Category: Law

Ars Technica botches another story

Why is it so hard for the tech press report on the broadband business with some semblance of accuracy? I know some of this stuff is complicated, but if it’s your business to explain technology and business developments to the public, isn’t it reasonable to suppose you’re going to get the facts right most of the time?

Case in point is Matthew Lasar at Ars Technica, the hugely popular tech e-zine that was recently purchased by Conde Nast/Wired for $25 million, healthy bucks for a web site. Lasar is a self-appointed FCC watcher who seems to consistently botch the details on targets of FCC action. The most recent example is a story about a clarification to AT&T’s terms of use for its U-Verse triple play service. The update advises customers that they may see a temporary reduction in their Internet download speed if they’re using non-Internet U-Verse television or telephone services that consume a lot of bandwidth. Lasar has no idea what this means, so he turns to Gizmodo and Public Knowledge for explanation, and neither of them gets it either. So he accepts a garbled interpretation of some AT&T speak filtered through Gizmodo’s misinterpretation as the gospel truth of the matter:

Ars contacted AT&T and was told by company spokesperson Brad Mays that the firm has no intention of “squeezing” its U-verse customers. “It’s more a matter of the way data comes into and travels around a home,” Mays said. “There are things (use of PCs, video, etc.) that can impact the throughput speed a customer gets. We are not doing anything to degrade the speed, it’s just a fact of the way data travels.”

The AT&T guy is trying to explain to Lasar that U-Verse TV uses the same cable as U-Verse Internet, but U-Verse TV has first call on the bandwidth. The cable’s bandwidth is roughly 25 Mb/s, and HDTV streams are roughly 8 Mb/s. If somebody in your house is watching two HDTV shows, 16 of that 25 is gone, and Internet can only use the remaining 9, which is a step down from the 10 Mb/s that it can get if you’re running one HDTV stream alongside an SDTV stream.

This isn’t a very complicated issue, and it shouldn’t be so muddled after multiple calls to AT&T if the writers in question were mildly up-to-speed on IPTV.

Lasar botched another recent story on Comcast’s agreement with the Florida Attorney General to make its monthly bandwidth cap explicit as well, claiming that Comcast had adopted the explicit cap in a vain attempt to avoid a fine:

Ars contacted the Florida AG about this issue, and received the following terse reply: “We believe the change pursuant to our concerns was posted during our investigation.” When asked whether this means that when the AG’s probe began, Comcast didn’t post that 250GB figure, we were told that the aforementioned one sentence response explains everything and to have a nice day.

In fact, the cap was part of its agreement with Florida, as the AG’s office explains on its web site:

Under today’s settlement, reached with Comcast’s full cooperation, the company has agreed not to enforce the excessive use policy without prior clear and conspicuous disclosure of the specific amount of bandwidth usage that would be considered in violation of the policy. The new policy will take effect no later than January, 1, 2009.

And everybody who follows the industry knows that. The Comcast cap is also less meaningful than Lasar reports, since Comcast says they’re only going to get tough on customers in excess of the cap who are also in the top 1% of bandwidth consumers, so simply going over 250 GB won’t get you in trouble at the future date in which everyone is doing it.

The tech press in general and Ars Technica in particular needs to upgrade its reporting standards. It’s bad enough when Ars trots out opinion pieces on network neutrality by Nate Anderson thinly disguised as reporting; most sensible readers understand that Anderson is an advocate, and take his “reporting” with the necessary mix of sodium chloride. But Anderson doesn’t consistently get his facts wrong the way Lasar does.

It would be wise for Ars to spend some of the Conde Nast money on some fact-checkers, the better to avoid further embarassment. We understand that Gizmodo is simply a gadget site that can’t be counted on for deep analysis, and that Public Knowledge is a spin machine, but journalists should be held to a higher standard.

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Sarah Palin, Abuser of Children

Newsweek has some interesting back story on Sarah Palin’s Troopergate scandal. Three years ago, the Alaska courts found she had engaged in a form of child abuse and told her to stop:

Court records obtained by NEWSWEEK show that during the course of divorce hearings three years ago, Judge John Suddock heard testimony from an official of the Alaska State Troopers’ union about how Sarah Palin—then a private citizen—and members of her family, including her father and daughter, lodged up to a dozen complaints against Wooten with the state police. The union official told the judge that he had never before been asked to appear as a divorce-case witness, that the union believed family complaints against Wooten were “not job-related,” and that Wooten was being “harassed” by Palin and other family members.

Court documents show that Judge Suddock was disturbed by the alleged attacks by Palin and her family members on Wooten’s behavior and character. “Disparaging will not be tolerated—it is a form of child abuse,” the judge told a settlement hearing in October 2005, according to typed notes of the proceedings. The judge added: “Relatives cannot disparage either. If occurs [sic] the parent needs to set boundaries for their relatives.”

The emotional abuse of children suffering from their parents’ unpleasant divorce is a very serious matter, one that casts doubt on the mental stability and judgment of the adults involved. Given that Palin acted this way from one step removed – it was her sister’s divorce, not hers – makes this behavior even more troubling. If I hadn’t already decided not to vote for Palin because of her lack of intellect and experience, this would have turned me around. We don’t need any child abusers in the White House.

Kevin Martin threatens Comcast

Kevin Martin is upset that Comcast has challenged his authority by filing a lawsuit against the FCC for making up law out of thin air. The Chairman of the FCC expressed his scorn by releasing a statement that makes him sound like one of the dumbest men in America:

“Given Comcast’s past failure to disclose its network management practices to its customers, it is important Comcast respond to the many still-unanswered questions about its new management techniques,” Martin warned in a statement released this afternoon. Most notably, what exactly does Comcast mean when it says it will have a “protocol agnostic” management system in place by the end of the year?

And as for the bandwidth limits that Comcast has now announced: “How will consumers know if they are close to a limit?” Martin asked. “If a consumer exceeds a limit, is his traffic slowed? Is it terminated? Is his service turned off?”

Let’s see if we can help the Chairman:

1. The “end of the year” is December 31, at midnight. In urban areas, people will make noise and drink a lot. It would be good for Kevin Martin to be among them.

2. Comcast has said they’ll write a *very mean letter* to customers over the 250 GB limit and among the top 1% in bandwidth consumption. It was in the papers, but not on the funny page.

3. I won’t define “protocol agnostic” as that subject was covered, at length, the order the FCC’s lawyers wrote in the Comcast matter. Martin should have one of them explain it to him.

Where did Bush find this person?

Comcast Appeals

Comcast has appealed the FCC’s crazy order in the DC Circuit today. Here’s the statement:

Although we are seeking review and reversal of the Commission’s network management order in federal court, we intend to comply fully with the requirements established in that order, which essentially codify the voluntary commitments that we have already announced, and to continue to act in accord with the Commission’s Internet Policy Statement. Thus, we intend to make the required filings and disclosures, and we will follow through on our longstanding commitment to transition to protocol-agnostic network congestion management practices by the end of this year. We also remain committed to bringing our customers a superior Internet experience.

We filed this appeal in order to protect our legal rights and to challenge the basis on which the Commission found that Comcast violated federal policy in the absence of pre-existing legally enforceable standards or rules. We continue to recognize that the Commission has jurisdiction over Internet service providers and may regulate them in appropriate circumstances and in accordance with appropriate procedures. However, we are compelled to appeal because we strongly believe that, in this particular case, the Commission’s action was legally inappropriate and its findings were not justified by the record.

It’s a little odd that they have to appeal to resolve the procedural irregularities despite planning to follow the order anyhow. But that’s life.

Media Access Project has already filed appeals in the 2nd, 3rd, and 9th circuits, in an attempt to create a jurisdiction fight that would have to be resolved by the Supremes. MAP wants the court to waive the phase out period for Comcast’s Sandvine system, but that’s simply a pretext for the jurisdiction fight.

Story in Broadcasting and Cable.

Your broadband service is going to get more expensive

See my article in The Register to understand why your broadband bill is going to rise:

Peer-to-peer file sharing just got a lot more expensive in the US. The FCC has ordered Comcast to refrain from capping P2P traffic, endorsing a volume-based pricing scheme that would “charge the most aggressive users overage fees” instead. BitTorrent, Inc. reacted to the ruling by laying-off 15 per cent of its workforce, while network neutrality buffs declared victory and phone companies quietly celebrated. Former FCC Chairman Bill Kennard says the legal basis of the order is “murky.”

Comcast will probably challenge on grounds that Congress never actually told the regulator to micro-manage the Internet. In the absence of authority to regulate Internet access, the Commission has never had a need to develop rules to distinguish sound from unsound management practice. The order twists itself into a pretzel in a Kafka-esque attempt to justify sanctions in the absence of such rules.
Technically speaking, they’re very confused

The FCC’s technical analysis is puzzling, to say the least.

The order describes an all-powerful IP envelope, seeking to evoke an emotional response to Deep Packet Inspection. The order claims the DPI bugaboo places ISPs on the same moral plane as authoritarian regimes that force under-aged athletes into involuntary servitude. But this is both uninformed and misleading. Network packets actually contain several “envelopes”, one for each protocol layer, nested inside one another like Russian dolls. Network management systems examine all envelopes that are relevant, and always have, because there’s great utility in identifying protocols.

The FCC’s order is especially bad for people who use both P2P and Skype. The comments lack the usual snarkiness, and I don’t know if that’s good or bad.

UPDATE: Right on cue, a price war is breaking out between cable and phone companies, according to the Wall St. Journal. I wonder if the converts are going to be the high-volume users worried about the caps, or the nice, low volume grannies every carrier wants.

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Guardian takes on the Google myth

David Smith confronts the Google myth for The Observer, including accounts of the pilgramages politicians take to Google HQ:

Shortly after Obama’s pilgrimage to the ‘Googleplex’, it was the turn of David Cameron. Cameron was accompanied there by Steve Hilton, his director of strategy, who has since moved permanently to California with his wife, Rachel Whetstone, Google’s vice-president of global communications and public affairs (she is also godmother to Cameron’s eldest son, Ivan). Andrew Orlowski, executive editor of the technology website The Register, says: ‘The web is a secular religion at the moment and politicians go to pray at events like the Google Zeitgeist conference. Any politician who wants to brand himself as a forward-looking person will get himself photographed with the Google boys.’

Washington, also, is keen to bathe in Google’s golden light. Al Gore, the former Vice-President, is a long-time senior adviser at the company. Obama has been taking economic advice from Google CEO Eric Schmidt and received generous donations from Google and its staff. Google will be omnipresent at the Democratic and Republican national conventions, providing software for delegates such as calendars, email and graphics. ‘Google has moved into the political world this year,’ says its director of policy communications, Bob Boorstin, a former member of the Clinton administration.

Google’s staff in Washington include five lobbyists, among them Pablo Chavez, former general counsel for John McCain. This year Google moved into new 27,000-square-foot headquarters in one of Washington’s most fashionable, eco-friendly buildings. Visiting senators and congressmen can now share in the famed ‘googly’ experience of free gourmet lunches, giant plasma screens and a game room, named ‘Camp David’, stocked with an Xbox 360 and pingpong.

None of this much impressed Jeff Chester, the executive director of the small but influential Center for Digital Democracy, when he was invited there. ‘It puts all the other lobbying operations to shame,’ he says. ‘They invite politicians into their Washington HQ to give advice on using Google to win re-election. It is the darling of the Democratic Party and there’s no doubt that a win by Obama will strengthen Google’s position in Washington.’

Undeterred by criticisms of his benefactor, Google’s professor of piracy rights, Larry Lessig, congratulates Google’s boys at the FCC for protecting the Google monopoly in a rare foray into the world of the written word. It’s quite amusing and utterly deranged.

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FCC finally issues Comcast memo

Kevin Martin and his Democratic Party colleagues at the FCC have issued their Comcast order, available at this link. They find some novel sources of authority and apply some interesting interpretations of the facts. I’ll have some detailed commentary after I’ve read it all and checked the footnotes. It’s an amusing exercise, if you like that sort of thing.

For a good summary of the order, see IP Democracy.

Will Google be the FCC’s next target?

Truth is stranger than fiction. This report in ZDNet suggests that Google may well find itself in the crosshairs of net regulators gone wild:

Google clearly wants the FCC to make sure that other private companies’ networks are open equally to all Internet services. Now, it will be interesting to see if that applies to networks in which Google is involved.

On Friday, the Commission takes up the question of whether Comcast Corp., the nation’s largest provider of high-speed access to the Internet, is “secretly degrading peer-to-peer applications,’’ as the FCC agenda puts it.

As Multichannel News reports, Google Inc. is pressing the Commission to provide clear guidance to broadband network owners on acceptable ways of managing Internet traffic.

Google is shortly to become a network operator, a partner with Comcast in the Clearwire 4G network. Google intends to secure itself pride of place with a Google button on the Clearwire phone, a violation of all that is holy and neutral. This should be fun.

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Kevin Martin’s secret regulations

As the crescendo of criticism builds against the FCC’s pending publication of its new rules for Internet access providers, the New York Times emerges as the sole source of pro-FCC coverage. They publish a bizarre Op-Ed by Free Press chairman Tim Wu equating competing carriers with OPEC and mistaking the general trend in broadband prices – sharply down – with the trend for gas prices, which goes in the opposite direction entirely:

AMERICANS today spend almost as much on bandwidth — the capacity to move information — as we do on energy. A family of four likely spends several hundred dollars a month on cellphones, cable television and Internet connections, which is about what we spend on gas and heating oil.

Here’s what’s happening to broadband prices at Comcast:

High-speed Internet revenue increased 10% to $1.8 billion in the second quarter of 2008 from $1.6 billion in 2007 reflecting a 12% increase in subscribers and a 3% decline in average monthly revenue per subscriber to $42.01, reflecting the impact of additional bundling and the recent introduction of new offers and speed tiers.

I’d love to see a 3% monthly decline in gas prices, even at the same volume level. But the Comcast figures show consumers upgrading to higher speed tiers (like Blast, which I measure at 28 Mb/s download speed) and still seeing an average decline in prices. Wu isn’t talking about life in the Real WorldTM.

Martin himself held a pow-wow with Times reporters, hoping to evoke some of that old-time populism that the nation’s elite daily is so good at. BITS blogger Saul Hansell reports on Martin’s faulty facts and shoddy analysis:

“The network operators can recoup their investment in the network and can charge for access to network services, but consumers have complete control over the devices and content that don’t have anything to do with investment in the underlying network,” he said.

I asked about reports that AT&T now bans all use of peer-to-peer networking software on its wireless data network. It also bans some video services, like the Slingbox feature that lets you watch your home television signal on your cellphone.

Mr. Martin declined to answer. His view is that the commission should not publish explicit regulations. Rather, it should address complaints that are made, as it did with the Comcast case.

“The commission is very careful in that we look at the particular facts that are in front of us. We are not judging the next case,” he said. “Hard and fast rules can actually be over- and under-inclusive, and they can also have adverse impact.”

Mr. Martin was asked whether the commission’s approach will push more Internet providers to start to impose caps on how much bandwidth consumers can use.

He said he wanted to reserve judgment on that trend. He seemed comfortable with Internet providers offering services with limits, so long as they are clearly stated.

So we have this new regime for Internet access providers where every move they make is to be judged according to a list of secret regulations. If ever there was a recipe for stalemate, this is it.

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Federal umpire blows a call

The Wall St. Journal joins the chorus of Bronx cheers aimed at Kevin Martin, the one-eyed federal umpire who blew a call that wasn’t even close:

Those who would use Comcast’s actions to argue for more Internet regulation have misidentified the Big Brother problem. It’s not the private sector they should be worried about. There’s no evidence that Comcast was trying to suppress a political view or favor one of its own services. By all appearances, the company’s policies were motivated by nothing more than making sure a tiny percentage of bandwidth hogs didn’t slow down Internet traffic for everyone else on the network.

Giving the government more say in network management, by contrast, introduces all kinds of potential for political mischief. Net neutrality is a slippery slope toward interventions of all kinds — not merely over access but ultimately over content. Naturally, the most powerful lobbies will have the largest sway. Mr. Martin’s decision in this case may well be driven by his own political hostility to Comcast and the cable industry for resisting some of his other policy priorities.

Mr. Martin’s bad instincts notwithstanding, the FCC’s job is not to determine business models in the private sector. The community of Internet service and content providers has proven itself more than able to work out problems on its own as Web use has exploded. If there are bottlenecks in the future, some providers might choose to block file-sharing services at certain hours of the day. Others might opt for some kind of metered or tiered pricing. Banning these options will only reduce incentives to upgrade networks and launch new services.

Regulators would do better to focus on keeping the overall telecom marketplace competitive. If Comcast customers don’t like the company’s network management policies, they’re free to take their business to Verizon, or AT&T, or some other Internet service provider. A World Wide Web run by Kevin Martin and his political friends will leave us with poorer quality and fewer options all around.

Internet users are several times more likely to suffer from slowed or degraded service on account of their neighbors than their ISPs, so Comcast’s actions have been reasonable. And as many others have noted, the regulatory role is to resolve impasses in the technical collaboration process, not to substitute political insight for engineering knowledge.

Martin blew this one, there’s no doubt about it. We need instant replay in politics.

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