DrewClark.com

I was writing about how Rep. Chip Pickering, R-Miss., had praised FCC Chairman Michael Powell for his articulation of the “four freedoms” of Internet, or his early articulation of Net Neutrality rules. (It got duplicated on Twitter, and then my delete snagged both items. The same duplication happened with Rep. Jane Harman, D-Calif.)

Pickering went on to claims that current FCC Chairman continues that approach (four freedoms) on Net Neutrality.

Pickering concluded: “We do not want government intervention, regulation, but we want the private sector to take the leadership in preserving an open business model, and that is my purpose for joining with Mr. Markey on this legislation.”

I’m live-blogging from the House Energy and Commerce Subcommittee on the Internet and Telecommunications, on H.R. 5353, the Internet Freedom Preservation Act of 2008, on http://twitter.com/drewclark. You can also see my 20 most recent postings, in reverse-chronological order, at the right.

I’ll be speaking about the quest for data about broadband availability, competition, speeds and prices at a conference on “Information and the Information Economy,” co-sponsored by The Intellectual Property & Communication Law Program at the Michigan State University College of Law, theThe Donald McGannon Communication Research Center at Fordham University andThe Quello Center for Telecommunications Management and Law at Michigan State University. The conference will be held on Friday, May 2, and Saturday, May 3.

Here’s the abstract of my presentation:
Drew Clark will discuss his efforts to obtain information about local broadband availability and competition from the Federal Communications Commission, and from broadband providers. This is a story with multiple players at several institutions, and with several phases. It has overlays into the fields of transparency, broadband and telecommunications policy, and the freedom to access datasets that play a significant role in public policy.

Drew will begin the story by focusing on the lowly FCC Form 477: a requirement for all broadband providers. He will discuss the Freedom of Information Act lawsuit that he initiated against the FCC to obtain Form 477 data, and of the intervention by the Bell companies, cable operators, mobile carriers and wireless companies. That lawsuit, unfortunately, ended in defeat. Next, he will discuss the origin of BroadbandCensus.com, a new FREE Web service that provides information about your local Internet options, including broadband availability, competition, speeds and prices. BroadbandCensus.com is an effort to go around the FCC and to collect data directly from Internet users through “crowdsourcing.” The content on BroadbandCensus.com is posted under a Creative Commons Attribution-Noncommercial License.

Next, Drew will speak about the various federal, state and private sector efforts to map out broadband, including the Broadband Census of America Act (H.R. 3919) by Rep. Ed Markey, D-Mass., chairman of the House Subcommittee on Telecommunications and the Internet. Drew will conclude by discussing and endorsing the importance of transparency in telecommunications and technology policy, namely: (1) that public policy should be made with publicly available data; and (2) that democracy is best served when the analyses that inform policymaking are transparent and widely accessible.

I just presented BroadbandCensus.com at Freedom to Connect. Two people who are live-blogging or commenting on the event:

• Heath Row’s Media Diet
• Listics
• Suw Charman-Anderson’s Strange Attractor on Corange

One point that I forgot to mention in the talk: BroadbandCensus.com is released under a Creative Commons Attribution-Noncommercial license, meaning that individuals are free to copy and redistribute the information available on the site, so long as they attribute it to BroadbandCensus.com, and do so for non-commercial purposes.

By Drew Clark

Here’s a maxim for Supreme Court watchers: the high court likes to be entertained.

The justices’ decision to take the Federal Communications Commission v. Fox Television Stations case means that the court will finally hear a case pitting broadcast-style indecency regulation against the more recent rulings that the First Amendment forbids restrictions on the Internet and cable television.

The tension between the rules governing broadcasting and the rules governing cable television and the Internet has become extreme. The FCC has been vigorously enforcing broadcast indecency over the past five years — at the very time in which technological developments are making the broadcast versus Internet distinction meaningless.

Some First Amendment observers believe that the FCC v. Fox case could result in a decision overturning the entire framework of broadcast indecency.

Although the Supreme Court could rule more narrowly, the fact that it took the case may signal that the justices are finally ready to square what appears to be the single most glaring inconsistency in First Amendment jurisprudence.

The tension has arisen as the FCC has significantly increased the number and the dollar value of the fines it has levied against about broadcasters for airing indecency. The agency has also begun to sanction isolated instances of a single profanity, including the words “fuck” and “shit.”

As the Forum on Communications and Society last August at the Aspen Institute in Colorado, FCC Chairman Kevin Martin defended this approach by referring to the George Carlin monologue – about the seven dirty words that you can’t say on the public airwaves – that was the subject of the 1978 Supreme Court decision, Pacifica v. FCC, that sustained the indecency ban:

The commission has never had an action about anything besides the words that were included in that original monologue. We are down to enforcing only two to three of those words, and we actually take into consideration the context…. It is important to distinguish between the fact that we have a narrow set of words, and we have been very restrained in our enforcement…. Indeed, those broadcasters that have complained that it is not clear, if we had a per se ban, they would complain just as much.

Broadcast indecency rules have existed since the passage of the Federal Radio Act in 1927. But notwithstanding the 1978 Pacifica decision (decided on a 5-4 vote), indecency has only recently become a live political and legal controversy.

Our current indecency watch began in late 2002, when a string of celebrities, including Cher, Bono, and Nicole Ritchie, used an instance of the “f-word” in awards ceremonies that were carried on live television. These instances raised the hackles of Congress. And then, after Janet Jackson’s breast was briefly exposed by Justin Timberlake during the half-time show of the Super Bowl on February 1, 2004, political momentum became strong for new indecency legislation. The law, passed in 2006, raised the maximum fine for each instance of indecency from $32,500 to $500,000.

After the FCC imposed sanctions against the Fox television network, and others, over the Cher and Nicole Ritchie utterances, during the December 2002 and December 2003 Billboard Music Awards, the network sued, challenging the agency’s decision. In June 2007, the 2nd Circuit Court of Appeals court sided with Fox, holding that the agency had acted arbitrarily in imposing the fine for a single instance of the “f-word.” In November 2007, Solicitor General Paul Clement urged the high court to weigh in, and yesterday, the high court took the bait.

The FCC v. Fox case lies at the fulcrum of he indecency framework — and what might be called a line of Internet free speech cases.

In 1997, the Supreme Court decision American Civil Liberties Union v. Reno held that the Internet should receive the level of protection according the printed world – and not inherit the restrictions that had been imposed upon broadcasters.

The use of filtering technology ended up playing a central role in the ACLU v. Reno case - as well as subsequent cases involving Internet and cable pornography. Because software filters are less restrictive than other forms of regulating content, the Supreme Court seized upon their existence in striking down the Communications Decency Act (CDA) of 1996. It also placed a heavy emphasis on the value of filters in Ashcroft v. ACLU in 2004.The decision effectively undercut the Child Online Protection Act of 1998 – which, as with the CDA, attempted to regulate objectionable material on the Internet.

Now, issues caused by the television/Internet convergence are higher on the political agenda. “Indecency” applies only to broadcast television and radio – and not to cable, satellite, or the Internet. Sometimes this difference has been justified because broadcasters utilize publicly-owned airwaves, and sometimes because of the pervasiveness of broadcast television. Remaining categories of speech – material that is “harmful to minors,” obscenity, and child pornography – apply across media.

“Harmful to minors” material like pornography is intrinsically hard to define, because it is legal for adults and yet forbidden for children. This standard has been the focus of the Supreme Court decisions focusing on Internet filtering. State laws that require Playboy and Penthouse to be wrapped up on magazine stances are a variant of these laws.

Obscenity differs from both indecency and material that is harmful to minors in that obscene material is not protected by the First Amendment, even for adults. But in practice, even hard-core pornography – which may, legally speaking, be obscene – is infrequently prosecuted because the difficulty of meeting the Supreme Court’s “community standards” test. The very notion of community standards has itself been undercut by the Internet.

Child pornography remains the one clear-cut case of harmful content that is illegal throughout the U.S. Prosecutions and criminal sentence are quite strict.

Now that filtering has proven itself – both legally and practically – in the online world, broadcasters seek to use filtering as example about why the indecency laws can no longer pass constitutional muster, even for broadcast television.

In the FCC v. Fox case that is now before the Supreme Court, Fox’s argument relies heavily on the existence of the “v-chip,” named after the images of violence or sexual content on TV the display of which it aims to guard against. After the passage of the Telecommunications Act of 1996, all television manufacturers must include this electronic device within their sets. The consumer has the option of activating it. Cable is already exempt from indecency law because it uses a subscription medium, and because it will “filter” shows and channels that the subscriber wants blocked. In U.S. v. Playboy Entertainment Group (2000), the high court held that Congress didn’t even have the power to limit the hours in which cable subscribers could view pornography on the Playboy channel!

If the least-restrictive means of Internet filtering makes the Communications Decency Act unconstitutional, strains the effectiveness of the Child Online Protection Act, and invalidates laws restricting the time in which cable subscribers may view pornography, surely the existence of the v-chip filter renders broadcast indecency rules obsolete.

After FCC v. Fox, indecency rules could be dead, or at least fatally wounded. Particularly in an election year, this may be a decision that the body politic has failed to anticipate, let alone absorb.

In the wake of the Federal Communications Commission’s “network management” event in Cambridge, Mass., on February 25, it looks as though Net Neutrality critics are finally enjoying their day in the sun.

Last week, the Information Technology and Innovation Foundation hosted two of the most knowledgeable critics, Richard Bennett and Brett Glass, at their own forum on the subject. At the event, Brett unveiled a list of his own seven Net Neutrality principles. For Glass, it’s all about disclosure — full disclosure of the Internet Service Provider’s terms of service, disclosure of the behavior of software, and “no obfuscation” about the way that software has on network management.

Bennett was one of a handful of Net Neutrality critics to also testify at the FCC event at Harvard Law School in Cambridge, the majority of whose witnesses spoke out sharply against Comcast’s decision to delay traffic to the P2P application BitTorrent. Bennett posted the slides that he presented at the ITIF event, in which he articulated his own eight questions on appropriate network management practices:

1. Does the practice support a rational goal, such as the fair distribution of bandwidth?
2. Is it applied, adapted, or modified by network conditions?
3. Does it conform to standard Internet practices, or to national or international standards, and if not, does it improve on them?
4. Has it been communicated to customers?
5. Has technical information that would allow for independent analysis been made available to the research community and the public at large?
6. Does the practice interfere with customer control of traffic priorities or parameters consistent with terms of service?
7. Is the practice efficient with respect to both the upstream and downstream data paths?
8. Does the practice accomplish its purpose with minimal disruption to the network experience of customers as a whole?

Bennett’s talk highlighted how Japan’s 100 megabits per second delivery to the home has created a traffic mix dominated by peer-to-peer applications. On his blog, he noted that now it appears as though Japan’s Internet service providers are going to go after P2P piracy.

Meanwhile, the debate about piracy and network management is about to get more complicated here at home. Last week Motion Picture Association of America chairman Dan Glickman waded into the debate by opposing mandatory network neutrality rules.

In a speech at the ShoWest Convention in Las Vegas, Glickman said: “Government regulation of the Internet would be a terrible reversal of American innovation policy … would impede our ability to respond to consumers in innovative ways and impair the ability of broadband providers to address the serious and rampant piracy problems occurring over their networks today.”

The Independent Film & Television Alliance responded in a letter on March 14 that it was “astounded” to hear that the major studios “denounced the principle of ‘net neutrality’ and its advocates.”

Other critics of Net Neutrality are raising fears of an “Internet Traffic Jam,” which was favorably reported on by Steve Lohr of The New York Times on March 13. According to Lohr’s story, many experts are warning that the new World Wide Wait is being caused by P2P video users hogging all of those fat pipes that the cable and telco providers spent billion to rollout.

Predictions to the contrary aside, the fights over Net Neutrality aren’t over. Not at all.

Over at IP Democracy, Cynthia Brumfield has this to say about BroadbandCensus.com:

BroadbandCensus is coming online at the right time. As Drew notes in his blog post announcing the new site, a lot of states are trying to collect their own data and legislation is moving in both the House and Senate to collect better broadband data.

Note: I guest-blogged this morning at the Institute for Politics, Democracy and the Internet:

By Drew Clark

Most Americans who have high-speed Internet can’t imagine life without broadband. How could you connect to the Internet of today without it? In today’s world, broadband is as basic as running water and electricity. And yet the U.S. is falling behind globally.

What can be done to Build a Broadband Strategy for America? That’s what we’ll be talking about on Tuesday, March 4, during the Keynote Luncheon at the Institute for Politics, Democracy and the Internet’s 2008 Politics Online conference. Read about the star-studded panel that I’ll be moderating. You can also read my previous blog post on why divergent parties do seem to be coalescing around a National Broadband Strategy.

As a technology reporter, I’ve been writing about the battles over broadband for nearly a decade here in Washington. There is one fact about which nearly everyone seems to be in agreement: if America wants better broadband, America need better broadband data. That’s why I’ve recently started a new venture to collect this broadband data, and to make the data available for all on the Web at BroadbandCensus.com.

Take the Broadband Census!

BroadbandCensus.com is designed to help Internet users measure and understand information about the availability, competition, speeds and prices of broadband within their areas.

When you go the BroadbandCensus.com Web site, you’ll type in your ZIP code. You’ll find out how many broadband providers the Federal Communications Commission says are available in your area. You can compare that number to your own sense of the competitive landscape. And now, with BroadbandCensus.com, you can help others understand the true state of broadband competition.

You can Take the Broadband Census by answering a short questionnaire on the site. Your answers will create linkages between a broadband provider and the ZIP codes in which they offer service. You can compare your notes about your service with the experience of other Internet users in your neighborhood.

This idea is by no means original. In recent years, more and more people have been urging the FCC to collect more detailed information about broadband – and to make more of that information publicly available.

Consider several pieces of legislation in Congress. Rep. Ed Markey, D-Mass., Chairman of the House Subcommittee on Telecommunications and the Internet, has introduced legislation that would provide the public with better broadband information. Markey’s “Broadband Census of America Act,” H.R. 3919, has passed the House of Representatives and is now before the Senate.

In addition to providing money for state initiatives to map out broadband, the Broadband Census of America Act also calls for the National Telecommunications and Information Administration (NTIA) to create publicly-available map of broadband deployment. The map would feature not only broadband availability, but “each commercial provider or public provider of broadband service capability.”

In the Senate, the current version of the farm bill, H.R. 4212, includes Illinois Democratic Sen. Richard Durbin’s “Connect the Nation Act,” S. 1190. Durbin’s bill would authorize $40 million a year, for five years, to state efforts to map out broadband inventory on the census block level. The “Broadband Data Improvement Act,” S. 1492, by Senate Commerce Committee Chairman Daniel Inouye, D-Hawaii, takes a similar approach. The goal is, in the identical language of both bills, to “identify and track the availability and adoption of broadband services within each State.”

Going Beyond Broadband Availability – to Broadband Competition, Speeds and Prices

These broadband data bills have been inspired by a growing movement in the states to map out broadband availability within their territories. This effort began with Connect Kentucky, a non-profit initiative designed to compile statistics about regional broadband deployment. In partnership with Bell companies and cable operators, Connect Kentucky identified gaps in coverage and underserved areas. Read about how the group has created a detailed map of broadband availability. It is now replicating its efforts in Ohio, Tennessee and West Virginia.

Connect Kentucky has spawned an entire movement – Connected Nation – which aims to map out broadband availability. Other groups unconnected to Connected Nation are engaged in similar mapping efforts, including the California Broadband Initiative and Massachusetts Broadband Initiative.

Knowing where broadband is and isn’t available is, indeed, the first step toward making sure that broadband truly is accessible to all Americans. But the next steps are broadband competition, broadband speeds and broadband prices. Filling out the rest of this picture is the goal of BroadbandCensus.com.

BroadbandCensus.com includes the names of the carriers offering service in each local area. Using the carrier name as a key, a consumer can rate and rank her broadband providers based on speeds and service. (We’ll be including pricing information in the future, too.) By rating their service quality, Broadband Census Takers and Broadband Census Users will be able to make true head-to-head comparisons. BroadbandCensus.com believes that meaningful information about customer service plans is an essential part of understanding broadband.

And judging by last week’s hearing of the Federal Communications Commission in Cambridge, Mass., it looks like this is principle with which everyone can agree. FCC Chairman Kevin Martin said that broadband providers needed to be transparent with their customers about the speeds, prices and terms of service at which they offer broadband. Speaking at the hearing, Professor Tim Wu (a panelist at Tuesday’s keynote discussion), Professor Christopher Yoo, and Verizon Communications Executive Vice President Tom Tauke all agreed.

Keeping Tabs on Broadband Speeds and Service Plan Information

At BroadbandCensus.com, we’re going forward with the next step: last week we launched a beta version of an Internet speed test. It is called the NDT, or the Network Diagnostic Tool. The NDT is under active development by the Internet2 community, an advanced networking consortium led by the research and education community. The NDT has been used by other broadband mapping endeavors, including the eCorridors Program at Virginia Tech, which is working to collect data of residential and small business broadband trends throughout the state of Virginia.

Additionally, the Pew Internet & American Life Project has contracted with BroadbandCensus.com to gather anonymized information about users’ broadband experiences on the web site, and to incorporate those findings into Pew’s 2008 annual broadband report. BroadbandCensus.com is made available under a Creative Commons Attribution-Noncommercial License. That means that the content on the site is available for all to view, copy, redistribute and reuse for free, providing that attribution is provided to BroadbandCensus.com, and that such use is done for non-commercial purposes.

But the Broadband Census will only succeed if you and I go online and Take the Broadband Census! And don’t be shy in letting me know what you think! You can e-mail me at: drew at broadbandcensus.com.

By Drew Clark

Dominance in the broadband market is a battle of both technology and politics. Right now Comcast, America’s leading cable company, is losing on both counts.

Comcast Executive Vice President David Cohen emerged from the Federal Communications Commission’s hearing on Internet practices in Cambridge, Mass., as unable to defend himself and his company against charges of blocking the peer-to-peer (P2P) Internet application BitTorrent.

Comcast also came out looking like the kind of bullying corporation that resorts to packing the auditorium with its own employees.

Besides, Comcast is not a very good FOK, or Friend of Kevin — as in Kevin Martin, the chairman of the agency. Martin has done nearly everything in his power to harm Comcast and the cable industry since he took over the FCC in March 2005.

That political battle with the cable industry is all about a la carte, or per-channel television programming. But it comes right back to Comcast’s technological disadvantage: cable — unlike both fiber and DSL (Digital Subscriber Line service) — is a “shared service” among many consumers. The network was designed to “broadcast” video in a cable pipe, and not to facilitate large uploads by P2P users and others.

By contrast, Verizon Communications and its Executive Vice President Tom Tauke emerged from the hearing, held at Harvard Law School, with a squeaky-clean image. “At the current time, we have found no need to have a network management tool,” said Tauke. “We don’t have a shared network.”

Note even the pre-ordained and subtle digs, visible in this photograph: It is “The Honorable Tom Tauke” on the left, but merely “David L. Cohen” on the right. (Tauke received this honorific because he is a former Congressman, a Republican from Iowa.)

Cohen’s basic point was as follows: we don’t block P2P applications, but we do manage them by “delay[ing] the request for uploads; we don’t block it.”

Said Cohen:

Comcast not block web sites, applications, web protocols, including P2P services.

What we are doing is a limited form of network management, objectively based upon an excessive bandwidth consumptive protocol during limited periods of network congestion.

But he wouldn’t say what those “objectively based” forms of management are. No user has any way of knowing when they are exceeding the speed limit. Nor did he address the counter-arguments of Professors Yochai Benkler, of Harvard Law School, or Timothy Wu, of Columbia Law School — that delaying a BitTorrent transmission is tantamount to blocking it.

“Comcast has been blocking Bittorrent, and that is the end of the story,” said Wu. “That is a violation” of the FCC’s Net Neutrality principles.

The basic problem for Comcast is that users of P2P applications like BitTorrent do consume an extraordinary amount of bandwidth . But BitTorrent users aren’t hogging the fat, downstream pipe that cable offers. It’s the the scrawny upstream trickle that everyone is fighting over.

DSL service, in general, has the same “asymetrical” character, offering far greater downstream speeds than upstream speeds. But the cable modem service’s shared network compounds this problem.

Contrast this with the message that Tauke imparted. Given the capacity of Verizon’s fiber optic service (FiOS), “at the current time, we do not have the necessity of thwarting or curtailing traffic.” Tauke even touted Verizon’s 20/20 service, or 20 megabits downstream and 20 megabits upstream. The Bell company announced this symmetrical during the same week in which the revelations of Comcast’s BitTorrent behavior surfaced last fall.

CAMBRIDGE, Mass. –  Comcast, the nation’s largest cable provider, is right now facing harsh scrutiny at the FCC’s hearing on Internet management practices today.

David Cohen, executive vice president of Comcast, just concluded his testimony at the FCC’s remote hearing at Harvard Law School here.

Cohen did not defend the “throttling” of Internet traffic passing through BitTorrent’s peer-to-peer application. But he also did not deny that Comcast had restricted the Internet speeds of BitTorrent users on Comcast’s network.

“We empower our customers to access any content or use any service or application that they desire,” said Cohen.

“To maximize our customer’s Internet experience, we do manage our Internet network,” Cohen continued. “There is nothing wrong with that. Every network must be managed.”

Cohen said that customers wanted active network management, he said, to help combat spam, and to ensure that a small percentage of heavy network users didn’t degrade the quality of lighter users.

Cohen did note that in allowing users to access BitTorrent — if it did so with a slight delay — Comcast was being more generous than the Harvard Medical School, which forbids peer-to-peer applications.