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Friday, October 24, 2008

Of Hobgoblins and Kings
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My once and present boss Ken Ferree recently remarked of the FCC:

Although it is true that a foolish consistency is the hobgoblin of simple minds, a foolish inconsistency is worse. The FCC is guilty of the latter.

The subjects Ferree addressed were twofold. First, the inconsistency between the FCC's recent decision to intervene on the side of the programmer, NFL Network, in its program carriage dispute with cable operator Comcast Corporation and the agency's calls for the industry to adopt an "a la carte" pricing model to ensure that consumers only receive programming channels they affirmatively choose to receive from their multi-channel video programming distributor. And second, the FCC's purchase of labeling rights - ostensibly a form of "embedded advertising" - on a NASCAR racing car at the same time it is contemplating imposing limits on the ability of commercial advertisers to do likewise.

Add to that list a little noted inconsistency between the FCC's proposed rules to auction 25 MHz of spectrum for "Advanced Wireless Service" (AWS-3) and its recent order condemning Comcast's management of the use of peer-to-peer (P2P) communications on its network by its Internet service subscribers. Under the agency's AWS-3 auction proposal, the winning bidder is required to provide "free" nationwide wireless broadband service (targeted for the benefit of Silicon Valley start-up M2Z Networks) and is further required to use "best efforts" to provide family-friendly access to the Internet by using commercially available content filtering and, if that content filtering is ineffective, to use other means such as "limiting access" to entire classes of applications like peer-to-peer file sharing. Section 27.1193 of the proposed AWS-3 rules contains a provision entitled, "Content Network Filtering Requirement," that stipulates, in subsection (b)(2):

Should any commercially-available network filters installed not be capable of reviewing certain types of communications, such as peer-to-peer file sharing, the licensee may use other means, such as limiting access to those types of communications as part of the AWS-3 free broadband service, to ensure that inappropriate content as defined in paragraph (a)(1) not be accessible as part of the service.

Subsection (a)(1) of the provision states that the AWS-3 licensee must provide as part of its free broadband service a network-based mechanism:

That filters or blocks images and text that constitute obscenity or pornography, and, in context, as measured by contemporary community standards and existing law, any images or text that otherwise would be harmful to teens and adolescents. For purposes of this rule, teens and adolescents are children 5 through 17 years of age

Setting aside for the moment (i) the oddity of classifying 5 year olds as "adolescents;" (ii) the difficulty of determining what content would be "harmful" to both a 5 year old and a 17 year old; and (iii) the other serious drawbacks of "rigging" spectrum auctions to the benefit of certain private interests and the detriment of many others, the potential government-sanctioned blocking of P2P communications by an AWS-3 licensee is flatly inconsistent with the FCC's action against Comcast. The FCC literally excoriated Comcast for its network management practices on the grounds that they had the effect of blocking certain users' access to applications relying on P2P protocols such as BitTorrent. But in the auction context, the FCC explicitly permits its AWS-3 licensee to completely block access to P2P file sharing so that the free wireless broadband service can be safely used by the nation's 5 year olds.

Not only is an AWS-3 licensee permitted to block access to applications relying on P2P protocols, pursuant to subsection (a)(2) of the proposed rules, the licensee is only required to "inform new customers that the filtering is in place and must otherwise provide on-screen notice to such users." In its Comcast P2P order, the FCC stated that a "hallmark" of whether a network management practice is "reasonable is whether a provider discloses the practice to its customers." Here, the AWS-3 licensee is only required to notify new customers that "filtering is in place." If commercially available filtering technology is ineffective (as it likely will be) and access is blocked altogether by a "network based-mechanism," how will customers learn that their entitlement to "access the lawful content of their choice" and "run applications and use services of their choice," has been completely curtailed by their broadband service provider? And, if notice is provided, does that trump Internet blocking?

Just as the FCC would do well to avoid promulgating silly behavioral rules or policies with which it will not abide, it should avoid picking winners and losers in the communications marketplace it is charged with overseeing. Public confidence in the effectiveness and fairness of its government regulators has been severely undermined by the current financial crisis. It is especially important that the FCC avoid the appearance of partiality and fecklessness its latest actions suggest.

posted by Barbara Esbin @ 11:14 AM | Broadband , Communications , Spectrum , The FCC

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