Every once in a while I look in on the white spaces, to see how things are going.  You'll recall that the white spaces are unused, non-contiguous ("swiss cheese" ) frequencies between broadcast stations around the county.  Commr. McDowell of the FCC has said that initial rules for the white spaces will be released sometime this fall. 

If the white spaces are made available on an unlicensed basis for use by opportunistic, "smart," low-power mobile devices, entrepreneurial engineers will think of ways to use this wealth of spectrum (300 MHz wide, if fractured) to provide mobile connections to whatever fiber installations are nearest.  At the very least, they will experiment -- and we could use some experimentation.

But the broadcasters are up in arms over this disruption.  They can't imagine that mobile personal wireless devices won't interfere with their broadcasts, and they're positive that unlicensed use of this spectrum shouldn't be allowed.

This week in the white spaces: 

1.  Philips Electronics says that its device is super-sensitive to wireless microphones.  So all the entertainers and sports announcers (including Wolf Pack Sports and a company handling multimedia rights for college sports teams, filers this week) and clerics can relax - use of the Philips prototype won't interfere with their lives. Philips also says that it's time for the FCC to issue its rules allowing unlicensed, portable uses of the white spaces so that devices can be designed and ready for the market in February 2009 - the date of the digital transition. 

2.  The wireless microphone people don't agree, and urge the Commission to stop even considering portable unlicensed uses of the white spaces. 

3. More seriously, GE Healthcare claims that "controlling the presence of personal/portable devices within the premises of healthcare facilities is an intractable challenge" that will pose risks to medical telemetry (basically measuring information about humans), and argues strongly that the New America Foundation doesn't understand the healthcare environment.

4. The White Space Coalition (Dell, EarthLink, Google, Hewlett-Packard, Intel, Microsoft, and Philips Electronics North America Corp.) checked in with the FCC's Office of Engineering & Technology to remind that office (probably not for the first time) that requiring too much sensitivity and too low power levels of these opportunistic portable devices was probably a mistake.  Decoding:  if we require these devices to be so low-power, we won't be able to do any real experimentation; you're letting the incumbent broadcasters run the show, when we really should be shifting away from them.

5. The Association for Maximum Service Television and the National Association of Broadcasters (we can refer to these groups, collectively, as the broadcasters) piped up, saying again that personal and portable devices should be prohibited from operating in what they call the "television spectrum".  Decoding:  it's still our spectrum, even though we're not using it, and if you outlaw portable devices these opportunistic uses won't take off -- people don't really want fixed devices, they want mobility, and they won't buy fixed devices in enough numbers to make manufacturing them worth it.  The broadcasters are also contesting the sensitivity standards, saying that these devices should be much more sensitive in order to avoid interference with television signals.

If we take this week's filings as a poetic symbol in small of the entire proceeding, I'd say that we're headed for delay, or at the most a partial set of October 2007 rules that don't deal with the unlicensed question - leaving it open for another day.  That's too bad, because we'll see explosive innovation if these white spaces are unlicensed sooner rather than later.

Let's hope that Chairman Martin's inclination to allow unlicensed uses remains strong.

The received wisdom here in the U.S. is, according to Gregory Sidak of Georgetown, that prohibiting telecommunications companies from entering vertical markets is a bad idea:

In general, statutory barriers to entry are strongly disfavored by scholars of regulatory economics.  In practice, they are surprisingly costly to implement in technologically dynamic industries, they invite abuse through rent-seeking behavior, and they run the risk of harming consumer welfare.

Well, the EU telecom commissioner, Viviane Reding, has a different point of view.  She thinks that functional separation (separating a communication company's transport functions from its content dreams) leads to competition, faster internet access speeds, and better communications for consumers.  According to the Financial Times, she views the British Telecom split between "networks" and "services" as a positive development.  Her office has already sued Germany for letting Deutsche Telekom get away with vertical integration. 

No stranger to controversy, Ms. Reding has a remarkably consistent method...First, she outlines outlandish ideas then waits for the air to clear before returning to the table to get a deal.

Calling this "outlandish" may indicate that the Financial Times itself is a little distant from the fray.  These are serious economic questions, and Japan certainly takes the notion of separation seriously -- at least on the DSL side of things.

===And today I went for the first time to the Ann Arbor Bim Bi Bop lunch, organized by the well-connected Ed Vielmetti.  At least 30 people, in all kinds of technology-related walks of life.  The introduction ceremony involved telling people how you could tell that the summer was ending.

As cars overflowing with stuff crawl slowly towards dorm rooms and apartments here at the University of Michigan, it's worth spending a moment to consider some mainstream news reports that share a downward-sloping psychic curve.

Regulators all over the world would like to have a say about U.S. lending policy, the Times tells us:

Politicians, regulators and financial specialists outside the United States are seeking a role in the oversight of American markets, banks and rating agencies after recent problems related to subprime mortgages. . . . International investors are . . .  asking why American lenders were allowed to give mortgages to home buyers who could not repay them.

We're being whupped by Japan when it comes to internet access, says the Washington Post, and people are finally making the connection between communications regulation and economic growth/innovation.   There's a nice quote from Vint Cerf:

Japan's lead in speed is worrisome because it will shift Internet innovation away from the United States, warns Cerf, who is widely credited with helping to invent some of the Internet's basic architecture.   'Once you have very high speeds, I guarantee that people will figure out things to do with it that they haven't done before,' he said.

And, finally, USAToday pulls together data on the Katrina recovery:

Of the $116 billion appropriated by Congress to Gulf Coast recovery, $34 billion has been earmarked for long-term rebuilding. But less than half of that has made its way through federal checks and balances to reach municipal projects. Throughout the Gulf Coast, residents are asking why their government — at every level — hasn't done more to streamline the process and bring more rebuilding dollars to the region.

These things all relate to America's sinking, slowing, decaying, softening views on the public role of infrastructure.  Just like the rebuilding of a city, internet access and sensible rules about credit are part of baseline civic needs.  Nothing much will happen on any of these three fronts until the next election, and even then it's likely that any "practical" U.S. leader will take an accomodationist, incremental approach.

Welcome to another sinking, slowing, decaying, softening academic year in U.S. history.  Maybe by next fall we'll be more willing to be impractical.

Today was the day I finished off my cyberlaw syllabus.  You should take this course!  It's got life, death, technology, transfiguration, and plenty of cases in which Perfect 10 is the plaintiff or Google is the defendant (or both). 

More tomorrow.

Two news items interestingly connect today:  First, the airing of Ken Burns' new documentary, "The War," is causing broadcasters some anxiety, because it contains four fleeting expletives.  From SFGate.com:

Many public broadcasters aren't sure whether the FCC will fine public television stations for airing 'The War,' and the FCC hasn't revealed its position.  That uncertainty is placing the broadcasters in a difficult position.  They must either show a documentary in a form other than the artist created, or risk getting hit with large fines for broadcasting naughty words.

And the notion that unlicensed, portable uses of the white spaces might be possible is causing broadcasters some anxiety, because they're absolutely convinced that these uses will interfere with their programming.  From Broadcasting & Cable:

'[Even if] both the Phillips and Microsoft devices work as advertised, they will still cause interference to over-the air TV reception,' says David Donovan, who heads the Association for Maximum Service Television.

These poor broadcasters.  They're stuck with an uncertain regulator.  They crave protection, they cherish their special status, but they can't tell what's going to happen next - and it causes an awful lot of anxiety for them.  It's a schizophrenic existence, being a broadcaster.  Your entire existence is predicated on the favors granted you by government.

Surely the broadcasters should cut themselves loose, sell off their airwaves, and retreat to the countryside.  Calmer all around.

It's common knowledge that companies that provide access to the internet cooperate with law enforcement.  The telephone companies have always been closely tied to emergency responders and the police -- in times of need, people reach for telephones, and this close cooperation has allowed many rescuers to reach panicked callers.  But the cooperative relationship springing from law enforcement's surveillance needs is just as close.

In the NSA spying scandal, the administration has frequently claimed that to reveal the nature of network providers' involvement with the apparently unlawful wiretapping would reveal secrets - and therefore this relationship can't even be discussed in court.  Now the director of national intelligence, Mike McConnell, is admitting that "the private sector" (the network operators) did indeed help out:

Now the second part of the issue was under the president's program, the terrorist surveillance program, the private sector had assisted us. Because if you're going to get access you've got to have a partner and they were being sued. Now if you play out the suits at the value they're claimed, it would bankrupt these companies. So my position was we have to provide liability protection to these private sector entities.

And McConnell also says that people will die because we've been so public about our discomfort with this illegal wiretapping program. 

It's all pretty rich.

Q. So you're saying that the reporting and the debate in Congress means that some Americans are going to die?

A. That's what I mean. Because we have made it so public. We used to do these things very differently. . .

Fifteen minutes before the film was supposed to start tonight, a slight trim man in a madras shirt bounded towards the front of the theater.  I'd noticed the organ keyboard facing the audience before he came in, and I'd idly thought about people sitting through silent movies accompanied by virtuosos staring up at the screen.  But then this guy came flying down the aisle and sat down on the bench, his back to the ten or so people scattered around the theater.  It took him a long time to get the light to work above the organ - he fiddled with it patiently, and his confidence in its workings paid off when the light finally flickered on. 

There must be a "swoop" stop on this particular theater organ.  The first few notes he played were surprisingly tremulous (weird, wild vibrato) and replete with slides from one note to the next.  Was he setting the mood for the Jane Austen movie that the ten scattered people were going to see?  It was a sort of Hitchcock mood, if he was.  Theremin in madras.

When I got here today it was blazing hot, and I really needed yet another pair of sunglasses in order to move around outside.  The woman in the store who sold me the glasses (which I will lose in the next few days) said that what she really liked about Ann Arbor was the people and the absence of franchises.

This guy at the organ was definitely not a franchisee.  He played "People Will Say We're In Love" with tremendous religiousity, big plagal cadences.  He played "Surrey With The Fringe On Top" with aplomb, and "Oklahoma" with the "swoop" setting in full flower.  Big blasts of sound, starting from nothing.

It was real artistry.  You could tell when he was getting to his big finish - Oklahoma blew around us, big baseball-stadium chords, and we wanted to burst into applause.  That's when the real organ-show started - he improvised with "You Must Remember This," as the screen finally lit with images. 

But it wasn't time for the film just yet.  He was improvising to the sponsors' brands, staring up at the screen, riffing on You Must Remember This, as the Ann Arbor Improvement District (paraphrasing here, I don't remember the sponsors' names) expressed its silent support for this great theater that had brought us all together, in emptiness, with a guy in a madras shirt playing the organ as if his life depended on it.

He ended smoothly, the sponsors stopped rolling, and the film began.  No previews.  This time we were released to applaud, and he bounded back up the aisle, smiling just a little.

That's the title of a short film that plays when you visit the Morgan Library.  J.P. Morgan went in search of beautiful things, and tried to buy as many as he could. 

 

Speaking of beautiful things, here are a few more words from Walter Pater:



I have said that the peculiar character of Botticelli is the result of a blending in him of a sympathy for humanity in its uncertain condition, its attractiveness, its investiture at rarer moments in a character of loveliness and energy, with his consciousness of the shadow upon it of the great things from which it shrinks, and that this conveys into his work somewhat more than painting usually attains of the true complexion of humanity.


So - what's the great thing from which you are shrinking today?

==================================================
One month to go until OneWebDay: September 22.  Here's a Rocketboom segment (translated into a zillion languages, thanks to dotSUB.com), a great post from Beth Kanter about OneWebDay, and some news:  Jimmy Wales (Wikipedia), Andrew Baron (Rocketboom), Dana Spiegel (NYCWireless), Birju Pandya (CharityFocus.org), and more will be speaking at Washington Square Park on Sept. 22, Saturday, between 3 and 4 pm.

Carl Malamud is doing his best to make historical court decisions visible online.  This is inspirational - it took a huge fight for the online publishers to give up on controlling ownership of citations to page numbers in court decisions.

As the comments to this Tim O'Reilly post make clear, there are several places online where current court decisions are publicly available.  I frequently go to the Cornell Legal Information Institute.  But the historical data is hard to get to.

Another admirable effort of Carl's is getting Congressional hearings online.  (Plus, any opportunity to tell people about the Internet Archive is a good thing, so follow the link.):

There is a concrete, funded set of initiatives to finish the wiring of the [Congressional hearing] rooms so that all hearings have video coverage, and it is clear from a technical point of view that it is possible to achieve the goal of broadcast-quality video for download on the Internet by the end of the 110th congress. The recommendation to adopt that goal is currently awaiting action from the Office of the Speaker and the Chairman of the Committee on House Administration.

Go, Carl.

Routing around traditional publishers who want to create friction (or barriers to entry) for online access to data isn't easy.  This is the same extended tussle that ScienceCommons.org is engaged in.  In the end, the gatekeepers should lose, particularly where the public benefits so far outweigh the private returns to the publishers.  A cure for Parkinson's, made possible because scientists can easily share data across disease silos, or another royalty for Reed Elsevier?  You be the judge.

Here's an uplifting thought that has nothing to do with internet policy:

For the essence of humanism is that belief of which [Pico della Mirandola] seems never to have doubted, that nothing which has ever interested living men and women can wholly lose its vitality -- no language they have spoken, nor oracle beside which they have hushed their voices, no dream which has once been entertained by actual human minds, nothing about which they have ever been passionate, or expended time and zeal.

That's coming to you from Walter Pater, in 1871.  If you're ever feeling rattled or rushed, just read that through a few times.

==

But back to E911.  Back in March 2004, the FCC started the "IP Enabled Services" rulemaking, saying that it wanted to consider what "social policies" should apply to "services" that use the internet protocol.  It's worth pausing to remember just how broadly the Commission stated its jurisdiction:  "[T]he scope of this proceeding – and the term “IP-enabled services,” as it is used here – includes services and applications relying on the Internet Protocol family."  In other words, everything online. 

One of the first "social policies" the Commission took up was consumers' ability to "call" emergency services and have automated location information provided to the call center.  (People can't always give their location coherently in an emergency.)

In its 2005 E911 Order, the Commission mandated that "interconnected VoIP" providers be able to route all 911 calls (accompanied by a call-back number and the caller’s location) through the traditional telephone 911 network to appropriate local emergency authorities.   The Commission defined "interconnected VoIP" as those services that (1) allowed for real-time, two-way voice communications, (2) required a broadband connection, (3) required end-user equipment to process and receive Internet Protocol packets, and (4) allowed users to both receive calls from traditional telephone networks and make calls to telephone numbers.

The Commission set an unrealistic timetable for this (but that's another story), and effectively required all VoIP providers to negotiate without leverage with the incumbents who control access to the public safety answering points (but that's also another story).  All of this was very hard for VoIP, which doesn't necessarily tie to physical location without the active involvement of the user ("I'm over here!").  Basically, the entire 911 system was built for the telephone era, not the internet era.

The FCC also hinted that it might broaden the definition of "interconnected VoIP" at a later time and might require automatic location information to be provided by devices:

Should the Commission require all terminal adapters or other equipment used in the provision of interconnected VoIP service sold as of June 1, 2006 to be capable of providing location information automatically, whether embedded in other equipment or sold to customers as a separate device?

This was a big deal, this suggestion, because we don't usually require location information to be provided as a condition of marketing or using a device or application.  In fact, many people worry about the privacy implications of constantly being forced to say "I'm over here!"  (Your cellphone, at this point anyway, probably gives you the option of reporting location only when you actually make a 911 call.)

Earlier this summer, in May, these other shoes began to drop.  The Commission issued a notice saying that it was interested in requiring wireless providers and "interconnected VoIP" providers to provide better/more constant location information at all times.  They said that they had tentatively decided to require "interconnected VoIP" providers to automatically report location to the existing public safety answering points (take a look at p.7, para 18).

This is a big deal.  I realize I keep blogging that these proceedings are big deals, but that's because they're so hard to follow and yet so important that I need to find some simple way of putting across the message that this needs attention.  It needs attention because optimizing all VoIP applications on location-reporting-in-legacy-ways would be destructive to innovation, destructive to privacy, and extremely helpful to the incumbents who control the legacy 911 system.  It's always going to be easier to "phone home" to an old-fashioned system when you haven't left home in the first place - when you're an application that is tightly tied to the existing phone network.  A large swath of VoIP services would be effectively wiped out.  As I've argued in the past, this also cuts off all kinds of interesting, richer ways to allow competing providers to connect users to emergency services with better data.

What would Walter Pater do?  He'd write something beautiful about the human spirit.  That won't help us here, unfortunately.  We've got a Commission that seems to be interested in forcing online services into old regulatory bottles, all in the name of public safety.  There are some excellent CDT comments here from May 2007.  If you're interested, take a look.

Last Friday I was thinking about nostalgic, virtual time zones.  I'm pleased to report that although next week I'm moving (for the term) to Ann Arbor, Michigan, it's the same time there that it is in New York and Washington.  So don't think that I'm a few hours ahead or behind -- I'll still be in the same relative position.  Plus, so much of communication is supposed to be asynchronous that it really shouldn't matter.  I'm looking forward to the move, but this was a good piece of time-news.

It looks as if the European Union is much further ahead of us than a mere 6-9 hours when it comes to separating transport from content.  (I'm not saying that everything that happens on the EU level is a good idea.  Take data retention, please.)  There was a recent piece in the Times about Viviane Reding's continuing crusade to effect change:

According to a person in Brussels who has direct knowledge of the plan, the European commissioner for telecommunications, Viviane Reding, wants to create a European Union agency called the European Telecom Market Authority, with power to override national regulators and pry open domestic markets.

One of the most potent weapons wielded by the agency, which would consist of the directors of 27 European national telecommunications agencies, would be the ability to force former monopolies to separate legally from their transmission networks to give competitors equal access.

This will be very, very hard, and perhaps impossible, to implement.  But regulation requiring openness, or unbundling, hasn't been enforceable.  (This happened to us here in the U.S. after passage of the 1996 Act.)  So why not try something else?  European carriers, predictably, think functional separation is a terrible idea.  European national regulators give slow treatment to Brussels-imposed rules. European consumers probably don't know or understand why this kind of separation would ultimately help them.  So it's a lonely crusade, but a forward-thinking, ahead-of-our-time approach.

===

Monday:  E911.  It goes with CALEA (plug for The Ambulance, The Squad Car, and The Internet), and the Commission is thinking about mandatory disclosure of here-I-am location.  All your devices will be informing on you, all the time.  Still feel fondly towards your phone?

The wrangling around the Communications Assistance to Law Enforcement Act (CALEA) is one of those issues that creeps inexorably forward and is hard to follow unless you're really focusing.  So here is a quick, if longish, overview:

CALEA is a 1994 statute that requires telephone companies to design their services so that they are easily tappable by law enforcement in need of "call-identifying information."  Back in August 2005, following a request from the Dept. of Justice, the Commission moved swiftly to impose CALEA obligations on providers of broadband access services and "interconnected VoIP" services. Now the Dept. of Justice is asking for mandated design compliance for content (packets), location, and other issues -- seemingly far away from the statute's focus on access.

Ever since CALEA was enacted, law enforcement, industry, and the FCC have been tussling over what needs to happen for compliance.  The statute says that telecommunications common carriers are supposed to "expeditiously isolat[e] and enabl[e] the government, pursuant to a court order or other lawful authorization, to access call-identifying information that is reasonably available to the carrier. . " and then deliver intercepted communications and call-identifying information to the government "in a format such that they may be transmitted . . . by the government to a location other than the premises of the carrier." 

CALEA doesn't allow law enforcement to ask for designs that would enable access to "content" information beyond "call-identifying" information without proper legal process.  The Commission has said that "privacy concerns could be implicated if carriers were to give to [law enforcement agencies] packets containing both call-identifying and call content information when only the former was authorized."

Much of the tussle has to do with cost-shifting:  the original CALEA statute authorized $500 million to be allocated to paying the carriers back for their efforts in connection with compliance, but there's no money being offered to the internet players.  But a lot of the recent tussle has to do with how to move CALEA's obligations into the internet era.  The problem is that CALEA was specifically written not to cover online applications like email and other "information services."  And saying what online "call-identifying" (non-content) information is presents a difficult task.

The CALEA Order released in August 2005 interprets CALEA to cover any services provided by non-telephone companies that are in some way (however minor) replacements for telephone services.  Many people thought that was a very strange interpretation of the statute, which specifically exempts information services (online applications) from the definition of "telecommunications carrier." 

Then, last summer (June 2006), the D.C. Circuit chose to defer to the FCC's interpretation of CALEA.  (Just as in BrandX -- if Congress enacts a statute that can be categorized as "vague," and the FCC interprets it, the courts will often go along.)   But the D.C. Circuit tried to make clear that CALEA could cover only the telecommunication-carrier aspects of broadband access and VoIP -- the transport/access part/switching parts of these services that replace traditional phone service.  CALEA pretty clearly does not apply to the other things these services could do, like storage of email or web hosting.  CALEA, the court said, is about access. 

So, if the FCC wanted to broaden the coverage of CALEA to take in other non-access functions, they'd have to go back to Congress.

Well, law enforcement didn't want to go back to Congress.  Instead, in May 2007 the Dept. of Justice filed a "deficiency petition" [link goes to Part 1 of 3] with the Commission.  DOJ is now asking for an "expedited rulemaking" that would require broadband access providers to provide "call-identifying information" in the form of packet activity reporting for all of those online applications - all information services. DOJ is also asking for location information that is more precise than just cell-tower level information, and they want wireless carriers to force consumers to always have the location function in their cellphones on - a CALEA location mandate.

This is a very big deal.  In the past, CALEA required local phone companies to meet call-identifying obligations when it came to someone's phone call to reach his dial-up ISP.  So the local phone company had to provide information about the start and end of that phone call.  Even though "packets" were certainly traveling around this dial-up connection, no additional information had to be sent on to law enforcement, and the local phone company wasn't supposed to listen to the phone call. 

Now, law enforcement wants wireless transmission service providers (say, Verizon) to be able to report to law enforcement about what packets are being carried by them, using which port numbers.  (There's no real functional difference between wireless internet access and wired, so this same obligation would be applied to all highspeed internet access providers.)  Driving things to the packet level is a big deal.  It's way beyond what anyone understood "call identifying information" to mean in the days of the telephone.  And port numbers would reveal information about what application was being used, which is "content."

This isn't about law enforcement's ability to get packet-level information from anyone.  With lawful process (like a warrant), law enforcement could ask for content elements from any old VoIP provider within its jurisdiction.  The key thing here is cost-shifting and design:  can law enforcement ask in advance that information service providers design their systems to spew out exactly the information that law enforcement wants, in law enforcement's desired format?  particularly when this information will necessarily include content?

The statute says (in my view) that law enforcement can't do this, and the FCC doesn't have the authority to rewrite the statute.  The Commission can't just say that all packets and port numbers are part of "call identifying information," and can't extend CALEA's design obligations to information service functions (even information service functions of broadband access providers) that aren't part of transmission/access/switching.  The location mandate would be hugely privacy-invasive, and would require handset providers to build their phones in a particular way.

VeriSign, predictably, has filed in this proceeding to remind the Commission that it's a provider of "CALEA Trusted Third Party Services," and urges the Commission to quickly grant law enforcement's petition.  VeriSign takes the view that what law enforcement is asking for is "well-settled" and just needs"clarification" as being covered by CALEA.

Bottom line:  the Dept. of Justice wants to require highspeed internet access providers to (1) design their systems so as to be able to provide detailed information about every packet that goes by, (2) to be able to provide fine-grained tracking information; and (3) to shift the cost of all of this to the carriers.

Implications:  if you have to be able to do all of this to provide highspeed access, you won't go into business lightly.  Only the largest incumbents will be able to handle these obligations if the FCC grants this petition.  Open access doesn't fit with these requirements at all, because the whole point would be that the carrier wouldn't even know what applications were being used on its network.  (So if you wanted to get rid of open access, you'd accept these changes to CALEA and then use CALEA as a reason never to allow competitive ISPs to connect to the wires and wireless systems of incumbents.) What about mesh, what about opportunistic community networks?  And what about privacy?  Should it be a condition of using a portable device that you permit your carrier to be able to easily report where you are at all times?

In late July 2007, several responses (CTIA, CDT et al.) were filed to the DOJ's May petition for expedited rulemaking.  I can't tell from the docket when the Commission plans to rule on the petition, and I'm hoping they deny it.  If law enforcement is going to suggest design mandates for all online applications, elected representatives should be aware- the statute they passed in 1994 clearly didn't cover this.  It is not a good idea to rely on the Commission's discretion in these key areas.

If you go over and look at the docket for this week's filings in the FCC's "white spaces" proceeding, you'll find this:

1.  Microsoft says the Commission tested a broken device, and never even tried the (functioning) backup device or called up Microsoft to find out why the heck the thing wasn't working:

In the presence of FCC engineers, Microsoft engineers tested the Prototype A device used by [FCC's Office of Engineering and Technology] for the DTV signal testing. This test revealed that the scanner in the device had been damaged and operated at a severely degraded level....

• Microsoft testing conducted in the presence of FCC engineers also revealed that the spare Prototype A device previously provided to the FCC Laboratory (which was in the FCC’s possession throughout the testing process) reliably detected occupied television channels at -114 dBm.

• OET staff acknowledged that they did not attempt to contact Microsoft after observing the performance of the damaged Prototype A device tested by OET, nor did OET use the spare/backup Prototype A device provided to it for any portion of its DTV signal testing.

2.  Philips Electronics North America reminds the Commission that its prototype device was very good at sensing DTV signals and wireless microphones:

In analyzing the test results, it is essential to bear in mind the purpose of this prototype testing. It is not for equipment authorization. We are not yet at that stage in the process. The sole purpose is to test the feasibility of operating unlicensed [White Spaces Devices] without causing harmful interference, of which consistent and robust detection is a significant part. Viewed from that perspective, all parties should view the testing of [the Philips device] as a success.

3.  Meanwhile, the cable industry's trade association group bravely tells the FCC that even though the Commission tested a broken device, the results of the tests "validate the concerns expressed by the cable industry and other parties regarding the substantial risks of wide-scale interference from unlicensed devices and the inadequacy of the signal sensing detection mechanism incorporated in prototype devices."

Watch for both cable and broadcasters to get very up-in-arms about protecting wireless microphones.  If we get this wrong, planes will fall from the sky!

Low-powered wireless microphones are essential to television journalists covering breaking news events, particularly on-the-scene coverage of emergency situations. And they are ubiquitous tools for the distribution of audio in all major sports and entertainment events in large venues.

4.  A technical director for a church in Reno has this to say:

I would ask that your discussions and decisions keep in mind the thousands of churches across the country who rely on wireless technology to communicate messages of hope, encouragement, and love to millions of people every week.

5. Motorola chimes in, saying personal/portable devices could use geolocation information to avoid interference, and encourages the FCC to do more testing.

6.  And the Community Broadcasters Association says that it

believes that the [FCC] report validates its position that any White Space operations must be limited to operations at fixed locations that are held accountable through licensing; and if any personal portable devices are allowed, their frequency selection must be controlled by a licensed centralized beacon that relies on not only sensitive spectrum sensing but also a database that requires exclusion of all broadcast signals expected to reach the user’s location.

That's just three days of filings.  We've got a broken prototype being seriously tested by murmuring, clucking-with-concern engineers, immense security-plus-prayer concerns about wireless microphones, and a call for no unlicensed uses at all -- much less the unlicensed, portable uses that would make a new opportunistic market for basic ubiquitous internet access possible. You can't make this stuff up.

[I couldn't resist this.  I promise CALEA tomorrow.]

I'm sadly not able to go to Aspen this week, but Gigi Sohn is there now.  Reporting in her inimitable style, she says:

[P]erhaps [Michael Eisner's] most ridiculous shot of the day was at co-panelist Arianna Huffington, publisher of the Huffington Post. Eisner criticized Huffington for a business model that does not pay its contributing bloggers. If people just give away their blog posts to the Huffpo, they will be relegated to working on an assembly line just to pay their bills, he said.

Gigi points out, rightly, that there are a lot of reasons people blog that have nothing to do with money.  Recognition, influence, impact, conversational participation in the online world - there are many good motivations to write.  It may be true for most bloggers that there's no immediate business model, but there are indirect informational effects of writing a blog that can support a satisfying and moderately remunerative life.

Here, take my blog - it's free.  And tomorrow I'll go back to CALEA (bet you can't wait). 

The enormous PDF of the rules came out on Friday evening last week.  There is a lot here to chew through, but some highlights leap out:

1.  Those Carterfone protections don't mean too much.  The no-locking, no-blocking requirements are hedged in by substantial limitations:  the winning licensee will be able to lock and block devices and applications as long as they can show that their actions are related to "reasonable network management and protection," or "compliance with applicable regulatory requirements."   In other words, as long as the discrimination can be shown to be connected (however indirectly) to some vision of "network management," it will be permitted.  (Discrimination "solely" for discrimination's sake is prohibited, but that's not too difficult to avoid.)

Among other limitations, the license winner will be allowed to continue to use its own (non-standardized) certification standards and processes to approve uses of devices and applications on their networks, will be allowed to protect the "safety and integrity" of their networks against non-carrier applications and devices, and will be permitted to restrict use of its network to devices "compatible with [the carrier’s] network control features." Additionally, carriers will have the ability to deny interconnection to handsets and applications that are unable to provide location-information via the carrier’s E911 system (a system that is controlled by the carrier itself). 

All of these elements will provide any incumbent carrier that wins this auction with ample slow-roll capability.  It will be very difficult for non-carrier application providers and device manufacturers to work through the incumbent’s certification processes.

2.  The "reserve price" gambit is quite astounding.  Martin's arrangement for very limited open access is accompanied by a novel escape clause:  if the license block that had been conditioned on limited no-locking, no-blocking requirements fails to sell for at least $4.6 billion, it will be re-auctioned in smaller chunks without any conditions applied.  

Commr. Copps disagrees with this “reserve price” approach, saying “[t]he procedure in this Order carries chilling risk to the success of the auction. If some of these blocks do not fetch the bid prices stipulated, perhaps because of gaming of the worst sort, they will be re-auctioned with weaker build-out requirements. If the 22 MHz block, where we hope for Carterfone open access principles, fails to elicit a $4.6 billion bid, it will be re-auctioned without Carterfone open access. In the end, all of this micro-managing virtually hands industry the pen to write the auction rules and to constrict all the opportunities this spectrum held forth. The end result could be: same old, same old. What a pity that would be!”

There are many, many devils in these details.

I'm at a long meeting in a conference room overlooking the grounds of my high school.  This happened last year too, so being here is a weird mixture of nostalgia and déjà-vu-nostalgia ("I already had this nostalgia").

Walking around the Stanford campus earlier this week, I felt firmly in the current day.  Because I was never there as a student, it's in the modern time zone for me.  But near my high school the time zone bends - somewhere nearby it's thirty years ago, and all the sights and smells remind me of what it was like then. 

Because I went to the same place for law school and college, I had this time zone feeling almost daily.  Just crossing the street from the law school to the undergraduate campus made me think that I had returned to my past.  Things seemed a little slower and out of focus, just slightly.  I guess that's sensory nostalgia.

Here, next to the high school, life is better now than it was then.  The pier nearby is all cleaned up - there's a really good rollercoaster (small) and a restaurant on the end where there used to be nothing.  I'm still doing the same things I did then, but it's more fun.  There are different worries, but I can get on a plane whenever I want and go somewhere else.

It's been a long week.  Have a nice weekend, whatever time zone you're in.

I learned the other day that the Commission had terminated a couple of proceedings that might have cast some light on all this spectrum policy wrangling. 

One had to do with receiver standards.  It's very hard to move towards using spectrum more efficiently if you're stuck dealing with a bunch of dumb legacy devices.  (Even if devices could just promise to receive IP packets that might make them smart enough.  But a lot of devices can't yet do that, of course.) 

The other had to do with interference.  If you don't have any measurements for interference, it's hard for anyone to discuss what it means or how much is too much.  Someone can always claim that planes just might fall from the sky if someone else does X or Y.

Because the incumbent carriers (both telcos and television broadcasters) are perfectly happy with dumb-but-customized devices and can work out their own interference deals behind closed doors, they don't mind having these proceedings end.  But their absence makes it harder for the rest of the ecosystem to predict the future and attract investment.  Many years of work went into these two proceedings.   (I see that Harold blogged about this eons ago.)

We can't move all of communications into the internet model - the "indifferent transport" model - using the white spaces without piercing this darkness.

Yesterday, Telecommunications Reports quoted Chairman Martin - and it's quite an optimistic report. 

Tiny background:  Just as Brand X and Grokster came out on the same day, and Brand X has turned out to be centrally important (although all the press buzz was about Grokster), the FCC's report on white spaces devices came out the same day as the 700 MHz rules - and unlicensed use of the white spaces may be even more important than having the right rules apply to 700 MHz.

Why?  Because so much more spectrum is at stake.  There are about 294 MHz of (non-contiguous) white spaces (unused TV airwaves), and the most anyone thought would be available for wholesale access in the 700 MHz auction was 22 MHz.

You can do a lot more with 300 MHz than 22 MHz.  You can find opportunistic ways of providing last-mile highspeed internet access on an unlicensed, fill-in basis.  This could be key for unserved rural areas in this country.  It could also be key for a tsunami of innovation and bit transport generally - just think how many more bits are being moved around via wifi hotspots in comparison with other kinds of transport.  (A lot more.)

So when the FCC appeared to be pooh-poohing the ability of a couple of prototype devices to avoid interference, it was a big deal the other day.

Now Chairman Martin is expressing optimism, and it's a good thing:

I think the Commission remains ... committed to be able to find a way to more efficiently utilize all of the spectrum, including the white spaces in the broadcast spectrum. . . . While I think that the engineers, you know, had some concerns with some of the devices, I think that they didn't conclude that it still would not be technically feasible. ... Our engineers have actually opened up the process. They're trying to bring in engineers both from the broadcasters and from the technology companies to identify ways in which to improve those devices to ensure that it doesn't create undue interference.

So that's good news.  For some reason, the Microsoft prototype failed the tests.  There's time to do this right and get different prototypes in front of the Commission.  Watch for the white spaces - they're key.

I'm at a hotel that won't let me send SMTP mail - in Mountain View! - and so I thought today would be a good day to talk about Deep Packet Inspection.  Nate Anderson of Ars Technica wrote a fine article about this recently.

In talking about tricky "when the law hits the network" questions, we often assume that non-cableco ISPs can't know all that much about what their subscribers are doing online.  It would take so much computational effort to look at packets zipping by that the user experience would grind to a halt - people would take their business elsewhere.

It turns out that's just not true.  Anderson's piece points out that there are vendors selling products that are designed to dig into a packet's payload and make educated guesses about what the packet is part of.  And more than that - they can reconstitute webmail messages and chat sessions. 


Patient visitors to this blog will remember that I've spent a lot of their time talking about CALEA.  Well, these same vendors make CALEA compliance easy for ISPs, because they can just isolate all the traffic coming from a particular subscriber and forward it on (in response to adequate legal process, you hope) to law enforcement.

The vendors' argument on "traffic shaping" is that it's only fair - why should some bandwidth hogs get away with whatever they want to, when capacity is constrained?  A response could be: why don't you provision more bandwidth, and then charge people for using more capacity?

The key point, the money quote, is here:

Think about that for a second.  We assume for purposes of the whole Net Neutrality debate in this country that competition is absent in the "last mile."  What if there's no competition for backbone transport?  What if the backbone providers think they can get away with private traffic shaping too?  We'll have no way of knowing, and they'll be able (apparently) to watch the payload of every packet.

That could be a good title for a novel.  It's what the Times is saying about its new skinny format.  The paper asserts that there's a "national newspaper 12-inch standard" to which it's now adhering, and I have no reason not to believe them.

There's something so deliberate and sweet and hard-copyish about the phrase "somewhat fewer words per page." 


What's nice about a web page:  you just can't control how many words your reader's page has on it.

I'm in motion today, on my way to California for several days of talking.  I had a great time this afternoon with Joanne Colon and Andrew Baron of Rocketboom.  They're under management and quite the media moguls at this point, but they were kind to me.  And a big blog thank-you to Andy Carvin.

Tomorrow:  some reflections on surveillance.

A while ago, I suggested that some state attorney general or state Public Utilities Commission might want to investigate why prices for highspeed internet access (including symmetric access!) aren't going down, and whether the incumbent telephone companies and cable companies are cooperating somehow. 

I got a kind email from someone in a state AG's office saying "you know, we're interested in facts, so give us facts."  The message also pointed out that under recent caselaw (the "Twombly/Matsushita" line of cases) mere failure to compete, or tacit collusion, wouldn't necessarily be enough for a prosecution of any kind.  Under Twombly, you'd need to show "plausible grounds to infer an agreement," at the very least.

So there are at least three significant mountains to climb to make out an antitrust case in this context. 

The first is that the incumbents don't charge separately (in general) for highspeed internet access.  (Doc Searls has a nice post on this today.)  It's all packages, with the emphasis on phone and video services.  Bruce Kushnick has been trying to document Verizon and AT&T phone bill prices going up, and he's finding that highspeed access is only available with promotional packages.  (ISPs are also going out of business, as we know.)  This means that making out a case about non-competition in highspeed internet access (by itself) is difficult.  As the Dept. of Justice found a quarter of a century ago in trying to figure out what on earth Ma Bell was doing with cross-subsidizing equipment and services, the internal accounting of these players is difficult to parse.

The second is that cable and telephone companies could be equally interested in avoiding disruptive internet-only competition, and doing their best to use their market power to hang onto their packages.  Neither side has an incentive to cannabilize itself in favor of commodity internet access.  So they may never have actually agreed.  They may be just acting in parallel, which is not necessarily illegal.

And the third is that any case about this issue would take years and years of unbelievably painful litigation to prove.  Many state PUCs don't really want to take on these actors, and state AGs may feel the same way.  You'd need to find an insider to lead you by the hand, and life for that insider might be made very difficult.

But - if there's a state AG out there who thinks there's something to this issue, I'm confident that consumers would be grateful for the attention.

I love reading Global Voices.  You have to be careful, though - you can spend weeks there without noticing the time going by.

Here's an entry about Swedish foreign minister Carl Bildt (who once got swept up into ICANN business) blogging his way through his job.  He's not doing foreign policy through his blog, though - it's described by the Global Voices poster as "daily notes dotted down in the margins of a life as a travelling salesman in foreign policy."  Bildt's blog is in Swedish, and I didn't quickly locate a free Swedish-English translation engine, so I can't tell what he's writing about.  The Global Voices entry continues:

It might seem that Bildt has fallen victim to the noblesse oblige of his office, by self-imposed censorship. The truth of the matter may, however, be much closer at hand: As foreign minister, life is simply too demanding to write analytically in the precious little spare time available.

That's understandable.

Although the papers somewhat ambiguously said that yesterday's moves by the FCC in the 700 MHz auction were a victory for Google and open access, that's not quite right. 

Google and a quarter of a million individuals and a host of public interest groups said they wanted "wholesale access" requirements to be imposed on the winner of a portion of the licensed spectrum. 

The FCC refused to take that step.

Why did wholesale access matter?  We have very little competition between providers of highspeed internet access in this country.  Prices are high and speeds are slow.  Making one wireless highspeed network provide its services on a wholesale basis would have greatly increased the likelihood that someone selling retail highspeed internet access would have sold it on a commodity basis, without trying to charge extra for particular "services."  Competition for highspeed internet access might have erupted, and a huge number of new kinds of services that depend on leasing network capacity might have emerged.  This might have helped us increase highspeed access penetration across the country at lower prices.  We won't see an auction like this again for a long time, if ever, and we've lost this opportunity to get new entrants into the market.

What did we get instead?  Until we have the text of the FCC's proposed rules for the auction, we don't really know.  It sounds as if some form of "no locking, no blocking" requirement has been imposed on six large regional licenses.  "No locking" means that the wireless provider won't be allowed to control exactly which devices can attach to its network (although it can set certification standards that have to be met).  "No blocking" means that the carrier won't be allowed to block particular applications that consumers want to use online (like voice or email applications).

That sounds pretty good.  What's the problem?  Changing consumers' expectations so that they clamor for handsets that aren't tied to particular networks is good, and will prompt a lot of innovation in devices.  Avoiding the blocking of applications is good too.  But the Commission set "reserve prices" for this spectrum, and if the "encumbered" licenses don't attract rich enough bids they'll re-auction the spectrum without these requirements.  Also, who knows how the carriers will try to game this or how enforceable these rules will be.  The carriers could subsidize devices that are locked to a particular network, or direct people over to other portions of their spectrum in some tricky way that don't have these requirements, or charge more for unblocked uses.  Details matter in this area.

What problem was the Commission trying to solve?  That's the question we should be asking.  If the problem was "increase competition for highspeed internet access," they didn't solve it.  If the problem was "don't make any one well-funded actor too mad at us," they may have solved it.  But is that the same thing as serving the public interest?

At one point during yesterday's proceedings, Chairman Kevin Martin departed from his prepared text and said something along these lines:

While I recognize that these rules may not fit any one company, the public interest isn’t about what one company wants.  It’s about serving the people.  And the people want the ability to choose devices.

The problem with this approach to the public interest is that it puts gadgets ahead of access.  Nothing wrong with gadgets - they're very empowering.  Gadgets are a means, though, and not an end in themselves.  Even President Bush recognized the importance of highspeed access, and promised that 2007 was the year.  We're nowhere close, and these rules don't get us any closer.