February 25, 2020

Archives for June 2010

Broadband Politics and Closed-Door Negotiations at the FCC

The last seven days at the FCC have been drama-filled, and that’s not something you can often say about an administrative agency. As I noted in my last post, the FCC is considering reclassifying broadband as a “common carrier” service. This would subject the access portion of the service to some additional regulations which currently do not apply, but have (to some extent) been applied in the past. Last Thursday, the FCC voted 3-2 along party lines to pursue a Notice of Inquiry about this approach and others, in order to help solidify its ability to enforce consumer protections and implement the National Broadband Plan in the wake of the Comcast decision in the DC Circuit Court. There was a great deal of politicking and rhetoric around the vote. Then, on Monday, the Wall Street Journal reported that lobbyists were engaged in closed-door meetings at the FCC, discussing possible legislative compromises that would obviate the need for reclassification. This led to public outcry from everyone who was not involved in the meetings, and allegations of misconduct by the FCC for its failure to disclose the meetings. If you sit through my description of the intricacies of reclassification, I promise to give you the juicy bits about the controversial meetings.

The Reclassification Vote and the NOI
As I explained in my previous post, the FCC faces a dilemma. The DC Circuit said it did not have the authority under Title I of the Communications Act to enforce the broadband openness principles it espoused in 2005. This cast into doubt the FCC’s ability to not only police violations of the principles but also to implement many portions of the National Broadband Plan. In the past, the Commission would have had unquestioned authority under Title II of the Act, but in a series of decisions from 2002-2007 it voluntarily “deregulated” broadband by classifying it as a Title I service. Chairman Genachowski has floated what he calls a “Third Way” approach in which broadband is not classified as a Title I service anymore, and is not subject to all provisions of Title II, but instead is classified under Title II but with extensive “forbearance” from portions of that title.

From a legal perspective, the main question is whether the FCC has the authority to reclassify the transmission component of broadband internet service as a Title II service. This gets into intricacies of how broadband service fits into statutory definitions of “information service” (aka Title I), “telecommunications”, “telecommunications service” (aka Title II), and the like. I was going to lay these out in detail, but in the interest of getting to the juicy stuff I will simply direct you to Harold Feld’s excellent post. For the “Third Way” approach to work, the FCC’s interpretation of a “telecommunications service” will have to be articulated to include broadband internet access while not also swallowing a variety of internet services that everyone thinks should remain unregulated — sites like Facebook, content delivery networks like Akamai, and digital media providers like Netflix. However, this narrow definition must not be so narrow that the FCC does not have jurisdiction to police the types of practices it is concerned about (for instance, providers should not be able to discriminate in their delivery of traffic simply by moving the discrimination from their transport layer of the network to the logical layer, or by partnering with an affiliated “ISP” that does discrimination for them). I am largely persuaded of Harold’s arguments, but the AT&T lobbyists present the other side as well. One argument that I don’t see anyone making (yet) is that presuming the transmission component is subject to Title II, the FCC would seem to have a much stronger argument for exercising ancillary jurisdiction with respect to interrelated components like non-facilities-based ISPs that rely on that transmission component.

The other legal debate involves an even more arcane discussion about whether — assuming there is a “telecommunications service” offered as part of broadband service — that “telecommunications service” is something that can be regulated separately from the other “information services” (Title I) that might be offered along with it. This includes things like an email address from your provider, DNS, Usenet, and the like. Providers have historically argued that these were inseparable from the internet access component, and the so-called “Stevens Report” of 1998 introduced the notion that the “inextricably intertwined” nature of broadband service might have the result of classifying all such services as entirely Title I “information services.” To the extent that this ever made any sense, it is far from true today. What consumers believe they are purchasing is access to the internet, and all of those other services are clearly extricable from a definitional and practical standpoint (indeed, customers can and do opt for competitors for all of them on a regular basis).

But none of these legal arguments are at the fore of the current debate, which is almost entirely political. Witness, for example, John Boehner’s claim that the “Third Way” approach was a “government takeover of the Internet,” Fred Upton’s (R-MI) claim that the approach is a “blind power grab,” modest Democratic sign-on to an industry-penned and reasoning-free opposition letter, and an attempt by Republican appropriators to block funding for the FCC unless they swore off the approach. This prompted a strong response from Democratic leaders indicating that any such effort would not see the light of day. Ultimately, the FCC voted in favor of the NOI to explore the issue. Amidst this tumult, the WSJ reported that the FCC had started closed-door meetings with industry representatives in order to discuss a possible legislative compromise.

Possible Legislation and Secret Meetings
It is not against the rules to communicate with the FCC about active proceedings. Indeed, such communications are part of a healthy policymaking process that solicits input from stakeholders. The FCC typically conducts proceedings under the “permit but disclose” regime in which all discussions pertaining to the given proceeding must be described in “ex parte” filings on the docket. Ars has a good overview of the ex parte regime. The NOI passed last week is subject to these rules.

It therefore came as a surprise that a subset of industry players were secretly meeting with the FCC to discuss possible legislation that could make the NOI irrelevant. This issue is made even more egregious by the fact that the FCC just conducted a proceeding on improving ex parte disclosures, and the Chairman remarked:

“Given the complexity and importance of the issues that come before us, ex parte communications remain an essential part of our deliberative process. It is essential that industry and public stakeholders know the facts and arguments presented to us in order to express informed views.”

The Chairman’s Chief of Staff Edward Lazarus sought to explain away the obligation for ex parte disclosure, and nevertheless attached a brief disclosure letter from the meeting attendees that didn’t describe any of the details. There is perhaps a case to be made that the legislative options do not directly fall under the subject matter of the NOI, but even if this position were somehow legally justifiable it clearly falls afoul of the policy intent of the ex parte rules. Harold Feld has a great post in which he describes his nomination for “Worsht Ex Parte Ever“. The letter attached to the Lazarus post would certainly take the title if it were a formal ex parte letter. The industry participants in the meetings deserve some criticism, but ultimately the problems can only be resolved by the FCC by demanding comprehensive openness rather than perpetuating a culture of loopholes.

The public outcry continues, from both public interest groups and in the comments on the Lazarus post. If it’s true that the FCC admits internally that “they f*cked up”, they should do far more to regain the public’s trust in the integrity of the notice-and-comment process.

Update: The Lazarus post was just updated to replace the link to the brief disclosure letter with two new links to letters that describe themselves as Ex Parte letters. The first contains the exact same text as the original, and the second has a few bullet points.

How Not to Fix Soccer

With the World Cup comes the quadrennial ritual in which Americans try to redesign and improve the rules of soccer. As usual, it’s a bad idea to redesign something you don’t understand—and indeed, most of the proposed changes would be harmful. What has surprised me, though, is how rarely anyone explains the rationale behind soccer’s rules. Once you understand the rationale, the rules will make a lot more sense.

So here’s the logic underlying soccer’s rules: the game is supposed to scale down, so that an ordinary youth or recreation-league game can be played under the exact same rules used by the pros. This means that the rules must be designed so that the game can be run by a single referee, without any special equipment such as a scoreboard.

Most of the popular American team sports don’t scale down in this way. American football, basketball, and hockey — the most common inspirations for “reformed” soccer rules — all require multiple referees and special equipment. To scale these sports down, you have to change the rules. For example, playground basketball has no shot clock, no counting of fouls, and nonstandard rules for awarding free throws and handling restarts—it’s fun but it’s not the same game the Lakers play. Baseball is the one popular American spectator sport that does scale down.

The scaling principle accounts for soccer’s seemingly odd timekeeping. The clock isn’t stopped and started, because we can’t assume a separate timekeeping official and we don’t want to burden the referee’s attention with a lot of clock management. The time is not displayed to the players, because we can’t assume the availability of a scoreboard. And because the players don’t know the exact remaining time, the referee gives the players some leeway to finish an attack even if the nominal finishing time has been reached. Most of the scalable sports lack a clock — think of baseball and volleyball — but soccer manages to reconcile a clock with scalability. Americans often want to “fix” this by switching to a scheme that requires a scoreboard and timekeeper.

The scaling principle also explains the system of yellow and red cards. A hockey-style penalty box system requires special timing and (realistically) a special referee to manage the penalty box and timer. Basketball-style foul handling allows penalties to mount up as more fouls are committed by the same player or team, which is good, but it requires elaborate bookkeeping to keep track of fouls committed by each player and team fouls per half. We don’t want to make the soccer referee keep such detailed records, so we simply ask him to record yellow and red cards, which are rare. He uses his judgment to decide when repeated fouls merit a yellow card. This may seem arbitrary in particular cases but it does seem fair on average. (There’s a longer essay that could be written applying the theory of efficient liability regimes to the design of sports penalties.)

It’s no accident, I think, that scalable sports such as soccer and baseball/softball are played by many Americans who typically watch non-scalable sports. There’s something satisfying about playing the same game that the pros play. So, my fellow Americans, if you’re going to fix soccer, please keep the game simple enough that the rest of us can still play it.

Rebooting the CS Publication Process

The job of an academic is to conduct research, and that means publishing manuscripts for the world to read. Computer science is somewhat unusual, among the other disciplines in science and engineering, in that our primary research output goes to highly competitive conferences rather than journals. Acceptance rates at the “top” conferences are often 15% or lower, and the process of accepting those papers and rejecting the rest is famously problematic, particularly for the papers on the bubble.

Consequently, a number of computer scientists have been writing about making changes to the way we do what we do. Some changes may be fairly modest, like increasing acceptance rates by fiat, and eliminating printed paper proceedings to save costs. Other changes would be more invasive and require more coordination.

If we wanted to make a concerted effort to really overhaul the process, what would we do? If we can legitimately concern ourselves with “clean slate” redesign of the Internet as an academic discipline, why not look at our own processes in the same light? I raised this during the rump session of the last HotOS Workshop and it seemed to really get the room talking. The discipline of computer science is clearly ready to have this discussion.

Over the past few months, I’ve been working on and off to flesh out how a clean-slate publishing process might work, taking advantage of our ability to build sophisticated tools to manage the process, and including a story for how we might get from here to there. I’ve written this up as a manuscript and I’d like to invite our blog readers, academic or otherwise, to read it over and offer their feedback. At some point, I’ll probably compress this down to fit the tight word limit of a CACM article, but first things first.

Have a look. Post your feedback here on Freedom to Tinker or send me an email and I’ll followup, no doubt with a newer draft of my manuscript.