April 24, 2014

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Is There a Future for Net Neutrality after Verizon v. FCC?

In a decision that was widely predicted by those who have been following the case, the Court of Appeals for the D.C. Circuit has invalidated the FCC’s Open Internet Rules (so-called net neutrality regulations), which imposed non-discrimination and anti-blocking requirements on broadband Internet access providers. The rules were challenged by Verizon as soon as they were enacted in 2010. The court held that, given the FCC’s past (and never reversed or modified) regulatory choice to classify broadband providers under the Telecommunications Act of 1996 as “information services” rather than “telecommunications services,” it cannot now impose on them common carrier obligations that apply under the statute only to services classified as telecommunications. Verizon argued in the case that the Open Internet Rules were not common carrier regulations, but the court didn’t buy it.
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Annual report of FCC’s Open Internet Advisory Committee

For the past year, I’ve been serving on the FCC’s Open Internet Advisory Committee (OIAC), and chairing its mobile broadband working group. The OIAC just completed its first annual report (available here). The report gives an overview of the past year of work from four working groups (economic impacts, mobile broadband, specialized services, and transparency). I highly recommend anyone interested in Open Internet issues take a look.
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Arlington v. FCC: What it Means for Net Neutrality

[Cross-posted on my blog, Managing Miracles]

On Monday, the Supreme Court handed down a decision in Arlington v. FCC. At issue was a very abstract legal question: whether the FCC has the right to interpret the scope of its own authority in cases in which congress has left the contours of their jurisdiction ambiguous. In short, can the FCC decide to regulate a specific activity if the statute could reasonably be read to give them that authority? The so-called Chevron doctrine gives deference to administrative agencies’ interpretation of of their statutory powers, and the court decided that this deference extends to interpretations of their own jurisdiction. It’s all very meta, but it turns out that it could be a very big deal indeed for one of those hot-button tech policy issues: net neutrality.

Scalia wrote the majority opinion, which is significant for reasons I will describe below. The opinion demonstrated a general skepticism of the telecom industry claims, and with classic Scalia snark, he couldn’t resist this footnote about the petitioners, “CTIA—The Wireless Association”:

This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.

Ha. Ok, on to the merits of the case and why this matters for net neutrality.
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Blocking of Google+ Hangouts Android App

Earlier this week, online news sites started reporting the apparent blocking of Google’s Google+ Hangout video-chat application on Android over AT&T’s cellular network [SlashGear, Time, ArsTechnica].

Several of the articles noted the relationship to an earlier controversy concerning AT&T and Apple’s FaceTime application. Our Mobile Broadband Working Group at the FCC’s Open Internet Advisory Committee released an case study on the AT&T’s handling of FaceTime in January of this year. Our report may help inform the new debate on the handling of the Google Hangout video app on cellular networks.

Addendum (5/21/2013): AT&T announces support for FaceTime over cellular under all pricing plans over LTE by the end of the year [MacObserver, The Register].

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White House Statement on Cell Phone Unlocking: A First Step Toward DMCA Reform?

Yesterday, the White House officially responded to the online petition to “Make Unlocking Cell Phones Legal,” which garnered more than 100,000 signatures in under 30 days. The Administration’s headline was emphatic: “It’s Time to Legalize Cell Phone Unlocking.” The tech press heralded this significant but symbolic first step in addressing some of the most egregious shortcomings of the Digital Millennium Copyright Act (DMCA). I hope the White House’s response signals a new chapter in the struggle to regain the freedom to innovate, research, create, and tinker. Last week, I discussed the petition and its context with Derek Khanna, who has been a champion of the cause. You can watch the video here:

As Derek pointed out, this battle is connected to a much larger policy problem: the DMCA bans many practices that are good for society–and without clear counterbalancing benefits. Reading the White House statement, it is hard to tell whether the Administration appreciates this fact.
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FCC Open Internet Advisory Committee Progress

Earlier this year, I wrote about the launch of the Open Internet Advisory Committee (OIAC). The committee’s mandate is to, “track and evaluate the effect of the FCC’s Open Internet rules, and to provide any recommendations it deems appropriate to the FCC regarding policies and practices related to preserving the open Internet.” I’m chairing the group looking at the unique issues in Mobile Broadband networks. Our group just issued its first report, a case study about AT&T’s handling of Apple’s FaceTime application:

AT&T/FaceTime Case Study
Mobile Broadband Working Group, Open Internet Advisory Committee, Federal Communications Commission

I spoke about the progress of our working group, and about the open Internet issues facing mobile broadband networks more generally, here at Princeton as part of CITP’s luncheon series on December 13th: “Open Internet Challenges in Mobile Broadband Networks”. See the video below:

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My Work at Princeton: Mobile Technology, Community Building and Civic Engagement

I’m excited to spend my year as a Fellow at the Center for Information Technology Policy exploring and testing ideas about how broadband technology – particularly mobile wireless services – can and should be used to build strong local communities.

Patent Diagram ThumbmnailI have always been interested in how seemingly simple improvements to the existing way of doing something can make a big difference. As I was heading off to become an undergrad, I received a patent on new type of plastic bottle for dispensing thick liquids, such as ketchup. I figured that every extra little bit that people could get out of the bottom of ketchup, lotion, shampoo, and salad dressing bottles would save consumers a little money and add a little bit of convenience. For a variety of reasons that I’d be happy to discuss more in person, the plastic bottling industry did not shower me with royalties.
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Open Internet Advisory Committee kick-off

Last Friday, we had the first meeting of the Open Internet Advisory Committee (OIAC), called for by the FCC in the recent Open Internet Order. The members of the OIAC  consist of a mix of folks from venture capital firms, ISPs, governance organizations, community organizations, and academics like myself.  The OIAC’s mission is to “track and evaluate the effect of the FCC’s Open Internet rules, and to provide any recommendations it deems appropriate to the FCC regarding policies and practices related to preserving the open Internet.”  The video of our kick-off meeting is online.

In addition to the full meeting of the OIAC, we broke into four working groups — on mobile broadband, economic impacts of Open Internet frameworks, specialized services, and transparency. I’m chairing the group looking at Mobile Broadband, a tremendously important area since wireless and cellular networks are rapidly becoming the dominant way users access the Internet.  I’m looking forward to working with the rest of the working group, and the rest of the OIAC, to better understand how to ensure openness and transparency, while preserving the ability of service providers to manage their networks.  One thing is certain — fun and interesting times lie ahead!

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I Tell the FCC to End In-Home Video Encryption

In my last post, I asked “Who Killed the Open Set-Top-Box?.” There were some great comments on that post, which inspired me to write up my thoughts and send them to the FCC. The FCC has long tried and failed to mandate that cable companies make their systems more interoperable with third-party consumer devices. Nevertheless, the Commission recently opened a proceeding (11-169) to consider whether to end the “encryption ban” that had preserved the ability of third-party devices to receive basic-tier television signals. Boxee initially protested because its users often rely on these unencrypted signals, but eventually relented when Comcast promised to deliver a Digital Transport Adapter (DTA) workaround that would involve, “the creation of a licensing path for integrating DTA technology into third-party devices.” This push to impose licensing regimes on third-party devices is the latest in a series of such pushes stretching back to the mid-1990′s. I just filed a comment arguing that if the FCC wants to get rid of the encryption ban on basic cable, it should simultaneously think about doing away with problematic licensing and encryption schemes on the consumer-facing side of the set-top box. You can download the PDF from the FCC, or read the text after the jump.
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Who Killed the Open Set-Top-Box?

A few years ago, I lived in Cambridge, Massachusetts. With my trusty Hauppauge WinTV-PVR-150 I enjoyed the ability to watch and record Comcast TV on my desktop computer — and even to occasionally edit and re-upload it to YouTube along with fair use critical commentary. When I moved across the river to Boston, Comcast required me to pay for a set-top box that would tune channels on my television. However, when I plugged my PVR-150 into the cable connection, it got almost no channels at all. As it turns out, the Comcast system in Boston had been migrated to use mostly digital signals, but my tuner card worked only with analog cable signals. Fair enough, I thought, I’ll buy a digital cable tuner. As it turned out, that wouldn’t help much. The cable companies had implemented encryption to fight “service theft” of most channels that subscribers had not paid for. As a result, I lost the ability to view channels I had paid for on a device of my choosing.
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