April 28, 2009 – The Federal Communications Commission may proscribe the broadcast of a single expletive, such as the word “fuck” or “shit,” the Supreme Court held on Tuesday, overturning an appellate court determination that such restrictions amounted to a change of policy.

In a 5-4 decision on Tuesday authored by Justice Antonin Scalia, the Supreme Court ruled narrowly, on the grounds of administrative law, that the FCC’s sanction against Fox Television Stations for the broadcast of those words on television shows involving the celebrities Cher and Nicole Richie, in the 2002 and 2003 Billboard Music Awards.

But in remanding the case, FCC v. Fox Television Stations, to the Second Circuit Court of Appeals with instructions to consider those constitutional issues, the case is almost certain to return to the Supreme Court for a full review of the issues.

Under administrative law, an action by an agency like the FCC may be set aside if it is “arbitrary or capricious.” Scalia said that was not here the case.

“If the Commission’s action here was not arbitrary or capricious in the ordinary sense, it satisfies the Administrative Procedure Act’s ‘arbitrary [or] capricious’ standard; its lawfulness under the Constitution is a separate question to be addressed in a constitutional challenge,” Scalia wrote.

In 1978, the Supreme Court permitted the FCC to sanction the broadcast of “indecent” material, including expletives with sexual reference, in FCC v. Pacific Foundation. That case concerned George Carlin’s “seven dirty words” – the satiric monologue about the seven words, as he put it, that “you couldn’t say on the public, ah, airwaves, um, the ones you definitely wouldn’t say, ever.”

A father who heard the monologue in his car – with his young son along for the ride – a  complained to the FCC, which sanctioned the Pacifica station that carried Carlin’s monologue.

The Pacifica decision, however, suggested that a policy against the “fleeting” use of a single expletive might run afoul of the First Amendment.

Hence the administrative law issue in the Fox case. The issue of whether the FCC had changed course arose because of a prior FCC ruling. The agency sanctioned NBC for broadcasting the singer Bono’s use of the phrase “fucking brilliant” in the 2003 Golden Globes award ceremony.

In its 2004 ruling against NBC, the FCC acknowledged that it had changed policy, to proscribe the use of a single curse word. Acknowledging the policy shift, the FCC did not impose a monetary fine on NBC.

The FCC subsequently sanctioned Fox – and also did not charge a fine – for the Cher and Richie comments.

The substance of the opinion was joined by Chief Justice John Roberts, and by Justices Samuel Alito, Anthony Kennedy and Clarence Thomas.

In a separate, concurring opinion, Thomas argued that rationale for affording broadcasters lesser First Amendment protections than those accorded to users of the internet or cable television should be reconsidered.

Such an exercise would revisit the holding of Red Lion Broadcasting v. Federal Communications Commission, the 1969 decision upholding the “Fairness Doctrine,” which required broadcasters to offer free time to individuals representing the opposing side of a controversial issue covered in a broadcast.

Although the Fairness Doctrine was repealed by the FCC in 1987, the legal rationale underpinning the doctrine remains in force, and could be reinstated by Congress, or by the FCC.

On Friday, January 30, the Technology Policy Institute features a debate, “Broadband, Economic Growth, and the Financial Crisis: Informing the Stimulus Package,”  from 12 noon – 2 p.m., at the Rayburn House Office Building, Room B369.

Moderated by my friend Scott Wallsten, senior fellow and vice president for research at the Technology Policy Institute, the event features James Assey, Executive Vice President for the National Cable & Telecommunications Association; Robert Crandall, Senior Fellow in Economic Studies, The Brookings Institution; Chris King, Principal/Senior Telecom Services Analyst, Stifel Nicolaus Telecom Equity Research; and Shane Greenstein, Elinor and Wendell Hobbs Professor of Management and Strategy at the Kellogg School of Management, Northwestern University.

The language promoting the event notes, “How best to include broadband in an economic stimulus package depends, in part, on understanding two critical issues: how broadband affects economic growth, and how the credit crisis has affected broadband investment.  In particular, one might favor aggressive government intervention if broadband stimulates growth and investment is now lagging.  Alternatively, money might be better spent elsewhere if the effects on growth are smaller than commonly believed or private investment is continuing despite the crisis.”

And then, on Tuesday,  MIT Professor David Clark, one of the pioneers of the Internet and a distinguished scientist whose work on “end-to-end” connectivity is widely cited as the architectural blueprint of the Internet, looks to the future.  Focusing on the dynamics of advanced communications – the role of social networking, problems security and broadband access, and the industrial implications of network virtualization and overlays – Clark here tackles new forces shifting regulation and market structure.

David Clark is Senior Research Scientist at the MIT Computer Science and Artificial Intelligence Laboratory. In the forefront of Internet development since the early 1970s, Dr. Clark was Chief Protocol Architect in 1981-1989, and then chaired the Internet Activities Board. A past chairman of the Computer Science and Telecommunications Board of the National Academies, Dr. Clark is co-director of the MIT Communications Futures Program.

I’m no longer affiliated with the Information Economy Project at George Mason University, but I urge all interested in the architecture of the Internet to register and attend More information about the lecture, and about the Information Economy Project, is available at http://iep.gmu.edu/davidclark.

It will take place at the George Mason University School of Law, Room 120, 3301 Fairfax Drive, Arlington, VA 22201 (Orange Line: Virginia Square-GMU Metro), on Tuesday, February 3, from 4 – 5:30 p.m., with a reception to follow. The event is free and open to the public, but reservations are requested. To reserve a spot, please e-mail iep.gmu@gmail.com

Also, to see the compendium of broadband stimulus-related proposals, visit http://development.broadbandcensus.com/zipcodes/states.

The Internet Today and Tomorrow:

Social Implications of Evolving Technology

A Lecture by DAVID CLARK
Senior Research Scientist
MIT Computer Science and Artificial Intelligence Laboratory

Tuesday, February 3, 2009, 4 p.m.
George Mason University School of Law, 3301 Fairfax Drive, Arlington, Va.
Room 121

The Internet is now sufficiently embedded in society that it is regularly triggering social, economic and regulatory issues. The hot topics of today are network neutrality, network management, and the question of imposing regulatory limits on Internet service providers. However, those are just today’s hot topics. What will happen tomorrow? Can we speculate and perhaps get a bit ahead of the curve?

In this talk, Professor Clark will start with a perspective on today’s issue of network neutrality and the role of the ISP, and will then look further into the future to look at some emerging issues, such as the role of the social network as a platform, the problems of building a more secure and available Internet, the emerging requirement for identity mechanisms, and the industrial implications of network virtualization and overlays. This talk will describe some new ideas from the technical community that might shift the landscape of regulation and industrial structure.

Resources:

• David Clark’s MIT web page
• Written statement at FCC public hearing on network management, Cambridge, Mass., February 25, 2008
• “Complexity of Internet Interconnections: Technology, Incentives and Implications for Policy” (with P. Faratin, P. Gilmore, S. Bauer, A. Berger and W. Lehr), Paper at the Telecommunications Policy Research Conference, 2007
• “Addressing Reality: An Architectural Response to Real-World Demands on the Evolving Internet” (with Karin Sollins, John Wroclawski and Ted Faber), Paper at ACM SIGCOMM 2003 Workshops.
• “Tussle in Cyberspace: Defining Tomorrow’s Internet” (with Karen R. Sollins, John Wroclawski and Robert Braden), Paper at SIGCOMM 2002.

David Clark is a Senior Research Scientist at the MIT Computer Science and Artificial Intelligence Laboratory, where he has worked since receiving his Ph.D. there in 1973. Since the mid 70s, Dr. Clark has been leading the development of the Internet; from 1981-1989 he acted as Chief Protocol Architect in this development, and chaired the Internet Activities Board. His current research looks at re-definition of the architectural underpinnings of the Internet, and the relation of technology and architecture to economic, societal and policy considerations. He is helping the U.S. National Science foundation organize their Future Internet Design program. Dr. Clark is past chairman of the Computer Science and Telecommunications Board of the National Academies, and has contributed to a number of studies on the societal and policy impact of computer communications. He is co-director of the MIT Communications Futures Program, a project for industry collaboration and coordination along the communications value chain.

FCC Chairman Kevin Martin Resigns, Expresses Regret About Public Safety Communications

WASHINGTON, January 15, 2009 - Federal Communications Commission Chairman Kevin Martin on Thursday resigned from his position, effective Inauguration Day, and expressed the regret about the lack of interoperable communications networks for public safety officials. read more

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Broadband Stimulus Package Should Include Funding for State Data, Says Massachusetts

News

By Drew Clark, Editor, BroadbandCensus.com

WASHINGTON, January 2, 2009 – Congress and the incoming administration of President Obama should include broadband-related investment in the pending legislation designed to promote economic stimulus, and the federal government needs to begin with better data about broadband availability, said a top Massachusetts government official.

[more…]

Here’s the first couple of paragraphs:

WASHINGTON, DC - Nations ranging from Brazil to Brunei to Russia are failing to properly protect the intellectual property assets of US companies and others, and international organisations are not doing enough to stop it, seven IP attachés to the US Foreign and Commercial Service lamented recently.

Meanwhile, an industry group issued detailed recommendations for the incoming Obama administration’s changes to the US Patent and Trademark Office.

The problems in other nations extend from Brazil’s failure to issue patents for commercially significant inventions by US inventors, to an almost-complete piracy-based economy in Brunei, to an only-modest drop in the rate of Russian piracy from 65 percent to 58 percent.

The attachés, speaking at an event organised by the US Chamber of Commerce and its recently beefed-up Global Intellectual Property Center (GIPC), blasted the record of familiar intellectual property trouble zones like Brunei, Thailand and Russia.

But the problems extend to the attitudes and omissions of major trading partners like Brazil, India and even well-developed European nations, said the attachés.

[more at http://www.ip-watch.org/weblog/index.php?p=1387….]

By Drew Clark for Intellectual Property Watch

WASHINGTON, DC - With major legislative changes to the United States patent system unfinished as the 110th Congress prepares to dissolve, Executive- and Judicial-branch agencies on Friday jostled for authority over future patent policy.

Speaking at a Federal Trade Commission (FTC) hearing on “The Evolving Intellectual Property Marketplace,” FTC Chairman William Kovacic set the stage for what he said would be the “first in a series of events” to revisit the agency’s work five years ago on the impact patents have on competition policy.

Kovacic said that “coming up with good solutions to IP policy requires a genuinely multidisciplinary” approach, and that the FTC is well-suited to the task because of its ability to educate, convene and take appropriate enforcement actions.

Later in the day, the chief judge of the Federal Circuit Court of Appeals, which has jurisdiction over all patent appeals, said that neither Congress nor the executive branch should be actively involved in overhauling intellectual property.

Rather, said Chief Judge Paul R Michel, “We will probably make more progress in the courts through case law” than by asking the US Patent and Trademark Office (USPTO) or Congress to wade deep into intellectual property conflicts.

“Everyone should make their own choice about who is the right actor to make fine balancing decisions,” continued Michel, adding that “this is what courts do all the time, probably way better than Congress.”

[more at http://www.ip-watch.org/weblog/index.php?p=1352]

I highlight the speech by William Webb, Head of Research and Development and Senior Technologist, OFCOM, the telecommunications regulator in the United Kingdom, that is taking place at the Information Economy Project at George Mason University School of Law - tomorrow, Wednesday, November 12. Click here to register.

And, for an up-to-the-hour perspective on some of the reasoning behind the FCC’s recent actions on white spaces, see my piece at BroadbandCensus.com on “Kevin Martin’s Incredible Silicon Valley Wi-Fi Adventure,” which I posted on Friday.

Net Neutrality Advocates: Wireless Carriers’ Network Management Must be ‘Reasonable’

SAN JOSE, November 7 – Emboldened by their summertime victory against Comcast, advocates of network neutrality said Thursday that the next front in battle for the principle would be against wireless carriers who make “unreasonable” network management decisions. read more

FCC Chairman Kevin Martin’s Incredible Silicon Valley Wi-Fi Adventure

SAN JOSE, November 6 – It was Kevin Martin’s day to suck up praise from Silicon Valley. The chairman of the Federal Communications Commission – for about two more months – came to the Wireless Communications Association’s annual conference here on Thursday to be feted by many Googlers, including company co-founder Larry Page. read more

However, now is the moment in which I miss out: the crowd is scampering around FCC Chairman Kevin Martin. Now, a press conference, on the FCC webcast.