Oakland Wireless appears to be in trouble. Add it to the list.

[Actually, is anyone out there keeping a running tally of the muni failures? If so, let me know so I can just start linking to it instead of all the random blog links. ]

[Note: This is the third in a series of essays about the legacy of the Supreme Court's FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary on July 3rd. Part 1, presented a general overview of the issue. Part 2 sketched a short history of FCC indecency regulation. This installment will examine the misguided logic of the Court's reasoning in Pacifica as it stood in 1978. Part 4 will then examine why that logic is even more misguided in light of modern developments.]

For the past three decades, regulation of television programming has been premised on the "pervasiveness rationale" as articulated in the landmark Supreme Court case FCC v. Pacifica Foundation. In Pacifica, in a 5-4 plurality decision, the Court held:

Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.

In one portion of the decision, Justice John Paul Stevens, who authored the majority opinion, even referred to broadcast signals as an "intruder" into the home.

There were always serious problems with the "media-as-invader" logic of Pacifica.

During last night's NBA draft, ESPN basketball analyst Fran Fraschilla, analyzing the 20th pick by the Charlotte Bobcats of Frenchman Alexis Ajinca, a 7-foot center with a 7'-8" wingspan, said the NBA has some major issues drafting foreign players:

This is going to be very interesting. He may actually benefit from staying overseas an extra couple years. The interesting thing about foreign guys right now -- the value of the dollar versus the euro, being picked 20th and lower in the first round, really becomes an issue.

Forget $140-oil -- when the weak dollar pushes potential NBA basketball players back to the French A-League, you know we're in trouble.

Beyond what Jim Harper already said about it, I was searching for the right words to express how silly I find the far-fetched rhetorical B.S. being flung about to describe this quixotic new "Broadband for Everyone" crusade. And then I found this great little comment by Steve Boriss over at The Future of News blog. He really nails the utopian silliness that animates this movement in his essay, "Net neutrality proponents' ideals as contradictory as French Revolution's":

Government regulation always begins with a call from those who claim they are only trying to right some hard-to-argue-against wrongs, but whose consequences are poorly thought out. Today we learn of a new such party, InternetForEveryone.org, which has a mission so contradictory that it almost makes my head explode. Their ideals call to mind the French Revolutionists, who called for "liberty, equality, and fraternity," not realizing that liberty and equality are incompatible -- that making people equal requires liberty-suppressing force. The new group calls for guaranteed high speed Internet access for everyone (a basic right of all Americans, they say), lower usage prices, more competition, and more innovation. Tell me, if we force Internet providers to give access to everyone, then force them to charge less than the marketplace tells them they should, where will the money come from for innovation? And what would happen to the potential profits that might entice others to join in the competition? Guess it will have to come from taxpayers and that government will have to run the show. InternetForEveryone.org claims to be neutral on the net, but it is surely not neutral on government -- they want a lot more of it.

Exactly. It's 'something-for-nothing' economics meets utopian egalitarianism as applied to broadband. But, as Steve notes, there is no free lunch. Every time I debate one of the people or groups involved in this movement, I always ask questions like: What about incentives to invest and innovate? What role do they play in your model? Where is the risk capital going to come from to build these high-fixed cost networks going forward? How will those networks be upgraded over time? And so on.

And they never have any good answers. To the extent they have any answers at all, it always seems to come back to the idea of treating broadband networks like a lazy public utility. You know, because we've had so much success with those! And yet, this crowd seems wants to paint a revisionist history of public utilities and try to convince us that we are just ONE MORE muni fiber or muni wi-fi experiment away from getting it right! Uh-huh, sure we are. Meanwhile, taxpayers are bailing out those past failed experiments all over America right now.

The fundamental problem with the entire Net neutrality movement can be summarized as follows: They obsess about investment and innovation at the margin of networks but spend little time thinking about the preconditions for serious innovation and investment at the core of networks. Government micro-management ain't ever going to get us where we need to be in that regard.

[Note: This is the second in a series of essays about the legacy of the Supreme Court's FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary on July 3rd. Part 1, a general overview of the issue, is here.]

This morning I attended an excellent Freedom Forum conference on "Indecency & Violence in the Media: FCC v. Pacifica 30 Years Later." At the event, Lili Levi of the University of Miami School of Law delivered a terrific address entitled "A Short History of the Indecency & Media Violence Wars." (Incidentally, she is also the author of a highly recommended paper on the topic that is available on SSRN: "The FCC's Regulation of Indecency."

Prof. Levi sketched out what she called the "5 Eras of FCC Indecency Enforcement." Below I will summarize the major developments / trends from each era that she outlined for us today:

Last week PFF co-hosted an event highlighting the crucial importance of immigration to the U.S. economy. At the half-day event with our partners at the National Chamber Foundation, I first interviewed Jason Riley of The Wall Street Journal and author of the new book Let Them In: The Case for Open Borders. Then five immigration experts discussed the policy and politics of high-end tech and science immigration. You can view the webcast here.

Maybe columnist George Will was watching. Writing from Palo Alto today, Will makes the pro-immigration case with characteristic eloquence:

Modernity means the multiplication of dependencies on things utterly mysterious to those who are dependent -- things such as semiconductors, which control the functioning of almost everything from cellphones to computers to cars . . . . Yet their nation's policy is the compulsory expulsion or exclusion of talents crucial to the creativity of the semiconductor industry that powers the thriving portion of our bifurcated economy. While much of the economy sputters, exports are surging, and the semiconductor industry is America's second-largest exporter, close behind the auto industry in total exports and the civilian aircraft industry in net exports.

The semiconductor industry's problem is entangled with a subject about which the loquacious presidential candidates are reluctant to talk -- immigration, specifically that of highly educated people. Concerning whom, U.S. policy should be: A nation cannot have too many such people, so send us your PhDs yearning to be free.

Instead, U.S. policy is: As soon as U.S. institutions of higher education have awarded you a PhD, equipping you to add vast value to the economy, get out. Go home. Or to Europe, which is responding to America's folly with "blue cards" to expedite acceptance of the immigrants America is spurning.

It's astonishing we are still debating this topic. More than a decade ago George Gilder was exposing the same self destructive behavior George Will fights today:

The underplaying of immigration as an economic force stems from a basic flaw in macroeconomic analysis. Economists fail to account for the indispensable qualitative effects of genius. Almost by definition, genius is the ability to generate unique products and concepts and bring them to fruition. Geniuses are literally thousands of times more productive than the rest of us. We all depend on them for our livelihoods and opportunities. . . .

Consider Intel Corp. Together with its parent, Fairchild Semiconductor, Intel developed the basic processes of microchip manufacture and created dynamic and static random access memory, the micro-processor, and the electrically programmable read-only memory. In other words, Intel laid the foundations for the personal computer revolution and scores of other chip-based industries that employ the vast bulk of U.S. engineers today.

Two American-born geniuses, Robert Noyce and Gordon Moore, were key founders of Fairchild and Intel. But their achievements would have been impossible without the help of Jean Hourni, inventor of planar processing; Dov Frohmann-Benchkowski, inventor of electrically erasable programmable ROMs; Federico Faggin, inventor of silicon gate technology and builder of the first microprocessor; Mayatoshi Shima, layout designer of key 8086 family devices; and of course Andrew Grove, the company's now revered CEO who solved several intractable problems of the metal oxide silicon technology at the heart of Intel's growth. All these Intel engineers -- and hundreds of other key contributors -- were immigrants.

The next Intels, the next Googles -- indeed, the next American century -- requires our openness to and recruitment of these "geniuses from abroad."

Next Thursday, July 3rd will mark the 30th anniversary of the Supreme Court's landmark First Amendment decision, FCC v. Pacifica Foundation. Sadly, but somewhat ironically, the anniversary of this decision comes just a few days after we lost America's greatest modern social satirist George Carlin, whose infamous "seven dirty words" monologue prompted the Supreme Court's Pacifica decision. After a Pacifica Foundation radio station aired Carlin's monologue and the FCC took action against that station, a court battle ensued regarding whether the agency had the authority to censor "indecent" content on broadcast radio and television stations.

Unfortunately, when the Supreme Court handed down its Pacifica decision 30 years ago, the First Amendment lost. By a narrow 5-4 vote, the court held that the FCC could impose fines on broadcasters who aired indecent content during daytime and early evening hours. The Court used some rather tortured reasoning to defend the proposition that broadcast platforms deserved lesser First Amendment treatment than all other media platforms. The lynchpin of the decision was the so-called "pervasiveness theory," which held that broadcast speech was "uniquely pervasive" and an "intruder" in the home, and therefore demanded special, artificial content restrictions.

Over the course of the next week, I plan on posting some thoughts about that twisted logic and the legacy of the Pacifica decision in general. In part 2, I'll sketch out the broad outlines of FCC indecency enforcement over the past 70 years. In part 3, I'll be highlighting some of the original deficiencies of the "pervasiveness doctrine." Part 4 will highlight the irrelevancy of Pacifica and the pervasiveness doctrine in light of recent technological developments. These (and potentially other) installments will highlight why Pacifica was always bad law and is even more misguided and unjust in light of recent marketplace developments.

Global handset manufacturing giant Nokia has purchased the shares they didn't already own in Symbian, Ltd., the company formed in 1998 as a partnership among Ericsson, Nokia, Motorola and Psion and the developer of the Symbian mobile operating system, by far the world's leading OS for "smart mobile" phones with 67% of the market, followed by Microsoft on 13%, with RIM on 10% (source).

But wait, there's more (per Engadget)!

Here's where it gets interesting, though: rather than taking Symbian's intellectual private for Nokia's own benefit, the goods will be turned over to the Symbian Foundation, a nonprofit whose sole goal will be the advancement of the Symbian platform in its many flavors. Motorola and Sony Ericsson have signed up to contribute UIQ assets, while NTT DoCoMo (which uses Symbian-based wares in a number of its phones) will be donating code as well.

Other Symbian Foundation members include Texas Instruments, Vodafone, Samsung, LG, and AT&T (yep, the same AT&T that currently sells precisely one Symbian-based phone), so things could get interesting. The move clearly seems to be a preemptive strike against Google's Open Handset Alliance, LiMo, and other collaborative efforts forming around the globe with the goal of standardizing smartphone operating systems; the writing was on the wall, and Symbian didn't want to miss the train. Total cash outlay for the move will run Nokia roughly €264 million -- about $410 million in yankee currency.

Other reports note that the Symbian Foundation will eventually take Symbian open source, and that this move is as much as response to Apple's closed iPhone platform as it is to Gogole's open Android and LiMo platforms. (Although it is intriguing to note that AT&T, Apple's exclusive U.S. partner for the iPhone, is among the backers of the new Symbian Foundation, perhaps indicating that even AT&T is hedging its bets.)

The fact that we will soon see three open source platforms (counting Google's Android and LiMo) competing for market share provides yet another measure of the exceptionally high degree of competition in the wireless industry.

MIT's Technology Review has a great review of a new biography of Georges Doriot (Wikipedia) by Businessweek Editor Spencer E. Ante entitled, Creative Capital: Georges Doriot and the Birth of Venture Capital. Born in France, Doriot fought in World War I, then studied at Harvard Business School, served as director of the U.S. military's Military Planning Division during World War II as a brigadier general, and in 1946 launched American Research and Development Corporation (ARD) as the first publicly owned venture capital firm.

Doriot's legacy looms large today, even if his name is new to most:

Contemporaneously with ARD's watershed investment in [Digital Equipment Corporation], others began walking the trails Doriot had blazed: Arthur Rock (a student of Doriot's in the Harvard class of 1951) backed the departure of the "Traitorous Eight" from Shockley Semiconductor to form ­Fairchild Semiconductor in 1957, then funded ­Robert Noyce and ­Gordon Moore when they left ­Fairchild to found Intel; ­Laurance ­Rockefeller formed ­Venrock, which has since backed more than 400 companies, including Intel and Apple; Don ­Valentine formed Sequoia Capital, which would invest in Atari, Apple, Oracle, Cisco, Google, and YouTube.

Doriot himself would likely have felt at home among today's embattled and outnumbered regulation-skeptics in the technology policy community:

he opposed both the dirigiste political economy of his native France and the tax hikes and anticompetitive laws enacted in the United States under the New Deal. Such regulations, he maintained, arrogated to bureaucrats the function of the markets; their worst feature was that they let government lend money to failing businesses. Ante notes that a former colleague of Doriot's, James F. Morgan, recalled him as "the most schizophrenic Frenchman I've ever met"--devoted to his original land's wine, cuisine, and language even as "the French capacity to make very simple things complicated drove him nuts."

Couch potatoes of America, have no fear... Your friendly neighborhood super-regulators are about to swoop in and save you from the scourge of loud TV ads and "illegal" product placements! As we all learned in our high school Civics 101 classes, this is why the American Revolution was fought: We Americans have an unambiguous constitutional birthright to be free of the tyranny of "excessive loudness" during commercial breaks and pesky product promos during our favorite network dramas. (Seriously, it's right there in the footnotes to the Bill of Rights; you probably just missed it before.)

Rep. Anna Eshoo (D-Calif.) has the first problem covered. She and her House colleague Rep. Zoe Lofgren (D-Calif.) are proposing H.R. 6209, the "Commercial Advertisement Loudness Mitigation Act." (Oh, isn't that so cute! The "C.A.L.M. Act"! How very, very witty.) The CALM Act would address "volume manipulation" in TV ads by making sure that TV ads are not "excessively noisy or strident." (Strident! We Americans hate "strident" ads.) The bill would empower regulators at the Federal Communications Commission to take steps to ensure that "such advertisements shall not be presented at modulation levels substantially higher than the program material that such advertisements accompany; and, the average maximum loudness of such advertisements shall not be substantially higher than the average maximum loudness of the program material that such advertisements accompany."

Clearly, this is valuable use of our regulators' time. I look forward to the day when I can visit the FCC and see my tax dollars at work as teams of bureaucrats closely monitor each episode of "Desperate Housewives" and "Swingtown" in search of such malicious volume manipulation during the commercial breaks. (Incidentally, where is the form I need to fill out to get that job? Heck, I'll take minimum wage pay to do this all day long.)