Today was the first of several indecency days in my communications law class.  So just why do we treat broadcast and cable differently? 

At the end of it all, after we had carefully taken apart Pacifica and ACT III and decided that the whole construct was pretty incoherent and vague, I asked the class how they felt about having broadcast indecency rules eradicated.

I got a mixed reaction.  Sure, the legal part doesn't make sense, but if the rules go away the market will probably want more and more adult material.  And that'll be disturbing both to the people who have kids and to the people who don't have kids but want "safe" television and radio during the day.

This is not a generation of First Amendment absolutists.  In other classes, I've also found that this is not a generation of privacy/civil liberties absolutists either -- they're often comfortable with searches and surveillance of various kinds.  In some cases (definitely not all) they're willing to believe that all of that apparatus is likely to make us safer.  No big conclusions here, just noticing.

(I think my students are great.  Hi, students!)

Someone emailed me this afternoon, saying "To get web access in a way that supports your 'don't support the telephone monopolies' campaign, where do I go?  Whom to tell my friends to switch to?  (I've had it with my Verizon dsl -- too slow for my kids videos on YouTube), but aren't the cable companies just as problematic?"

Well, there really isn't anywhere to go -- although Verizon is not the same as AT&T, and Verizon FiOS might be a good solution for my email correspondent if it exists in his neighborhood.

There's interest today in a feasibility study [warning, enormous PDF] for city-wide municipal fiber in San Francisco.  It's expensive ($560 million) but bold.  Oren Sreebny says it's fascinating, and I agree. 

But it's not clear that fiber is necessarily neutral -- indeed, this article suggests cities think fiber networks would have to be prioritized in order to pay off.

I share my email friend's despair at speeds here; from my school connection I can't use VoIP or watch streaming videos of hearings and arguments.  Maybe we'll all be moving to San Francisco.

Sascha Meinrath says it would cost $15-20 million to provide all of NYC with a wireless network.  It hasn't happened for a long list of reasons -- problems with contracts, turf wars, vendors, all kinds of reasons.

According to the NYT, NYC just spent $140 million to build a super-duper hub-and-spoke wireless system for the police to use in the subways, and the city isn't done.  It will cost another $60 million to make it operational.  And it won't work.  So the police on the street won't be able to communicate with the police underground.

Sascha says the reason it's not working is that the super-duper underground wireless network has many many hubs. With lots of hubs, there's lots of interference.  Putting all the intelligence in the hubs also leaves the receivers as dumb, lonely boxes -- if the hub stops working, the receiver is done for.  Sascha's saying that NYC could have a cheap underground wireless network if the city was willing to let the receivers be intelligent parts of the architecture -- a mesh, in other words. 

I've written before about Sascha's mesh adventures, which I find quite inspiring.  I'm confident he knows what he's talking about.  But the clash of cultures won't work -- public safety people want hard-wired, centralized, hierarchical, stable solutions, not ad hoc networks they don't quite understand.

It's too bad - $200 million for something that doesn't work, and two mindsets that can't understand each other.

More here from Tom Evslin.

Say you're over 70, you've never typed, and you're generally afraid of technology.  What would it be like to try a computer for the first time? 

It's daunting.  I saw the process tonight.  The letters on the keyboard aren't in any useful order ("where would I find an R?"); the idea of dragging a cursor around is perplexing; and everything is too small and too light-colored to see properly.  The notion of an inbox almost makes sense, but embedded replies and the "sent messages" file don't.  A trackpad is even worse than the impenetrable keyboard, because for no reason things seem to just disappear from the screen.

After the initial email lesson was done (too much to attempt web access during the first lesson), a visiting 9-year-old showed the 70+ his web site.  "See?" he said, "Here are my pictures, and here's more about me, and...."  He's part of the We Generation -- comfortable with technology, likes online videos, ready to look things up.  The 70+ looked a little tired. 

We warned her not to stay up all night with the computer.  "It's safe with me," she said.  She said earlier in the evening that she was afraid of "losing her soul." 

I'm hoping that being able to send messages to her friends and grandchildren will be worth it.  Right now, it seems like a very steep learning curve for her.

OneWebDay is about eight months away.  Here's a video that tells the OneWebDay story.   And features Craig Newmark!

There are lots of ways to get involved.  Be a local organizer of OneWebDay events -- start having brainstorming meetings in February.  Adopt an assisted-living center, or a local school, and work with them on access/learning projects that can culminate in September. Find people around the world who would like to work on some kind of artistic online project with you -- an enormous collage, an emergent symphony, whatever.

And, yes, we'll take donations -- the OneWebDay.org site has a "donate" button.  We need help with the costs involved in getting the word out around the globe.

Thanks. 

Very cold evening in New York tonight.  In Times Square the steam from the constant construction was blowing sideways, and tourists were running awkwardly down the boulevards to get out of the icy blasts.

Two lasting images from today:

the Yale Center for British Art, not visited exactly, but thought of (prompted by an excellent lecture on Louis Kahn) -- it would be nice to visit:

and Bill Nighy, now performing in The Vertical Hour, a play that seems to be a vehicle for him -- he's all angles, as if he were being played by some cosmic puppeteer.

So the large telephone companies in this country don't want to be commoditized.  To avoid this fate, they're vertically integrating, calling Google names, and claiming that net neutrality opponents want to regulate the internet.  And worse.

Someone should tell them that being a gravel pit can be a great way of life, and can unlock broad economic growth for the rest of us.

Here's a 2006 presentation from Bear Stearns that was sent around recently. The presentation makes the point that last-mile internet access can usefully be compared to water, gas, and electricity -- it's a utility.  It's difficult to replicate, it attracts regulation, and it's essential to ongoing growth.

Being a utility is a good business.  The report notes that "utilities trade at a premium to telecoms" because of their "stable, predictable returns."  And structurally separating last-mile access from retail "services" would unlock great value, according to Bear Stearns, as well as being in a country's national interest.

The OpenNet Initiative says that 30 or more countries are actively engaging in internet censorship now.

According to ONI,

"China has earned the dubious distinction as the world leader in filtering Internet content. The Chinese state-run Internet censoring system is without parallel, both in the technical sophistication of the filtering apparatus and in the breadth of topics subject to blocking."

This PBS posting from last April describes how filtering works in China:

Government filtering occurs at the nine Internet Access Points (IAPs) where China connects to the global Internet. These IAPs provide bandwith to hundreds of Internet Service Providers (ISPs), which must register with the state and censor the Web sites on their services. "It's not a single organization building these lists [of blocked addresses, domains and keywords]," says [Nart] Villenueve [Univ. Toronto]. "Each ISP is required to block bad Web sites, but they decide themselves how to implement this requirement."

Cyber cafes are also required to register and monitor users, and citizens with home Internet access must register with local authorities.

Here's a recent story about a Canadian's experience with the Great Firewall.

China is tightening controls on internet news content.  According to ONI:

The three most significant changes implemented in [a recent law] are adding categories of prohibited news Web site content (inciting illegal assemblies or conducting activities on behalf of illegal civil organizations), banning non-government opinion and analysis pieces, and greatly increasing requirements for individuals and small groups posting news.

The two new categories of banned material aim to discourage use of the Internet for political organization and mobilization, which are viewed by the Chinese state as subversive. Thus, for example, the increasing use of mobile phone messaging to organize protests not only violates these new regulations, but also falls under several established categories of prohibited content: harming the interests of the nation, disrupting the solidarity of peoples, and disrupting national policies, at least. Rather than changing the legality of using the Internet for "subversive" organization, these new regulations fortify state control over expression on the Internet and serve as a powerful reminder and warning against using the Internet for purposes the state views as threatening.

Banning non-government news commentary primarily affects major search engines and portals that are licensed to publish governmental news and certain types of approved, independently-gathered news. These sites must now stop posting commentary and analysis --except pieces generated by state news agencies -- effectively limiting Internet news to government-created or sanctioned news.

The blocking of internet sites is a human rights issue, and ONI's information is crucial.

Back in May 2006, you will recall, the FCC issued an order saying that facilities-based broadband Internet access providers and providers of interconnected VoIP services were subject to CALEA.  A legal challenge to FCC's statutory acumen had been filed, but (inexplicably) failed in June 2006.  (FCC apparently read CALEA while standing on its collective head -- many posts on that here.)

The deadline for compliance is May 14, 2007, but no one knows what compliance means.

I've seen messages from the askcalea.net industry forum (access to which is controlled by the FBI) that indicate that some vendors of "trusted third party" compliance services think that all providers have to work through them -- and some think that merely capturing packets and sending them to law enforcement will fulfill the statute's requirements.

Okay, so this may seem like narrow inside baseball, but it's not.  If law enforcement isn't content with a stream of packets, but instead forces small providers and VoIP companies to work through third-party vendors, that's a big cost-shifting exercise.  The big guys are fine with this, I'm sure.  So are the vendors. 

The Act does say that the government is not authorized to require "any specific design of equipment, facilities, services, features, or system configurations to be adopted by any provider ..." and is not authorized "to prohibit the adoption of any equipment, facility, service, or feature by any provider ...".  But it's all up in the air.

Today all of my students (in two classes) simultaneously tried to post to a class wiki.  I think, all in all, things went rather well.  There were a few problems -- someone accidentally put their comment in the navigation bar -- but more comments were posted than not.  So that's a victory.

Next:  commenting and linking!  I'm looking forward to the time when more of my students discover they can comment directly on someone else's post (politely, in italics or different fonts), and that they can link to anything online from the wiki.  And at some point someone will figure out how to reformat the entire thing so that it looks a lot better.  Perhaps someone will want to do a podcast about each class and link to it from the wiki. 

We're on our way.  This is a good moment to point to AboutUs.org and the Wikipedia List of Wikis.

I'm giving a talk in a few months about Internet Governance and Security.  A useful way to organize this topic (with many thanks to Steve Crocker) might be to look at different categories of internet security threats and try to figure out who deals with them. 

The bottom line seems to be (1) that there aren't numbers of governance structures that exist as forums for the discussion of security issues and (2) that most of the money looks backward instead of forward.  (ICANN's role in internet security is very limited -- it works on the DNS and IP address coordination only.  The root list changes on average once every two days, and there are hundreds of copies of it around the world, so it's not a high risk operation.)

There are infrastructure issues -- lines, switches, physical assets.  These are handled pretty well by individual companies who build in redundancy.  When the World Trade Center buildings collapsed, IM conversations around the world continued even though there were plenty of communications lines that were severed.

There are potential issues with hostile acts that cause packets to be deliberately addressed in ways that disrupt the routing fabric of the internet.  There isn't a single natural forum for these issues, as I understand it, but network operators and ISPs around the world worry about routing.  And building into each router authentication methods for all source and destination addresses would add enormous computational weight and delays.  There is likely a role for ISPs to check at the point of entry into their networks whether the source address for a given packet is authentic, but I'm not sure whether that can be more than a suggested best practice.  This should probably be a focus of attention -- but in what forum?

There are issues about denial of service attacks, but it's not clear how to tell a denial of service attack from traffic experienced by a popular web site.  I know CERT is out there, but I don't think it agitates for changes in practices.

So -- what needs to be governed?  There's a vast landscape of interactions out there. ICANN works on a small subset of these interactions, but comes in for a lot of attention because it's the only barn standing in that landscape. When it comes to the "governance" part of this topic, it seems as if there could be encouragement of forums for discussion of particular issues -- like routing -- that don't fall into any natural discussion place. 

The intersection between network neutrality and internet security is interesting.  I think ISPs should be able/encouraged to look for viruses, trojan horses, DDOS attacks, and routing mischief.  Arguably, this kind of inspection is part of transport -- inspecting for "content" isn't. 

But it is true that the distance between content and security can be defined out of existence.  For example, if DOJ feels that in order to achieve true CALEA surveillance capacity it has to work with vertically integrated, constantly-inspecting broadband providers that allow only a subset of "approved services" to cross their networks, I suppose it would oppose network neutrality. That seems like a shortsighted approach to me -- as I've argued in the past, there are much better ways for law enforcement to get the information it needs.

Network neutrality advocates will need to figure out how neutrality intersects with security.  My own view is that there isn't a conflict between these two values.

I'm about to leave Los Angeles and return to New York, hoping to be back in time for breakfast. I can hear the planes outside the window of this hotel.

When I arrived at midnight after the trip out, the car rental place was in complete disarray.  The computers were down.  The people were down.  Nothing was working.  Someone behind the counter decided he wanted to help me, and so he went out into the cold night and proudly brought me this:


I drove away with an (unintentional) screech of wheels.  The next morning, I started my LA driving adventures:  manuvering through terrible traffic, finding freeways, getting lost.  This afternoon I convinced my niece to do the driving for me, which was a huge relief.  She got a big kick out of the car.

It's always sweet and sour to come back here for me.  I went to high school here, but I don't know much about the territory.  I do recognize everything about how it feels to be here, and I always notice the pitiless sun and the solitary palm trees -- and also the sweetness of the air near the beach.  I notice the campiness and the ugliness of things.  It's a harsh place when you visit, and I think it gets easier once you've been here for a while.  I'm from here, but I don't feel a close connection to this place.

I visited the ICANN offices today in Marina del Rey, to meet the new Chief Operating Officer, Doug Brent, and to talk to several people.  ICANN is also "from" here, as a matter of history -- its offices are in the same building as ISI.  Should ICANN always be here?  Does it make sense?  This city is more about media than technology or governance.

But, as I say, it's about time for me to leave, so no grand pronouncements about anything much.  I sadly have to return the car.

In addition to the white spaces and 700 MHz issues I've mentioned recently, there's another spectrum matter that I keep bumping into and wondering about:  M2Z.

This is a bid to offer wireless broadband to all, if the venture can get the spectrum for free:

The company in a filing with FCC says if it was to get the soon to be vacated 2155 MHz to 2175 MHz spectrum for free for 15 years, it would offer universal broadband access nationwide, and in exchange it would hand over 5% of its gross revenues from its premium broadband service. In addition, it will give free 512 kilobits per second wireless access to one and all, which will be supported by advertising.

I can't tell how their petition is being received at the FCC.  For political reasons, they're promising an "automatic, default blocking of access to pornographic, obscene, and/or indecent material" and a secondary network for public safety.  But they're also promising a new nationwide wireless broadband system, and rumor has it that M2Z has $400 million in venture capital to implement their plans. M2Z stands for "move the cost of data transport to zero."

Daily Wireless says that the block of spectrum that M2Z wanted (20MHz of bandwidth) has been taken out of an FCC auction -- because "The FCC has decided that “free” nationwide broadband wireless (and exclusive use) is not an idea whose time has come."  I don't have confirmation of this -- expert advice welcome.

Big day at USC's Annenberg Center today.  Very interesting people -- many projects going on -- very glad I went.

Can we cast aside cynicism for just a moment, and say that having a session about the preservation of the internet is a good idea?

I don't know what's "behind" the State Department suggestion that they hold a global internet freedom day. Maybe it's just a dig at Google for doing business in China (everything has something to do with Google these days).  But I'm glad that the topic of an open internet is something this Administration is willing to discuss.

Law enforcement, the content industry, and network providers aren't that interested in an open internet.  They all have strong reasons to prefer something much more constrained.  But [law enforcement] doesn't necessarily = [State Department].

We'll see, but for today I'm optimistic.  Maybe they'll want to hear about OneWebDay.

I've been on leave this past term -- playing to my strengths, planning my own schedule -- and now school is starting tomorrow.  So I don't have a blog post to offer.  I'm glad to be going back to the classroom.

See you on the other side of tomorrow.

About 18 months ago I wrote a little post called "Up With Up" -- about the importance of uploading.

There are big clashes coming when users discover they can't upload predictably. 

1.  BitTorrent.  John Waclawsky pointed me to this Wikipedia chart listing ISPs that block BitTorrent. How do the ISPs do it?  And how do they decide between "good" and "bad" BitTorrent protocol uses?  James Enck and others point out that there are many studios and virtual world companies using it for distribution -- a legit, legally Torrent-able Harry Potter trailer, anyone?  Huge headaches coming, and only getting worse with high definition files. (Top ten Torrent-ed files listed here.)  Here's a paper about symmetric broadband use in Japan -- where a small percentage of users is accounting for most of the upload traffic.

To block it, you need to sniff out the Torrent seeds and headers.  Fascinating discussion here between admins trading tips on blocking a computer-literate Torrent user.

2. Not providing symmetrical upload.  Carriers assume that people will download, not upload.  Dave Burstein provided me with the following (paraphrasing, all mistakes are mine):  For DSL, there's also a lot of interference caused by the strong user-side transmitter.  So ADSL was originally designed for 6 Mbps down, 768K up. And, besides, telcos want to be able to hang onto enough bandwidth to sell videos. For the telcos, it would be simple (and incredibly inexpensive -- pennies -- to provide symmetric 768K up and down, but they want to upsell people to 3 Mbps down, 768K up. Same with cable -- it would be easy to provide symmetrical upload, but DOCSIS 3.0 is designed for 1 Gbps down, 100 Mbps up because cable carriers don't make money on upload "services."

In other countries where there's more competition, carriers tend to provide symmetric upload/download.

3.  The Venice Project. From the people who brought us Kazaa and Skype.  Here's a description:

"The Venice Project is a streaming video application, and so uses a relatively high amount of bandwidth per hour. One hour of viewing is 320MB downloaded and 105 Megabytes uploaded, which means that it will exhaust a 1 Gigabyte cap in 10 hours. Also, the application continues to run in the background after you close the main window."

"For this reason, if you pay for your bandwidth usage per megabyte or have your usage capped by your ISP, you should be careful to always exit the Venice Project client completely when you are finished watching it."

Here are some network operators mulling over the implications.

So -- we've only just begun the upload battles.

[Heartfelt thanks to the members of Gordon Cook's list who sent along this information.]

Two different people can see entirely different landscapes and end up solving problems differently.

So I'm working through how different perspectives on just why an open internet is important.  My tentative conclusion:  if you talk about competing applications prompting innovation, you'll lose.  If the only economic and cultural justifications you have for the need for a layered approach to internet regulation (an approach that treats transport differently from applications) are (1) the explosive innovation that competition among applications would produce and (2) the appropriate mapping between the “actual” architecture of the internet and the regulatory approach to be taken to it, you'll lose. 

Why?  Because it's so easy for the carriers to use the layered approach against you.  It's so easy for them to complain that it is unfair for rich companies like Google to be riding on their pipes without paying.  They can transform the competition argument into one about fairness and equity.  They can also point out that unchanging network architecture, if frozen into place, may discriminate against their applications in the future. And finally (and perhaps most importantly) they can say "okay, we won't discriminate based on the type of application that seeks to take advantage of our pipes." 

This last part is the heart of the problem -- if network providers get to decide that they can charge all video packets, and that X new thingie is "really" a video packet in disguise, that gives them a tremendous amount of discretion.  Who's to say what new thing falls into what category?  And who's to say that blocking an entire category of stuff (say, P2P applications) is discrimination?  "They're all being treated alike," the carriers can say.

So playing around with the importance of competing applications isn't necessarily an effective perspective.  Even the layers perspective as a whole may end up not being effective unless you can clearly separate out transport.  It's so easy for the layers perspective to be flipped into an argument about the enormous benefits of vertical integration.  "Innovation"-based arguments can so easily be transformed into "they want to free-ride" responses.

(By the way, watch out for people who want to say that "access" (the last mile) is separate from "transport" (the backbone), or that there's a "control plane" that is separate from "applications."  All of these distinctions are dangerous.  That's another post, and another risk of an overly-religious adherence to a detailed layers-based argument.)

So we need another perspective.  Here's my suggestion:  Of course applications are important, but they're secondary to what they facilitate.  What they facilitate, for more and more people, is human relationships.  These groups/affiliations/whatever may be cross-application; they may be invisible; they may be hard to draw lines around.  But they're what's actually interesting and complex/evolving about the net.  Content-delivery isn't the game; humans are.

Once you use this new perspective, you gain a new appreciation for facilitating communications rather than the profits of infrastructure providers.  And it turns out that facilitating these communications will lead to new ideas and economic growth.  Rather than providing economic success just for the carriers, we'll be providing economic success for everyone.

Writing, writing -- not much time left.

If you know someone who would like to operate a new unrestricted gTLD -- an open one, not a "sponsored" one -- could you let me know? 

I don't want to know what the string is (so please don't tell me).  I'm just trying to get a sense. 

This looks interesting -- Scott Page, "The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies." From the introduction:

If we sample widely, we're more likely to find the one person who can solve the problem or who can make the key breakthrough.  We did not get the theory of relativ[ity] from a crowd.  We got it from a diverse, novel thinker in a patent office.

I'll let you know how it turns out.

Sen. Sununu's announcement a couple of days ago that he was drafting legislation calculated to keep the FCC from creating audio or video flags was welcome.  Sen. Sununu has been deeply suspicious of the broadcast flag for some time.  Here's an EFF report from a year ago:

Sununu, an MIT grad, interrupted to ask the question so far unconsidered by his colleagues: Do we need this mandate at all?

He pointed out that "we have a whole history of similar technological innovation that has shown us that the market can respond with its own protection to the needs of the artists." And he concluded with one of the most damning depictions of the ahistorical nature of the flag (clip from Congressional RealVideo) you'll hear on the Hill:

"The suggestion is that if we don't do this, it will stifle creativity. Well...we have now an unprecedented wave of creativity and product and content development...new business models, and new methodologies for distributing this content. The history of government mandates is that it always restricts innovation...why would we think that this one special time, we're going to impose a statutory government mandate on technology, and it will actually encourage innovation?"

Something like this argument shows up in an article I wrote a few years ago now called The Biology of the Broadcast Flag.  Where there is ample competition for new ways of dealing with bits (including many forms of private DRM), it makes no sense to impose a tech mandate -- all that will happen is that the evolution of those new ways of doing things will be stifled.

The reason the net neutrality battle is going on in this county is that there isn't that kind of competition.  We have a system of regional duopolies that are tightly controlling access and have every incentive to reinstantiate their old, clearly-defined services online. So in this case government intervention is appropriate.  There's no reason why the single sidewalk available should be allowed to monetize the interesting conversations taking place above it.

Nice to see Sununu taking such a brave step -- now we need to find a Senator who has a similar understanding of the internet access issues.

The DTV transition keeps creating more and more issues.  Among other things, the idea was that last year's DTV bill would clear 24 MHz of spectrum for interoperable public safety communications and allow the auctioning off of other spectrum -- potentially bringing in billions of dollars. 

This spectrum is in the 700 MHz range.  So Congress is targeting funding to pay for emergency radios in that range.  And the FCC is looking for comments (PDF) on their planned "Implementation of a Nationwide, Broadband, Interoperable Public Safety Network in the 700MHz Band."

But there are many interesting wrinkles here.  According to the Associated Press, Mayor Bloomberg told Congress on Monday that they shouldn't be targeting emergency radio funding at the 700 MHz range.  He's pointing out that NYC has been using 400 MHz (penetrates building and tunnels better than 700 MHz) and has invested a lot -- and should be supported.

Here's a good LightReading background piece -- note particularly the petition by Cyren Call (more details here) seeking to have only commercial wireless operators and public safety entities sharing the whole swath of spectrum that is now scheduled to be auctioned off.  It looks as if the wireless carriers want to get their hooks into this spectrum by arguing for a privatized public safety network.

Lots going on here.

Today was taken up with a trip to Berkman (hello, fellows!) for a lunch talk and a visit to the inimitable Jonathan Zittrain's cyberlaw class.  

Here's Harold Feld on the Dorgan-Snowe bill introduced today.  His bottom line:

So while we're off to a good start with a strong bill and some real star power support, we have a long haul and some serious work cut out for us.

During the AALS session last Friday with Yoo, Shelanski, Weiser, Lemley, Speta, and me, there was a sharp question about Trinko:

What's left after Trinko of antitrust liability for interconnection or nondiscrimination problems caused by carriers?

The answer seemed to depend on who was speaking.  If you are against network neutrality, you want to assure everyone that if there are problems in the future they'll be resolved by antitrust law.  So you read Trinko narrowly to say that it only removes antitrust liability in areas in which the FCC is already active -- and you say that it's better for the FCC to stay out of creating network neutrality rules.

If you're neutral, but suspicious of what the carriers might do, you point out that Trinko has some very broad language in it:

One factor of particular importance is the existence of a regulatory structure designed to deter and remedy anticompetitive harm.  Where such a structure exists, the additional benefit to competition provided by antitrust enforcement will tend to be small, and it will be less plausible that the antitrust laws contemplate such additional scrutiny.

Translated:  In Trinko, Justice Scalia broadly dismissed the idea that competitors to an incumbent phone company could make antitrust claims against that company for providing deficient interconnection services.  Even though there's no other way for the competitor to sell access and the incumbent has a lock on the market, the fact that the FCC has a regulatory structure that deals with anticompetitive behavior means that the incumbents are shielded from antitrust scrutiny for run-of-the-mill refusals to deal.  You'd have to show real anticompetitive conduct -- and reluctance to share facilities could stem from any number of justifications.

So interpreting Trinko is a battleground for this entire discussion.  Go ahead -- take your best shot and interpret away.

Notice how important the Areeda treatise is to the Supreme Court.  It's cited in almost Biblical fashion:  "Thus, it is said that 'essential facility claims should . . . be denied where a state or federal agency has effective power to compel sharing.." (citing Areeda).  It is said?  Very passively powerful.  As if the Truth was derived most effectively from secondary sources.

In copyright law, the same thing happens with the Nimmer treatise.  Very powerful stuff.  Ann Bartow has a nice article about the power of the Nimmer treatise here.  This is yet another parallel moment for the Romantic Network Builder, who, like the Romantic Author of copyright fame has some juicy treatise language backing him up.

From CES, via Engadget:

"We're going to turn up the bandwidth on the whole television experience."

As broadcast flag groupies know, broadcasters have been given extra spectrum so that they can transmit both analog and digital signals as the digital transition continues.  When that transition is over -- by February 17, 2009 (after the Super Bowl) -- the broadcasters will have to give up their extra spectrum and broadcast digitally. 

We already have rules that say that TV stations on the same or adjacent channels have to avoid interference.  Because of these rules, there are "white spaces" not being used by TV -- and after the digital transition, there will be even more white spaces.  In general, broadcast spectrum is used very inefficiently.

After years of work and an extensive 2002 report by the Spectrum Policy Task Force, back in 2004 the FCC issued a Notice of Proposed Rulemaking about white spaces, saying that it wanted to allow unlicensed use of this spectrum.  The Commission found that the benefits of new low-power unlicensed devices being operated in this spectrum outweighed the interference risks these uses might create, and explicitly (if tentatively) decided not to require that the devices be licensed.  Making this spectrum available for unlicensed uses opens up great opportunities for (among other things) community mesh networks that can provide low-cost high-speed connectivity.

In the words of the Task Force:

Historically, due in large part to technological limitations in radio performance, the Commission’s spectrum policies have parceled – or assigned – spectrum according to particular operational frequencies and geographic areas of operations. Smart technologies, such as software-defined radios, potentially allow operators to take advantage of the time dimension of the radio spectrum. That is, because their operations are so agile and can be changed nearly instantaneously, they can operate for short periods of time in unused spectrum. The Commission’s current policies do not take into account the time dimension of spectrum use. In addition, the Commission’s current policies do not allow new technologies to take advantage of geographic white space. In order to be responsive to these increased technological capabilities, the Commission’s spectrum policies can and should remain technology agnostic, but they should not be technology antagonistic. As a result, the Commission should strive, wherever possible, to eliminate regulatory barriers to increased spectrum access.

In October 2006, the Commission suddenly veered in a different direction.  It issued a First Report and Order saying that it had decided to consider yet again whether uses of white spaces should be licensed or unlicensed, that it wasn't sure about mobile devices being used in part of this spectrum, and that it didn't think that anyone should be allowed to market or sell any new devices for use in this spectrum until after the digital transition was over.  (Just think for a moment about what a drag on innovation that schedule is.)

This is another deeply troubling, rigidly conservative, and incumbent-friendly move on the part of the Commission.  In the name of protecting over-the-air broadcast television (something that fewer and fewer Americans actually receive), the FCC is apparently planning to sharply limit the success of new innovative low-power wireless transmission projects and many other as-yet-unknown developments.  Devices are getting much smarter, but the Commission seems determined to assume that they are both dumb and destructive.  The spectrum involved is "beachfront property" -- highly desirable.  Eerily broadcast-flag reminiscent: there's a group backed by a bunch of interested incumbent companies (Motorola, Thomson, Samsung, Philips, Nextwave, France Telecom, and others) that is developing a standard (see last slide) for protection of incumbent licensed devices from harmful interference.

Comments are due by the end of the month, and the Commission is receiving many ex parte visits.  The New American Foundation and CUWin have already filed a petition pointing out how arbitrary the Commission's action is.  The Commission intends to wrap up this proceeding by the end of 2007.

The AALS meeting is big and friendly and goes on for days.  This was my first time coming to the meeting, and I enjoyed seeing so many friends and acquaintances.  Washington itself seemed so familiar and accessible -- I think it's just because I haven't lived here for a while, but I felt very nostalgic.

In the midst of all this semester-break chatting, I was on a panel this afternoon that was also relatively friendly.  On my left was Josh Lamel from Sen. Wyden's office; on my right were Jim Speta, Mark Lemley, Phil Weiser, Howard Shelanski, and Christopher Yoo.  We succeeded in not giving presentations and had a lively conversation about (predictably) network neutrality and prognostications about the coming year. 

Tomorrow: back to work and whitespaces -- a hard look at an ongoing FCC spectrum proceeding.

A long time ago, I met a man named David Lilienthal.  He was a spry, friendly guy -- I don't remember much more.  I remember that I was told that he had run the Tennessee Valley Authority.  I wish I could talk to him now.

Here's Lilienthal, on the far right:

(On the left is Arthur Morgan, and in the middle is Harcourt Morgan.  Harcourt Morgan and David Lilienthal eventually ousted Arthur Morgan.) 

If you have a moment, read FDR's remarks to the press about the TVA from 1934.  There's a great deal in this history that could be relevant to what we're going through now with respect to access to the internet.  (Here's another narrative by WPA writers.)  And notice how steeped FDR was in energy policy.

I think we'd find that people are willing to publicly fund infrastructure if (1) it has a visible effect and (2) the money is going directly into funding that visible effect.  For the TVA, the visible effect was electricity -- a simple visible thing like a lightbulb in a lamp -- and an improved quality of life.  The lightbulb was the killer app for this program. 

For our new problem, the visible effect will be universal highspeed access -- so people can see that their children are online, no matter where they live -- and an improved economy.

The TVA wasn't/isn't a wholly public effort.  Private companies were involved in distributing power -- but the power was much cheaper than anything private companies had been providing.  Private appliance companies sold refrigerators to people using this newly cheaper power. 

But the TVA solved an enormous regional problem and provided a yardstick for private companies.  Listen to what  Harold Ickes said in his 1943 autobiography:

Where would we be today with a scarcity of power already making itself felt, and a greater lack facing us during the next few years, if we had not gone in for the most stupendous program of power development in history?

I'll keep exploring this.  I wish David Lilienthal was still here.

[Thanks to Amy Friedlander for talking to me about the TVA.]

In connection with last Friday's flurry of merger activity, I asked why end-of-year 2006 was so important.

It has been suggested to me that the SEC is going to require much more detailed disclosures about executive compensation beginning in 2007.  (Description here.)  Companies will have to be very plain about what they're paying their top employees and why.

The forms filed by AT&T and BellSouth back in June 2006 in contemplation of the merger suggest that there were rich rewards to executives triggered by the merger. 

In considering the recommendation of BellSouth’s board of directors with respect to the approval of the merger agreement, BellSouth’s shareholders should be aware that BellSouth’s executive officers and directors have interests in the merger that are different from, or in addition to, those of the BellSouth shareholders generally.

The merger (see p. 58) triggers the vesting of stock options, the earning of "performance shares" (for Duane Ackerman, the estimated value of these performance shares was $27 million), and severance payments for those executives who are terminated -- with the cash severance pay based on the merger closing by the end of 2006.  For Ackerman, severance pay will be $9.2 million. 

I'm sure none of this is unusual.  But the new disclosure obligations plus the planned payments may have had something to do with the push.

I tried to be strategic about New Year's Eve.  I had a bunch of places to walk to during the afternoon and evening, so I actually brought along a bag with comfortable shoes and other supplies.  I was feeling pretty good about this, changing my shoes in various lobbies while friendly doormen gave me advice about how I looked.

But then it all went wrong.

At one of the places, we were warmly but firmly told to remove our shoes in the foyer before coming all the way inside the apartment.  I cooperated, stashing my shoes near my bag.  At some point I looked at my watch and saw it was time to move on to the next place.  I said goodbye and walked away, wearing my walking-between-parties shoes.

When I got to the next place (which was many blocks away), I started to go through the familiar shoe ritual, this time with another doorman -- only to find that I had taken someone else's shoes from the no-shoes-allowed apartment.  These shoes looked just like my shoes.  Except that they were several sizes smaller.  And someone else, behind me in the night, was stranded without her shoes.

What to do?

I was stuck.  The doorman laughed.  I called the no-shoes-allowed apartment and the hostess made an entire party game out of asking people if they were missing any shoes.  I did my best to act resilient and perky, although to tell you the truth I was getting pretty tired at this point.  I went up to the new party in my sensible walking shoes (not feeling good about that) and stayed for a while.  I couldn't stay long because, well, I had snagged someone else's shoes.

I left and went back to the no-shoes-allowed apartment, where I was greeted with quite a few shoe-based puns.  Sigh.  Of course, the woman whose shoes I had walked off with hadn't even noticed, because she hadn't tried to leave.

Moral:  Don't plan too much.

Happy new year to all.