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FCC: We Will Regulate Broadband

in Broadband Plan Commentary/Expert Opinion/FCC/National Broadband Plan by
U.S. Court of Appeals for the D.C. Circuit
Image by Ken Lund via Flickr

Since the dust has settled from a stinging defeat in federal court, the FCC has decided to move on its own to settle the broadband regulation dispute. With a 3-2 vote the commission issued a  Notice of Inquiry that would set the stage for more regulatory authority of broadband.

It seems ironic that the motivating factor was the court case brought by Comcast in Federal District Court to immobilize the FCC’s efforts to sanction the service provider from throttling Bit Torrent, file sharing customers. Evidently commissioners felt not only embarrassed that it did not have authority over broadband, but that any move to interfere in future disputes in net neutrality questions would be tied up in the courts for years. Not only were those issues, but parts of the National Broadband Plan was predicated on the FCC having authority to move its agenda forward, bringing this into question.

Clearly this is a commission determined, with the necessary votes, to stem the tide of court challenges of its authority in the broadband arena. Congress has been absent in formulating any new rules to effectively address the tremendous up-surge in Internet traffic resulting in these issues being brought to the forefront. The Telecommunications Act of 1996 did nothing to address the Internet since, at that particular time; most of us were barely getting our feet wet on this new and exciting realm. Now, the landscape has changed to remind everyone involved of the potential expand or retract the Internets growth and accessibility.

With constituents on opposite sides of the regulatory debate hitting Capitol Hill with power lobbyists, congress is now weighing in on the issue with rumblings of new bills to clarify the FCC’s responsibilities. A democratic congress could assure that laws are enacted to give the FCC its due course in reining in a perceived Wild-Wild West Show the Internet has provided by solidifying an upfront regulatory environment. 

Whether this will dampen investment in the very technology that could create and sustain new jobs should weigh in on every lawmaker in Washington, D.C. It could also run counterproductive to the President’s already lagging approval ratings if new jobs are not both a clear and near term focus. What does the economy need: a determined focus on job creation and job sustainability? Let us not forget that market investment, not regulation, creates and sustains new jobs.

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Comcast vs. FCC: Implications in throttling BitTorrent

in Expert Opinion/Net Neutrality by
Image representing BitTorrent as depicted in C...
Image via CrunchBase

Comcast is appealing a ruling before a three-judge appeals court panel concerning the FCC’s sanctions in 2008 of the operator, and whether it has jurisdiction under current Net Neutrality rules to do so, for what has become known throughout the media as past throttling of BitTorrent. (See FCC formally rules Comcast’s throttling of BitTorrent was illegal). This could be an important decision for ISP industry operators, who have many (irons-in-the-fire) when it comes to a business model that depends on both residential Internet and business customers, in helping it pay for a broadband pipeline created with private investment.

It also has implications for consumers who are increasingly using more file sharing applications to watch video content from their Internet Service Provider connections, and Internet giants like Google (Nasdaq: GOOG)who depend on free access to its information sharing business model. While Comcast (Nasdaq: CMCSA,CMCSK) has indicated their Internet management practices have since been changed, as a result of the issue, and it no longer throttles customers, what remains is a court challenge this past week in which the court grilled the FCC on its authority to regulate ISP’s under current Net Neutrality rules without a legislative mandate. (See Comcast Scores Against FCC in Court Battle over Net Neutrality).

The wider ramifications is whether the ruling will apply to business applications, which require special and unique service agreements for much larger file sharing and speeds in offering these programs. In essence, ISP’s need the flexibility to charge differing rates depending on the requirements of certain applications, which in-turn allow for infrastructure investments to accommodate these needs. This is their (Bread and Butter) of profitability.

One the one hand the FCC is under a mandate by the current administration to have a free flowing Internet with consumers and file sharing applications having unfettered access, and on the other, private investors which have created the pipeline are mandated by economics to make a profit depending on differing needs, from both consumer and business. If the FCC loses this current battle in court, then future challenges will likely occur concerning any new Net Neutrality rules that are adopted.

It seems from opening arguments before the courts that the FCC may have overstepped its boundaries in taking Comcast to task over BitTorrent, and may have to back up and ask Congress for a legislative mandate in regulating broadband as an information service.

Digital Natives May Force Rethinking on Copyright, Privacy and Broadband

in Expert Opinion by

Blog Entries

WASHINGTON, October 16 – As a part of its burgeoning lecture and discussion series, “DC Talks“, Google’s Washington office on Wednesday featured Berkman Center Director and Harvard Law Professor John Palfrey and his new book, Born Digital: Understanding the First Generation of Digital Natives.

Accompanying Palfrey were Sarah Zhang and Diana Kimball, two Harvard students and digital natives who served as both research assistants and research subjects for the book.

What’s a digital native, you ask? Palfrey was clear: digital natives are not a generation, like the baby boomers, they’re a population. This is because when you were born (after 1980) is only a piece of the equation that qualifies you to be a digital native. Equally important is your access to and effective use of digital technology.

For the last five or so years, popular media has been interested in digital natives: whether the media had such a specific, quirky term for these folks is another story. Palfrey introduced his book by reviewing some of the myths about digital natives: they’re dumb, they’re impatient and seek easy solutions, their privacy is disposable, they’re all copy-pirates, and they’re constantly at-risk online.

Palfrey, Zhang, and Kimball then set out on a myth-busting analysis of the digital natives. Well, not entirely myth-busting: as it turns out, copyright violators are common among the digital natives, they are a pretty impatient and fast-paced bunch, and most of what was once held private, they’re posting on Facebook.

But through an extensive literature review, interviews with digital natives around the world, and some thoughtful analysis, Professor Palfrey and his cohorts also describe in the book a population of digital natives that is anything but dumb, that is as innovative as any before it, and that is sophisticated enough in the digital space to keep danger at bay and work out complex coming-of-age issues within the peer-group.

And to look a little deeper into the topics of online copyright violation and privacy, the three speakers presented videos produced by the digital natives project that showed digital natives engaging with these issues and working-out perspectives on file-sharing and living a not-so-private life online that both policy makers and record companies should be attune to.

This all got me thinking: what will Washington be like when digital natives are the policy makers? Will we see a dramatic shift in priorities that will lead to the development of new paradigms and new solutions for internet policy conflicts? Will a digital native in the White House do for broadband what Eisenhower did for highways?

I asked the panelists if they felt today’s policy makers and presidential candidates were really addressing the issues that are important to digital natives and the researchers seemed to say that they couldn’t be sure yet. It seems the digital natives are only beginning to come of age when it comes to their political and policy preferences and Professor Palfrey noted that contrary to popular belief, not every digital native has a blog supporting Obama or has a fundraising website in support of their favorite cause.

According to Palfrey, while those who do utilize digital tools for political or social causes have been successful, the majority of digital natives are politically active. Kimball added that even when they are using the web to make a political statement by joining a Facebook group, for example, there’s really not a lot of substance behind it. She concluded her musings with some questions similar to my own: the big question is how will digital natives change everything? How will they change the music industry? How will they change education? Even, how will they change Washington?

The answers remain to be seen, but one thing that was clear from the panelists was that access and proficiency are key. As Palfrey said, digital natives are only a population, not a generation. However, I believe an important policy goal should be to make them a generation, which means extending access to and proficiency in digital tools.

Of course, bridging the traditional digital divide of disparities in access will help create more digital natives who are economically competitive and politically and social engaged in the 21st Century, but Palfrey brings up another component of the digital divide within the digital native category, one between digital settlers and digital immigrants. The settlers were early digital masters who remain proficient with the critical tools while digital immigrants have limited mastery of only a few tools.

Thinking back on some of the issues discussed – privacy risks, political engagement, online safety – I fear that digital immigrants, though they may have achieved vital access, will be at risk and at a disadvantage as the larger population of digital natives ascend.

Though Born Digital is a book aimed at the parents concerned for the future of digital natives, many of the concepts are just as important for policy makers who should share that concern.

New Broadband Ecosystem – With Content Protection – Offers Better Future for Entertainment Industry

in Broadband's Impact by

WASHINGTON, October 8 – The “broadband ecosystem” of the future needs strong legal, technological and cultural efforts to protect American intellectual property, a group of entertainment and technology executives said Wednesday at the U.S. Chamber of Commerce’s Fifth Intellectual Property Summit.

Although the panelists also spoke about the importance of preserving users’ right to make “fair use” of copyrighted material, they emphasized the importance of technological protection measures.

“We know the story” on the history of the music industry, said Mark McKinnon of Arts+Labs, a coalition of technology and entertainment companies that develops content delivery and protection systems.

McKinnon compared the music industry’s negative experience with Napster file-sharing service with the success of commercial video sharing site Hulu. McKinnon said Hulu accounts for 90% of commercial television being viewed online. “The models are finally being figured out.” In the future, consumers would respond positively to online content that is affordable, legal, and safe, said McKinnon.

There is “no question” that old business models need to change in a networked world, said Rick Cotton, executive vice president and general counsel for NBC Universal. Embracing digital distribution will “drive the future,” Cotton said. “It’s what consumers want.”

New content protection technology brings the promise of a “mature model” of internet distribution that avoids “the dark side” of peer-to-peer technology, said Cotton. The broadband ecosystem envisioned by Cotton would somehow tell people that they can access programming as they please, but also send a message that stealing is not acceptable. Such an ecosystem must be built cooperatively, balancing ease of access, consumer desires and a choice of ad-based or fee-based models.

Putting content-style restrictions on technology can be an “enormously powerful teacher” that can teach people on a “speed bump basis,” Cotton said. Without such technological measures, Cotton said, young people could grow up believing that “if [downloading pirated content] is easy, it can’t be wrong.”

Referring to the success of Hulu and NBC’s Olympic video streaming, Cotton said that a broadband-based model would be successful if there are clear “rules of the road,” and as long as consumers could easily access legal content.

Content protection has a critical role to play in the future, said Rick Lane, senior vice president of government affairs at News Corporation. Protection mechanisms have to allow some control for content owners, while leaving room for new and innovative business models, he said. Without content protection mechanisms, Lane predicted that online content would be reduced to the model of a DVD purchase.

More consumer education would cut down on “Net Pollution,” McKinnon said, suggesting educational campaigns to link pirated content with malware and viruses.

The ecosystem would have some room for fair use, Cotton said. Content protection is not about facilitating mashups, he emphasized. Rather, technological restrictions must focus on whole episodes, skits, and movies, he said.

“Fair use should not be a code word for doing nothing,” Cotton proclaimed, adding that technology should send cues about what is right.

Lane and McKinnon agreed that consumer convenience is paramount in any content protection scheme and should be “seamless,” Lane said. McKinnon predicted that with the rise of broadband and good content protection, it would not be long before “DVD’s are like 8-tracks.”

Fair use is not incompatible with content protection, Lane said. Content protection technology is a “key component” of the future broadband economy, and mechanisms could be devised to protect fair use as well as copyrights. Lane cited News Corp.’s MySpace Music as an example. He said that MySpace had received “zero complaints” about its content protections restricting fair use.

Lane said the idea that News Corporation is against fair use was “ridiculous.” Cotton said that fair use and privacy are too often used as “scare tactics,” and said people need to “get past the name calling” when it comes to examining content protection mechanisms. “Trying to create fear doesn’t help the dialogue,” he said.

Cotton said later in an interview that improving technology will make piracy more difficult, but consumer rights and fair use will be protected with “reasonable accommodations” built into copy protection technology. The “vast majority of people” will be satisfied by such accommodations, while fulfilling the goal of cleaning up the “wild west” of today’s internet, he said.

In an interview, David Sohn of the Center for Democracy and Technology took issue with Cotton’s characterization of fair use as a “code word” for anything. Content protection systems can’t distinguish fair use from copyright infringement, Sohn said. Instead, he called fair use an “important policy consideration” that is not only enshrined in law, but is also a “safety valve” so that copyright law doesn’t violate the First Amendment.

Sohn said he hoped the future will include a “broad range” of options available to consumers. Such options should be in response to consumer demand for content models that meet their needs. Market pressures simply won’t allow content to be completely locked down, he said.

Broadband Breakfast Club Forum on the Digital Millennium Copyright Act:

Editor’s Note: Don’t miss “10 Years Under the Digital Millennium Copyright Act – Success or Failure?”, on Tuesday, October 14, from 8 a.m. to 10 a.m. at Old Ebbitt Grill, 675 15th Street NW, Washington.

This event, the kick-off event in the monthly “Broadband Breakfast Club” hosted by BroadbandCensus.com, is designed to bring several key stakeholders together to share perspectives on this topic:

  • Drew Clark, Executive Director, BroadbandCensus.com (Moderator)
  • Mitch Glazier, Senior Vice President, Government Relations, Recording Industry Association of America
  • Michael Petricone, Senior Vice President, Government Affairs, Consumer Electronics Association
  • Wendy Seltzer, Practitioner in Residence, Glushko-Samuelson Intellectual Property Law Clinic, American University Washington College of Law
  • Emery Simon, Counselor, Business Software Alliance

Breakfast for registrants will be available beginning at 8:00 a.m., and the forum itself will begin at around 8:30 a.m., and conclude promptly at 10 a.m. Seated attendance is limited to the first 45 individuals to register for the event. For more information, visit http://broadbandbreakfast.eventbrite.com

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