Theirer:  Scarcity no longer a useful rationale for regulating broadcast.  Even FCC has said this in 2005 -- staff paper, overlooked, but they said it!

Pacifica/seven dirty words; broadcasting "uniquely pervasive" for children..that was the rationale for second-class treatment of broadcast.

So now we've got abundance and policymakers are trying to figure out how to catch up and regulate anyway.  Don't make fun of them -- they're working on this.  Efforts underway to apply old rationales of Pacifica to new technologies under the theory that everything is pervasive and uniquely accessible to children.  In a way, that's true, and it is strange to impose sterner rules on broadcast (protecting adults from themselves).  At any rate, playbook is to expand old rationales to include new technologies.  So many proposals I can't even list them all (go look at cdt.org).  It's stunning.  New one would require NTIA and DoC to create labeling regime for all new web sites; mandatory XXX zoning; COPA; data retention and age verification...

That's where the real threats are -- data retention.  It's likely that something on this will come out of Congress, and something on age verification from state AGs.  This is grave.  We have been relying on courts to hold the line, and they've been doing well (but COPA could go either way). 

I'm trying to take big tent approach to this issue, fighting for freedom of expression across all media platforms.  Regulation of one platform means ALL will be regulated.  So we need to work together.  Policy makers are not stupid and they want to reach all of these new platforms.  "We either hang together or hang separately."

Question:  What do you mean by data retention?

Theirer:  ISPs and site would have to collect data on their customers, like IP address, for at least a year and maybe longer.  It's already in place in EU, DOJ is enthusiastic.  We don't know what problems this will create.  There are agreements to retain for six to nine months or longer (voluntary agreements).  Most of these sites will preserve on official request if there's a bad guy.  Do we go from preservation to fullblown retention model?  Good chance of this.

Age verification:  requiring social network sites to authenticate identity of individuals for age.  Even though nation has no infrastructure for identity.  It won't work, will create false sense of security, but protecting kids is popular.  Just debating AGs about this.  They honestly believe that social networks are essentially evil.  You have a moral panic out there.  Adults have no idea and don't understand.

Peter Swire (talking about Yochai Benkler's "Wealth of Networks").

Overview:  doing a project re how internet changes "consumer protection," and it morphed.  These words "consumer" and "producers" are economic words.  Two critiques:  why claimed shift from market to nonmarket is overstated.  Why an economics-based alternative is pragmatically useful.

People here are cheering for Yochai's vision.  And that's all good.  But I read the book and I have some thoughts.

Here's outline:  Your laptop is a personal mainframe.  About the processing power of 10 years ago that was in a mainframe.  We own an information age factory. Consumer is an owner of the means of production, which is "economic" language.

Linked to a global distribution network.  So if we use words "consumer" and "producers" opposites converge.

Consumer protection law -- changes all kinds of legal regimes.  

What party cares about consumers -- Democrats.  What party cares about small business?  Republicans.  But both are becoming the same.

Link to wealth of networks -- shift to "non-market" he'll poke at:

Social production -- increases relative efficiency of non-market production.  Benkler rests his argument on a shift to social away from proprietary and market.  Swire doesn't think shift to nonmarket is proven, and he suggests we'd want to deploy an economics-based approach.

I think nonmarket is defined too broadly.  IBM and others investing billions in open source.  And there's been a big source to market with these things.

Second:  This book was about startup phase of Web 2.0.  Early adopters are passionate people.  As niche grows, then division of labor, and paid professionals show up.

Domain names:  Used to be Jon Postel.  Now ICANN.  And bug hunters expect to get paid.

PR etc. going to wikis etc.

The internet:  from non-commmercial (1993) to commerce (today).  Certainly commercial.

Third point:  economist would agree that costs have gone way down, supply curves going up, more production happening.  We expect a lot of market things to follow from this!  

Even if you don't agree that the shift has happened, here's a way to think about this.  An exciting transformation, but market is an alternative description of what we're seeing.

Technological exceptionalism is a dificult claim.  Change in technology hasn't shifted us to nonmarket relationships.
That's contestable.  And complicated.  Simpler to say usual market view that reduction in cost leads to expansion in supply.

Third:  Pragmadics:  what audiences matter.  You should care about policymakers and people in business, who are market involved.  We want to have a persuasive market-based way to get to the outcome.

I do agree that exciting things are happening online, but shift to nonmarket is overstated and we need economics-based rhetoric to convince people.

Benkler:  This isn't inconsistent with what I've been saying, just means you're functioning through a system other than price system to allocate effort.  What's that system?

To use a system that is not directed (direction, intensity) by price system, and call that "market," you're using "market" as a metaphor and a security blanket.  

My claim is that price mechanism occupies a smaller portion of the totality of motivations in the world.  Whether you're a business or another actor, that should matter; you need to accept a distinct system of motivations and symbols that is outside the price system.

And to claim that I'm not using economics in this book is surprising.

Second, this idea of Occam's Razor.  To say when you change cost to economically significant actions affects production -- that's NOT technological exceptionalism.

Yes, costs matter, human capital and physical capital etc. all matter -- this one component has changed dramatically, the cost of production.  This decline has declined in such a way that a whole set of behaviors are BECOMING the economy.

When I talk about "nonmarket," I'm interested in freedom and justice; having a diverse set of motivations is what gives us change in these domains.

Swire:  Yochai is clarifying what I understood of his book.  But I'm still right that we're moving from hobbyist to professionalism.  So we shouldn't wonder at Web 2.0.

Benkler:  If this happens, is it a natural organic move or because a consequence of policy.  Look at 1920s amateur radio hobbyists.  Hoover cooperated with big industry to move them off spectrum and prioritize big transmitters.  And moving DNS from Postel to ICANN wasn't necessary or inevitable -- it was a policy decision and it was a mistake.  So commercialization "natural" and we should push policy towards it, or an output?  I suggest we need to direct policy in the other direction.  There's no reason to think a "natural" progression.

Swire:  Stick with DNS.  As economic importance of root servers increased for commerce, a level of "assurance" and low tolerance of risk came in.  So we tend to pay people who are going to promise performance.  To think that companies will do it as volunteers is not realistic or appropriate.  It would be surprising to have DNS run by individuals doing on a non-paid basis. 

Isenberg:  Thanks.

paraphrased -- word choices all mine

Frankston:  Can you focus on bits instead of services?  We don't need phone companies.

Adelstein:  Someone has to build these networks.  We're using limited tools to ensure internet remains open and free but these businesses have to be able to attract investment.  Infrastructure isn't adequate enough to support traffic that will appear.  True we do hear a lot of fluff about what that investment needs to be, but we still have infrastructure needs.  Seee AT&T/BellSouth merger.  Title I is questionable area of legal authority in which to be doing this, so we have to replace nondiscrimination elements in Title II with new Title I requirements.

Isenberg:  What's the FCC's power here, and your power?

Adelstein:  I'm one of five Commissioners.  535 members of Congress.  And they leave a lot of responsibility for big decisions to us.  I'm often surprised by how much power and responsibility we have, particularly given the legal authority we have.  An awesome responsibility.  Sometimes I'm in the minority.  We prefer to be unanimous -- we did that in AT&T merger.  So we can have a positive influence; others to judge whether we're doing a good job.

Brough Turner:  What about other ways of using unused spectrum?  Most of it unused most of the time.  Look how much can happen with small slivers being made available -- cognitive radio could be key.  What's your response?

Adelstein:  I've talked about cognitive radio in the past.  Key to spectrum policy.  Transform how we use it; revolutionary.  We need to find ways of allowing radios to reach their full fruition. We're experimenting with testbeds and new service rules.  Have to take what we have and do more.  Same time we have to worry about harmful interference.

JH Snider from New America:  FCC is mostly carrots, few sticks.  Lots given away in spectrum flexibility; but boy no demands.  MMDS band, given to incumbents.  No buildout yet.  Many promises, nothing done.  Where is the stick?

Adelstein:  So I'm not very effective....  You're right, it's easy to give away carrots.  Spectrum policy has been like that.  I think we need to be held accountable.  Stick could be:  we'll take away spectrum if you're not using it.  That could be reasonable spectrum policy. We should be doing this.

Alicia McDonald:  AT&T merger was highly contentious; please reflect on how it worked politically.  Fine that we have an NN definition in it; is it useful, will it be enforced?  And you said you wanted better policy analysis -- what do you mean?

Adelstein:  Talks for merger didn't get going until we know who players were going to be in the debate.  [McDowell made final decision to stay out.]  I think good conclusion should really work; areas where most concern was expressed.  Concerns about last mile, eg.  Less debate about whether backbone is competitive.  We were able to get beyond question of whether NN can be defined.  Good discussion, contentious, but broke new ground, smashed old myths.  We can use this as a baseline going forward.  Opens possibility of having further rational discussions.

As for enforcement -- Chairman says he'll enforce NN provision.  He's committed that to Congress as well.  But he doesn't think it should be FCC-wide policy.

As for policy advice I [Adelstein] could use:  industry doesn't want public to know what their data is.  Eg, in advanced service penetration report we go on zip codes and 200Kb.  All inadequate.  We know this analysis is completely faulty.  (See Kentucky Connect reports.)  We should figure out where our problems are and where people aren't getting it and why.  Far too shallow data right now.  Hopeful that upcoming NPRM on data collection will help that.

Isenberg:  Thanks.