Little Alice quickly discovers the meaning of "arbitrary and capricious" when she ventured into the Queen's Croquet Grounds in Lewis Carroll's "Alice's Adventures in Wonderland." "Off with their heads!" is the standard refrain of the Queen of Hearts when confronted with anyone incapable of playing the game according to her rules, which Alice quickly realizes means no rules at all. Late on Christmas Eve, the FCC's Media Bureau issued a similar edict to Chief Administrative Law Judge Richard Sippel, who was tasked with presiding over six program carriage cases brought by WealthTV, Mid-Atlantic Sports Networks and NFL Enterprises against various cable operators, summarily dismissing him from the cases. "Off with his head!" cried the Media Bureau Chief.

Some history is required to understand the full import of what is happening down this particular rabbit-hole. In October, the Media Bureau had referred the four program carriage complaint cases, and a similar, but not identical complaint filed by NFL Enterprises against Comcast, for resolution of disputed issues of material fact by hearing before an Administrative Law Judge; the cases were initially assigned to ALJ Arthur Steinberg. The Media Bureau referred the cases to the ALJ in a 57 page Hearing Designation Order, which all but found the cable operators guilty of discrimination against the unaffiliated programming networks based solely on allegations in the paper record before the Bureau. Unfortunately, as comprehensive as the HDO was concerning the Bureau's tentative findings and conclusions, the HDO failed in its main obligation, which is to "designate" the issues to be resolved by the ALJ at hearing. Thus, five days later an "erratum" was released purporting to state the issues designated for resolution.

Before commenting on Lawrence Lessig's latest call to abolish the Federal Communications Commission (he issued a similar call for the FCC's abolition earlier this year, which I commented on here), let's recall what Tim Lee posted yesterday about "Real Regulators":

Too many advocates of regulation seem to have never considered the possibility that the FCC bureaucrats in charge of making these decisions at any point in time might be lazy, incompetent, technically confused, or biased in favor of industry incumbents. That's often what "real regulators" are like, and it's important that when policy makers are crafting regulatory scheme, they assume that some of the people administering the law will have these kinds of flaws, rather than imagining that the rules they write will be applied by infallible philosopher-kings.

Ironically, Prof. Lessig -- who typically defends many forms of high-tech regulation like Net neutrality and online content labeling -- is essentially agreeing with Tim's critique of bureaucracy. But Lessig seems to ignore the underlying logic of Tim's critique and instead imagines that we need only reinvent bureaucracy in order to save it. But I'm getting ahead of myself. First, let's hear what Lessig proposes.

In a Newsweek column this week entitled "Reboot the FCC," Lessig argues that the FCC is beyond saving because, instead of protecting innovation, the agency has succumb to an "almost irresistible urge to protect the most powerful instead." Consequently, he continues:

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.

As was the case with his earlier call to "blow up the FCC," I am tickled to hear Lessig call for shutting down an agency that many of us have been fighting against for the last few decades. (Here's a 1995 blueprint for abolishing the FCC that I contributed to, and here's PFF's recent "DACA" project to comprehensively reform and downsize the agency.)

But is Lessig really calling for the same sort of sweeping regulatory reform and downsizing that others have been calling for? And has he identified the real source of the problem that he hopes to correct? I don't think so. There are 3 basic problems with the argument Lessig is putting forward in his essay. I will address each in turn.

ICANN's plan to begin accepting applications for new generic top-level domains (gTLDs) in mid-2009 may have been derailed by last week's outpouring of opposition from the global business community and the United States Government (USG). Having been involved with ICANN for over a decade and having served on its Board for three years, I've never seen such strong and broad opposition to one of ICANN's proposals.

This past June, the ICANN Board directed its staff to draft implementation guidelines based upon the policy recommendations of the Generic Names Supporting Organization (GNSO) that ICANN should allow more gTLDs such as .cars to supplement existing gTLDs such as .com. In late October, the ICANN staff released a draft Applicant Guidebook detailing its proposal. The initial public forum on this proposal closed on December 15-with over 200 comments filed online.

In its December 18 comments, the USG questioned whether ICANN had adequately addressed the "threshold question of whether the consumer benefits outweigh the potential costs." This stinging rebuke from the Commerce Department merely confirms the consensus among the 200+ commenters on ICANN's proposal: ICANN needs to do more than merely rethinking its aggressive time-line for implementing its gTLD proposal or tweaking the mechanics of the proposal on the edges. Instead, ICANN needs to go back to the drawing board and propose a process that results in a responsible expansion of the name space, not merely a duplication of it.

Regular readers will recall my great interest in video games and the public policy debates surrounding efforts to regulate "violent" games in particular. One thing I bring up in almost every essay I write on this subject is how fears about kids and video games are almost always overblown and that kids can typically separate fantasy from reality. Nonetheless, kids have active imaginations and adults sometimes fear that which they cannot understand or appreciate. Friendly mentoring and open-minding parenting can go a long way to encouraging kids to make smart choices and understand where to draw lines, whereas efforts to demonize video games and youth culture almost always backfire.

Anyway, what got me thinking about all this again was an entertaining column in today's Washington Post by Ron Stanley ("Who Needs a TV to Play Video Games"), which describes the author's experiences with his nephew when they played out video game-like scenarios using traditional toys and household items. It's a wonderful piece worth reading in its entirety, but here's the key takeaway that I'd like to discuss:

There was no evidence that television and video games had stifled the kids' creativity. Nor was there any evidence that technology had made them smarter than earlier generations. They simply had a different frame of reference, one that included video games and computers as well as ponies, pet stores and sword fights. Children play with the tools at hand, and they're great at thinking metaphorically -- at imagining that a landspeeder is a sentient robot or that a stick is a gun or that salt-and-pepper shakers are a bride and groom or that a card table is a horse's stable.

They're also geniuses at figuring out simple mechanics. My 6-year-old nephew had to explain to me that miniature low-rider cars don't roll very well on carpet and will flip over more than if racing on hardwood floors. Novice that I was, I was choosing cars that looked the coolest. And they are geniuses at intuiting rules and systems, and at re-creating these rules and systems in their own play. Children who play lots of card games will invent their own card games. Children who play lots of board games will invent their own board games. And children who play lots of video games will invent their own video-game-like games when they don't have access to the game controllers.

The news today is filled with reports, here and here for example, of advice Obama Transition team members are receiving about improving broadband deployment and adoption. Amidst all of the calls for this or that favorite regulatory or economic stimulus program, I found a refreshing piece by Andrew Seybold in FierceWireless suggesting that policy makers focus on the economics of broadband, rather than the technology. After commenting on the FCC's fixation with the concept of auctioning the AWS-3 spectrum with conditions that it be used to build a nationwide wireless broadband service, a portion of which will be provided as "free lifeline wireless broadband," Seybold suggests that this, like other government-created attempts to increase broadband deployment -- such as muni-WiFi and Broadband Over Powerline -- will fail to achieve their goals. Such plans will be unable to provide broadband service in the inner city to those who cannot afford it as well as to rural America where it is simply unavailable because these plans have overlooked the economics of infrastructure deployment.

For these and other FCC policy moves such as opening up the TV white spaces, Seybold asks the critical question: who will make the investments necessary to make these plans work?

All of these ideas and attempts to provide broadband for the 100 million people (33 percent of the U.S. population) who either do not have access to broadband or cannot afford today's offerings are well meaning, but they miss the mark. Someone has to pay for free access. Someone has to pay for the infrastructure, the devices and connection to the Internet. For someone to invest the money for all this, there has to be a reasonable return on the investment, OR the investment has to be paid for from some other source such as the federal government or with tax incentives for those who build the system. Perhaps some of the Internet companies believe they can pay for it with ad-based revenue.

[This represents a bit of a departure from the traditional format of my ongoing "Media Deconsolidiation Series," but you will see how it ties in...]

So, some guy from the (Un)Free Press -- the activist group that wants to regulate every facet of the media and broadband universe -- has created a scary looking chart about "Information Control" [seen below]. It's based loosely on the Periodic Table of Elements, you know, to give it the aura of science and fact. In reality, it's just another silly scare tactic that tells us very little about the true nature of our modern media marketplace.

The chart is accompanied by the typical Free Press gloom-and-doom rhetoric about the unfolding media apocalypse. "Nearly everything you see, hear and read that isn't from a friend -- whether on TV, the radio, or even on the Web -- comes from a for-profit gatekeeper." And then comes the obligatory A.J. Liebling quote about how "Freedom of the press belongs to those who own one," followed quickly by the typical punch line about how just a handful of companies (in this case 55 of 'em) are puppeteering all our thoughts in America today:

Combined, these 55 powerful media and telecommunications companies raked in total revenues in excess of $700 billion in 2007. Together they own over 540 TV stations, 2000 radio stations, 430 newspapers, 230 magazines, and 80 major cable channels in the United States. They provide paid TV service to approximately 52 million subscribers and broadband Internet service to over 57 million subscribers. They're the bottlenecks through which our news, our entertainment, and our political discourse must travel. What they want to promote becomes prominent; what they suppress stays out of the mainstream. As such, these companies are the elements of information control.

Oh my God! We are all just brainwashed sheep!

Except we're not. It amazes me how these "information control" and "media monopoly" myths keep getting widespread circulation. But the first thing to note is how the media reformistas can't get even their story straight when it comes to how many "monopolists" are supposedly out there today. As I noted in my 2005 book, Media Myths: Making Sense of the Debate over Media Ownership, the critics seem to just pull their numbers out of a hat. Some say as few as 3 companies control everything. Others says 5 or 6. Still others say it might be a few dozen. And now this guy says its 55. Hey, that's progress that even the Free Press should love!

Regardless of the number, does this really represent the totality of our modern media universe? Do those 55 companies really "own most of the 21st-century presses in America" as the "Info Control" website states? Answer: NOT. EVEN. CLOSE. Here are the facts. [I happened to have compiled them for a PFF special report entitled Media Metrics: The True State of the Modern Media Marketplace to debunk myths just like this.]

I was happy to see the discussion over The Wall Street Journal's Google/net neutrality story. Always good to see holes poked and the truth set free.

But let's not allow the eruptions, backlashes, recriminations, and "debunkings" -- This topic has been debunked. End of story. Over. Sit down! -- obscure the still-fundamental issues. This is a terrific starting point for debate, not an end.

Content delivery networks (CDNs) and caching have always been a part of my analysis of the net neutrality debate. Here was testimony that George Gilder and I prepared for a Senate Commerce Committee hearing almost five years ago, in April 2004, where we predicted that a somewhat obscure new MCI "network layers" proposal, as it was then called, would be the next big communications policy issue. (At about the same time, my now-colleague Adam Thierer was also identifying this as an emerging issue/threat.)

Gilder and I tried to make the point that this "layers" -- or network neutrality -- proposal would, even if attractive in theory, be very difficult to define or implement. Networks are a dynamic realm of ever-shifting bottlenecks, where bandwidth, storage, caching, and peering, in the core, edge, and access, in the data center, on end-user devices, from the heavens and under the seas, constantly require new architectures, upgrades, and investments, thus triggering further cascades of hardware, software, and protocol changes elsewhere in this growing global web. It seemed to us at the time, ill-defined as it was, that this new policy proposal was probably a weapon for one group of Internet companies, with one type of business model, to bludgeon another set of Internet companies with a different business model.

This is the second in a series of articles about Internet technologies. The first article was about web cookies. This article explains the network neutrality debate. The goal of this series is to provide a solid technical foundation for the policy debates that new technologies often trigger. No prior knowledge of the technologies involved is assumed.

This is just a listing of the installments of my ongoing "Media Deconsolidation Series." I needed to create a single repository of all the essays so I could point back to them in future articles and papers. For those not familiar with it, this series represents an effort to set the record straight regarding the many myths surrounding the media marketplace. These myths are usually propagated by a group of radical anti-media regulatory activists who I call the "media reformistas." Sadly, however, many policymakers, journalists, and members of the public are buying into some of these myths, too.

In particular, I have spent much time here debunking the notion that rampant consolidation is taking place and that media operators are only growing larger and devouring more and more companies. In fact, nothing could be further from the truth. Over the past several years, traditional media operators and sectors have been coming apart at the seams in the face of unprecedented innovation and competition. The volume of divestiture activity has been quite intense, and most traditional media operators have been getting smaller, not bigger. As a result, America's media marketplace is growing more fragmented and atomistic with each passing day.

Anyway, here's the series so far...

Last week I attended the Family Online Safety Institute's (FOSI) outstanding 2nd annual conference and was pleased to host two sessions during the day-long event. The event brought together the best and the brightest in the field of online safety issues for an in-depth discussion of the issues and policies surrounding how to better protect our kids online while still preserving our First Amendment rights and the vibrancy of the Internet.

It was also my great honor to be one of the recipients of "The Family Online Safety Institute Award for Outstanding Achievement," which is, "is awarded to those individuals who have demonstrated an outstanding commitment to advancing the goal of a safer Internet." I was one of eight people involved in the ceremony, and they all deserved it much more than me! [Picture of awardees below and more info about each of them here.] And you can find out much more information about the event, panels, and keynote speeches here. It was a great conference thanks to the tireless efforts of my friend Stephen Balkam, CEO of FOSI, and his outstanding staff.