significant, but the cost of regulation and the potential for unintended consequences may be higher. "Have we correctly identified the costs and benefits of the alternative approaches?" the commission asks. The answer is that it hasn't even begun to identify either, correctly or otherwise.
And if the real problem today is broadband bottlenecks, why is so little being done to encourage competition? Municipal wireless Internet projects have largely shut down, in large part because state governments and their lobbyist friends maintain that the law allows them to prohibit cities from competing with private-sector communications companies, a view supported by the FCC in 2001.
Offering broadband over power lines, another promising option, has been stymied, with the FCC receiving still more abuse from the federal courts in 2008, for their failure to adequately support the development of the technology.
Net neutrality advocates may be celebrating the start of a process they have argued for since 2005, but here, as with all technology regulation, it's wise to be careful what you wish for. For now, the proposed rules look to be dead on arrival--and of multiple causes.
That's one more reason to wonder why, if there is a problem to be solved sometime in the future, anyone thinks the FCC is the organization best-suited to solve it.
Google Voice now blocks just under 100 numbers, which might not satisfy AT&T but might get the FCC off its back.
(Credit: Screenshot by Jessica Dolcourt/CNET)Google says it has found a work-around that should allow it to restore access for Google Voice users to most of the local lines it had blocked before AT&T complained about its practices.
AT&T and Google have been engaged in a war of words over Net neutrality and the obscure practice of "traffic-pumping," exchanging letters with the Federal Communications Commission on an almost weekly basis over the past month. Google wants to ensure that broadband Internet providers such as AT&T adhere to the proposed Net neutrality principles, while AT&T wants Google to be held to the same standard as other local telephone service providers.
And so, AT&T had objected to Google's practice of blocking Google Voice users from restricting calls to certain local telephone numbers that host a disproportionate amount of traffic-heavy telephone services like phone sex lines and conference call services. No phone service provider really wants to connect calls to those lines, considering the hefty fees that local operators charge for those calls, but AT&T is required to provide access to those numbers under federal regulations.
Leaving aside the notion of whether Google Voice is subject to the same rules as AT&T--you can guess where each company stands on that question--Google announced Wednesday that it has found a way to limit its block on those particular calls to only the worst offenders. In other words, instead of blocking access to entire telephone prefixes, Google said it has blocked less than 100 specific telephone numbers belonging to the so-called traffic pumpers.
Will this mollify AT&T? Probably not. But Google actually threw AT&T a bone, calling on Congress to change the laws regarding these services.
"While we've developed a fix to address this problem, the bottom line is that we still believe the Commission needs to repair our nation's broken carrier compensation system. The current system simply does not serve consumers well and these types of schemes point up the pressing need for reform," wrote Richard Whitt, Washington telecom and media counsel for Google.
U.S. regulators may consider a single ratings system that would warn parents of programming on television, video games, and wireless telephones that could be inappropriate for children, according to a Bloomberg News report in late August.
The Federal Communications Commission (FCC) launched an inquiry into the universal rating system with a goal "to shield children from inappropriate content in this rapidly changing media environment." That sounds great, but it's something that should be handled by parents and not the federal government.
Accordingly, it's fortunate that in a report this week (PDF) regarding the implementation of the Child Safe Viewing Act, the FCC found that the video game ratings scheme is a success and that "the video game industry already provides one of the most robust voluntary rating systems available." The report also concludes that the variety and variables within each media segment make it extremely difficult to manage.
... Read moreAre you ready to go digital? Almost 3 million American homes may not be...yet.
Friday is the deadline for the country's move from analog to digital TV. At that point, most analog signals will be shut off. But 2.8 million homes still lack the necessary equipment to receive digital transmissions, says a report released Wednesday by Nielsen.
The number of homes not ready for DTV represents 2.5 percent of the TV market. The report notes that younger, African American, and Hispanic households are disproportionately unready, while the elderly are the most ready.
Geographically, the greatest number of unprepared homes are in the Western U.S., where cable isn't as prevalent as in other parts of the country, says Nielsen. The highest number of ready viewers are in the Eastern U.S.
The digital switchover was originally set for February. But with too many people still unprepared, the government delayed the move. Without a digital TV, cable or satellite connection, or a converter box, viewers won't be able to tune into their favorite shows.
Nielsen is optimistic, though, noting that the delay from February to June gave more people time to get ready. And those still not prepared are expected to catch up.
"Since February, when the U.S. government postponed the transition for three months, the number of households that are completely unready has been cut in half - from 5.8 million to 2.8 million homes," said Sara Erichson, president of media client services at Nielsen. "Given the importance that television plays in the day-to-day life of most people, we expect that the most of the remaining unready homes will take the necessary steps to get ready once the stations make the final switch to digital transmission. We will continue to follow this trend closely."
From the government's end, the Federal Communications Commission expects some bumps in the road, but is optimistic.
The nationwide transition to digital TV is just 30 days away, and Federal Communications Commission officials are feeling much more positive about the switch than they were leading up to the previous deadline in February.
On Wednesday, the FCC received updates from various agencies helping to prepare for the new June 12 deadline for the switch to digital TV. In addition to adding more money to the converter box coupon program, efforts are already under way to get AmeriCorps volunteers to go into people's homes and help with converter box installation. Clinics have also been set up in hot-spot regions to help educate people about the program and to help them figure out how to install converter boxes and antennas.
Already some 170,000 homes have gone through one of these programs to have their converter boxes installed. The acting chairman of the FCC, Michael Copps, said he is impressed by the coordinated effort that is under way.
"In January I feared about where we were headed with this transition," he said. "But it has turned into an inspiring and enjoyable experience to see how these different agencies can work together. "
While Copps said he believes that Americans are better prepared now for the transition to digital television than they were prior to the February 17 deadline, he said that there will still be some people who will see blank TV screens on June 12, when all TV stations will be broadcasting in digital.
"Even though we are better prepared this time," he said. "There will still be disruptions for some consumers. And candor compels us to inform viewers of these issues."
To deal with the many people who might lose TV signals in June, the FCC has set up 4,000 call centers and is beefing up staffing to answer consumer phone calls. Commissioner Jonathan Adelstein pointed out during the FCC's meeting that only 15 percent of households in the U.S. were affected when some broadcasters transitioned to all digital broadcasts on the original February 17 deadline.
Anticipating complaints
He also anticipates a flood of complaints from consumers who are not prepared for the transition. But he is also optimistic about the progress the agency has made over the past three months.
"We've gotten to the 30-day countdown before," he said. "And I have to say I was a lot more nervous before than I am this time."
In an effort to help identify trouble spots before the hard deadline of June 12, the FCC is planning a soft-test of the digital switch on May 21. On that date, all broadcasters will be asked to switch to digital-only broadcast for a few minutes. People who have older TVs that have not been equipped with a converter box will be able to tell whether they are prepared to receive digital programming.
"This will be like a DTV stress test for consumers," Adelstein said. "Let's hope we do better than the banks did in their stress tests."
Three months ago, 6.5 million households were unprepared for the switch to digital TV, according to research firm Nielsen. At that time Congress voted to delay the transition from February to June. Now it's believed that the number of people who are unprepared for the transition is less than half that number, or roughly 3.5 million households.
Most of these people are either elderly, in a minority group, poor, or living in rural areas. The FCC and other agencies helping with the transition have been targeting these at-risk households to ensure they are prepared.
While most people are now aware of the transition to digital, the problem now is helping people get converter boxes to allow older TVs to receive digital signals and to help install that equipment. Coupons are available under a government program to help pay for converter boxes, which cost $40 to $80. But earlier this year, more than 4 million people were on a waiting list for the coupons after the government ran out of money to fund the program.
With new funding under the $787 billion economic stimulus bill, the backlog is now gone. And the group administering the program says it has enough money to provide the necessary coupons.
Viewers who watch TV via cable or satellite will not need a converter box and won't have to do anything to prepare for the digital transition.
Just last week, President Obama signed the DTV Delay Act into law. But despite appearances, the delay isn't mandatory: about one-third (650-plus) of the nation's TV stations will be pulling the plug on their analog towers by the end of Tuesday. The remaining stations will be taking advantage of the new legislation, transitioning to digital between March 14 and June 12.
Which stations are switching early? An updated document at the FCC's DTV Web site will let you know which (if any) stations are in your area (PDF). Here in New York--as in most large metro areas--no stations are transitioning early. But those of you with antennas in smaller or rural markets may begin to see stations blink out in the next 24 hours, if they haven't already.
Remember: anyone with cable, fiber, or satellite TV service shouldn't see any disruption in service. Likewise, anyone with an antenna attached to their DTV or DTV converter box should be up and running on the digital versions of their local stations. (See a side-by-side comparison of analog and digital broadcasts during New York City's October 2008 analog shut-off test, for example.)
Meanwhile, some analog stations will be running a "night light" service for the next few weeks--basically a public-service announcement confirming that antenna viewers need to get a DTV converter box if they wish to continue receiving the channel. (My take: if the FCC had mandated a more aggressive version of this sort of on-screen reminder months ago, people would've been better informed, and no delay would've been necessary.)
Anyone who still has questions can read the in-depth CNET Guide to the DTV Transition.
Frustrated or confused by the nondelay delay of the DTV switch? Sound off below.
Despite a regulator-approved delay to the nationwide digital TV switchover, more than a third of the nation's TV stations plan to begin broadcasting completely in digital next week.
The Federal Communications Commission on Tuesday released a list of 681 of the nation's 1,800 or so TV stations that plan to make the switch by February 17. TV stations were required to notify the FCC by Monday if they planned to turn off their analog TV signal on February 17.
Earlier this month, the House of Representatives passed a bill that moves the deadline for transitioning TV broadcast from analog to digital from February 17 to June 12. The Senate has also passed a similar bill. President Obama is expected to sign it into law shortly. However, a compromise provision allows broadcasters to transition to all-digital broadcasts early if they get permission from the FCC.
Congress approved the delay out of concern that 20 million people, most of whom are poor, elderly, and living in rural parts of the country, were not prepared for the transition after the government ran out of the $40 coupons it was issuing to help defray the cost of the converter boxes necessary to allow older TVs to get digital signals.
Stations have been preparing to cut off their analog broadcasts for the February 17 deadline for months. Leaving the analog signals on will likely cost them more money as they are required to pay for the additional electricity and facility costs of running multiple transmitters. Most stations have already been airing some programming in digital.
The major broadcast networks, including ABC, CBS, Fox, and NBC/Telemundo, have all agreed that their owned and operated stations would continue to broadcast in analog until the new DTV transition date.
To see which local stations plan to switch on or before February 17, check the list released by the FCC (PDF). The column labeled Nite Lite indicates whether the station plans to keep its analog signal going for 30 days past the February 17 analog cut-off date in order to provide emergency and DTV education information.
Over a quarter of all full-power broadcast TV stations could cut off their analog TV service on or before February 17 even though the official deadline has been extended another four months, according to the Federal Communications Commission.
Already 143 full-power TV stations have terminated broadcasting their analog signal. And another 60 stations have already informed the FCC that they would like to terminate broadcasting in analog before February 17. As of February 2, when acting FCC Chairman Michael Copps sent a letter to Congress urging them to delay the transition, another 276 broadcasters had told the FCC they intended to shut off their analog transmitters on February 17.
If all these TV stations go through with their plans, roughly 27 percent of the 1,796 full-power TV broadcasters in the U.S. will be broadcasting only in digital.
What does this mean for over-the-air TV viewers? Well, the FCC hopes that it won't disrupt TV viewing much. But for consumers who don't have a digital tuner built into their TV or haven't hooked up a digital converter box to their old TV, it could mean that they'll have fewer TV channels to watch.
Earlier this week, the House of Representatives passed a bill that moves the deadline for transitioning TV broadcast from analog to digital from February 17 to June 12. The Senate has also passed a bill pushing the date of the transition back to June 12. President Obama is expected to sign it into law shortly. As part of a compromise to get the bills through Congress, lawmakers added a provision that allows broadcasters to transition to all-digital broadcasts early .
The FCC met Thursday to discuss the process for allowing TV broadcasters to move to all-digital broadcasting early. Broadcasters must inform the FCC by 12 a.m. EST on February 10 if they intend to cut off their analog TV signal. And at that time, the FCC will have a better understanding of how many TV stations will actually go to all-digital broadcasts on or before February 17.
The agency has said it will likely allow most of these broadcasters that would like to transition to all digital early to do so, but Copps said that the agency reserves the right to deny broadcasters from switching early if it doesn't serve the public interest. Specifically, the FCC will try to make sure that in areas where a large number of people are not ready that there are some TV stations still transmitting analog signals until the June 12 deadline. The agency will also make sure that TV stations that are transitioning early are not interfering with other TV broadcasters, using their old analog channels.
TV stations that wish to switch to all-digital transmission on February 17 will have to provide ample notification to the public between now and then, an FCC spokesman said.
Copps has encouraged as many TV stations as possible to continue transmitting analog signals until the new deadline of June 12. The nation's largest broadcasters--ABC, CBS, Fox, and NBC/Telemundo--have all agreed that their owned and operated stations would continue to broadcast in analog until the new DTV transition.
Stations have been preparing to cut off their analog broadcasts for the February 17 deadline for months. Several TV stations throughout the country have tested switching off their analog transmission to make sure they are prepared as well as to make sure viewers are prepared.
TV broadcasters are making the switch to digital to free up valuable wireless spectrum. About 61 percent of all full-power broadcast TV stations are transmitting both analog and digital signals. Leaving the analog signals on until the new deadline of June 12 will cost them more money as they are required to pay for the additional electricity and facility costs of running multiple transmitters.
Congress passed the new legislation to delay the deadline because legislators and consumer advocates are concerned that 20 million people--most of whom are poor, elderly, and living in rural parts of the country--are not prepared for the transition; the government ran out of the $40 coupons it was issuing to help defray the cost of the converter boxes necessary to allow older TVs to get digital signals. There have also been reports that many consumers, who have already gotten converter boxes, are not able to connect them properly to their TVs.
The Federal Communications Commission helped clarify Thursday how it will handle requests from broadcasters to turn off their analog TV signals before the new June 12 deadline.
Acting FCC Chairman Michael Copps said during an open meeting that the agency would carefully evaluate which stations can turn off their analog signals before the June 12 deadline. The FCC will likely allow some stations to make the switch early, but it will try to ensure that not every station in a community makes the switch early, leaving unprepared viewers with no access to over-the-air TV.
"We reserve the right to deny those requests if we find that it would not serve the public interest or if it would frustrate Congress' goal of giving consumers adequate time to prepare," Copps said.
Copps also said during the meeting that the major broadcast networks, including ABC, CBS, Fox and NBC/Telemundo, have all agreed that their owned and operated stations would continue to broadcast in analog until the new DTV transition date of June 12.
Earlier this week, the House of Representatives passed a bill that moves the deadline for transitioning TV broadcast from analog to digital from February 17 to June 12. The Senate has also passed a bill pushing the date of the transition back to June 12. President Obama is expected to sign it into law shortly. As part of a compromise to get the bills through Congress, lawmakers added a provision that allows broadcasters to transition to all-digital broadcasts early if they get permission from the FCC.
Copps said Thursday that TV stations must notify the FCC by Monday February 9, if they plan to turn off their analog TV signal on February 17.
Stations have been preparing to cut off their analog broadcasts for the February 17 deadline for months. Leaving the analog signals on will likely cost them more money as they are required to pay for the additional electricity and facility costs of running multiple transmitters. Most stations have already been airing some programming in digital.
Congress passed the new legislation to delay the deadline, because legislators and consumer advocates were concerned that 20 million people, most of whom are poor, elderly, and living in rural parts of the country, were not prepared for the transition after the government ran out of the $40 coupons it was issuing to help defray the cost of the converter boxes necessary to allow older TVs to get digital signals. There have also been reports that many consumers, who have already gotten converter boxes, are not able to connect them properly to their TVs.
The legislation delays the mandated switchover to all digital broadcasts another four months. Chairman Copps said he hopes that the additional time could be used to improve government outreach to help prepare for the transition.
An additional $650,000 is expected to be granted through the government's economic stimulus bill to complete the funding of the coupon program.
While the delay will give the government and other organizations more time to help prepare consumers, it could also confuse consumers who have already heard of the February 17 deadline. What's more with some broadcasters continuing to broadcast their analog signals and others switching to digital, some consumers could still lose access to some TV stations before they are ready.
National Association of Broadcasters said it will begin airing revised viewer alerts with the new date.
The first major test of the switch to digital TV left many viewers in Wilmington, N.C., looking at blank screens and calling local TV stations, according to several news reports.
On Monday, the Federal Communications Commission conducted the first major real-world test of the switch to digital television. Wilmington, N.C., volunteered to be the guinea pig for the switch, agreeing to turn off its analog broadcast signals about six months before the rest of the country will do it.
At noon EDT Monday, broadcasters flipped the switch to all digital transmission. And almost immediately, TV broadcasters and the FCC hotline were inundated with phone calls from local residents in the area who weren't prepared for the transition or couldn't figure out how to use the converter boxes that should have allowed their older TVs to get the digital signal, The Wall Street Journal reported.
The test in Wilmington is key to minimizing mass chaos when the entire country makes the transition to all digital broadcasts on Feb. 17, 2009, a move mandated by Congress so that wireless spectrum could be used more efficiently. The agency has already auctioned off large chunks of the spectrum to be used for wireless broadband services.
For the majority of TV viewers across the country who own new digital-ready TVs or subscribe to cable or satellite TV, the switch is a non-issue. But for the millions of households that get free TV and own older TVs, they will need a digital converter box to be able to view TV on their older TVs.
The government and broadcast industry have spent millions of dollars over the past several months to educate the public about the transition. And the FCC has been offering vouchers to subsidize the cost of the digital converter boxes. But many in Congress worry that all the public service announcements and vouchers haven't been effective. And when the transition comes, people won't be prepared.
The test in Wilmington, where officials had made a concerted effort to get the word out about the switch, is a good indication that more education is needed. According to the Journal, by mid-afternoon roughly 74 calls had been placed to two TV stations, WSFX-TV, a Fox affiliate, and WECT-TV, an NBC affiliate. The newspaper also reported the FCC received about a hundred calls on its toll-free help line in the first few hours after local broadcasters shut off their analog signals. Most of the calls were from people who needed help programming the new digital converter boxes, the newspaper said.
Even though the switch to digital in Wilmington, N.C., wasn't as smooth as some might have hoped, FCC Chairman Kevin Martin said it served its purpose, which was to provide valuable lessons for what needs to be done to make sure the nationwide transition goes smoothly.
"The measure of success here in Wilmington is not what happens today or tomorrow here, but it's what we learn from it," he told the Journal in an interview. "If no one called today, that wouldn't necessarily mean it's a success."
