A Public Private Partnership We Can All Do Without

The phrase "Public Private Partnership"- "PPP" in shorthand - just sounds so good. It is everything we want from our leaders in business and government, evoking a Rodney King-like "People, I just want to say, you know, can we all get along?" sentiment.

But whether a PPP is a good cure, even good medicine, depends on
a) the epiphany ("something's not right, we can do better...)
b) the diagnosis ("what's wrong, how serious is it?");
c) the prognosis ("how bad will it get, Doc?");
d) the treatment options ("what can we do, what our options?"); and
e) the potential side effects and unintended consequences (" what can we expect, what should we watch out for?").

In the case of broadband projects in cities, I'm convinced alternate broadband options will only gain traction if local public and private sector leaders manage to come together to foster change, so I'm a proponent of PPP. If that means we'll have a slow ramp up until any number of questions have been answered, then so be it. This is change that could take awhile, but be worth it in the end.

It's certainly no reason to shy away from the issues that we face, no reason to shirk this path, no reason to discourage experimentation. In fact, we strongly encourage all of these things on this site. If there's a broader (forgive the pun) context to this debate about metropolitan broadband, it's the role of National Broadband Policy to lay out the issues and forge a consensus, and the role of our leadership at all levels to define and explain the impact of the internet on our lives going forward and plan both for positive aspects and potential negative aspects. Either way, the Genie is out of the bottle, the changes are coming.

With that in mind, another thing I've been doing lately is to highlight the debate going on in Washington DC about the role of the telecommunications industry in bringing broadband infrastructure to the nation, and of late, about their role in helping the government in its efforts to "keep America safe."

With the eroded trust levels the executive branch has earned over the past six years, I think this issue deserves close scrutiny, because all too often we have learned after the fact that the story we were told when we accepted changes proposed by either the government or the telecoms was in fact false and slanted, by an administration or telecom executives who had motives besides those they would talk about in public. Indeed, it looks like that has been the case here, where spying on the American public was a goal held by the government and accommodated by the telecoms even before that tragic day in September six years ago. More after the jump.

IMHO, we have two parties who have already been working in a PPP:
a) one Public (Executive Branch of the Federal Government); and
b) one Private (AT&T and Verizon, the two largest telecom firms in the US, both heavily engaged at all levels of government).

These two halves of a partnership have each done much to earn a high level of distrust and skepticism based on a history of secrecy and abuse of political power. But we need both of these institutions and neither is going away anytime soon. So we have to find a way to get them to work more for the nation and less for themselves.

So forgive me when I look at this situation with a somewhat jaundiced eye. Having the large telecoms open up their networks and their customer data files to a federal government in a climate of national fear is dangerous, to say the least. That the public partner, sworn to uphold the Constitution, has shown consistent disdain for the rule of law is a red flag. In sum, I believe this is a Public Private Partnership that we can do without.

In this particular case, release of data without a warrant has already gone on for over five years, and has resulted in an erosion of constitutional protections that are the foundation of our way of life - in short, the cure appears far worse than the disease. This reminds me of those cures from the Dark Ages, when the patient would die if treated, but had better odds of getting well if left alone. Scared of the doctor? Prefer to stay out of the hospital? Me too.

On this site, I try to tie together complex issues, shine the light on the facts and encourage a rational discussion. You get a little opinion along with that. So let's start with some facts and definitions and see where the analysis takes us.

FOURTH AMENDMENT [U.S. Constitution] - 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Fourth Amendment to the US Constitution - Besides this Wikipedia reference, a great start, I recommend the more legal site FindLaw, which includes the actual text, and the 'Lectric Law Library's Legal Lexicon (no kidding). When it comes to searching and monitoring citizens and their things, the authors of the Constitution had very recent examples of government run amok, and put their antidote to government abuse of power down in writing. All of the argument about what the government can and can't do in monitoring US citizens starts here.

The oath or affirmation of office of the President of the United States was established in the United States Constitution and is mandatory for a President upon beginning a term of office. The wording is prescribed by the Constitution (Article II, Section 1, Clause 8), as follows:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Oath of Office of the President of the United States

Again, back to the Constitution, this time, Article II, Sec. 1, Clause 8, on what we expect from our president. As far as I'm concerned, this oath should be mounted on the president's bathroom wall over the toilet, next to the bed so it's the first thing the president sees in the morning and the last thing the president sees at night, and mounted permanently under glass at the president's desk in the Oval Office so it's staring at the president all day. Hell, let's make it a law to tattoo it on the president's belly, if we have to. This is the whole point - this is why we elect a president and put him/her in office; it's a solemn oath sworn on the Bible, a promise to the American people. We're in charge, we just let the president run things for a term, according to the rules we all agreed upon. The president should be able to close his/her eyes and see the Constitution - he/she swore an oath, for Pete's Sake!

OK, that feels better to let it all out. Maybe I'm just naive and I don't understand power, maybe that's it. Here's a little excerpt of a Wikipedia article about the Office of Vice President - an oath that guides someone who clearly does understand power ... a little too much, I'm afraid...

Unlike the president, the Constitution does not specify an oath of office for the vice president. Several variants of the oath have been used since 1789; the current form, which is also recited by Senators, Representatives and other government officers, has been used since 1884:
"I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter." Oath of Office of Vice President, Senators, Representatives, and Other Government Officers

Whoops! There it is again - the Constitution - every time you turn around, there we are, the people expecting our elected officials and representatives in government to swear an oath to "Support and defend the Constitution of the United States". But too many US citizens, wrapped up in their busy lives, seem to forget what that oath means. All those who feel that our VP Dick Cheney is bearing "true faith and allegiance to the same" please raise your hands...

I thought so. Anyway, this is how I see it. The Constitution rules...unambiguously.

But then we hear from our leaders that we're under attack, or at least, we were that one terrible day, who can forget 9/11? (queue Rudy Guiliani)..I can't, never will, and I hate that. But now, we also hear that our "way of life" is under constant attack, we're told to be afraid...many refer to a Global War on Terror or GWOT.

Now I'm no weak-kneed Willie, no shrinking violet, but I do have a pretty good BS detector. Even I can tell that this whole "We're at war so normal rules don't apply" is a load of crap - it's just so convenient, especially when it's used by power-hungry imperialists to justify suspending allegiance to the Constitution! And so as a nation, we've actually come to this .....

Foreign Intelligence Surveillance Act (FISA) - besides this Wikipedia reference, which is very comprehensive, I encourage you to check out this link on FISA at the electronic Privacy Information Center (EPIC). This law was originally passed to curb abuses by our government back in the 1970s. And it's been amended a few times recently, to update it to accommodate the internet, but also to loosen up the reins of government. But it turns out, it doesn't really matter, because many in this administration don't think they have to follow it anyway! Which leads us to the nut of the issue, at least as far as it concerns the telecom policy wonks among us.

Telecommunications Immunity - in a nutshell, this provision in the FISA bill rewrite has become a bone of contention and a focal point for the debate on the bill. The provision in the Senate Intelligence Committee version of the FISA bill makes telecom companies that cooperated with warrantless administration requests for phone taps and customer data retroactively immune from prosecution (they are currently under threat by multiple lawsuits for that activity). The House version of the rewrite does not include an Immunity provision, nor does the Senate Judiciary Committee version. For more on this topic, please see these recent posts on MetroNetIQ ...
Nov 19: A Wicked Wind Blows Through the Senate, The Shankill Butchers Ride Tonight
Nov 12: Rule of Law v. Rule of Da Man - I vote for Rule of Law
Oct 31: What Would Woodward and Bernstein Do?
Oct 30: Tangled Webs, Wicked Ways
Oct 29: Laura Scher Kicks Some Assets
Oct 29: A Long, Not So Gentle Backslide: Ersatz Oversight
Oct 25: The Road to 1984, paved with good intentions
Oct 23: Getting More Interesting
Oct 22: Where There's Smoke ... Part V Summing it Up
Oct 21: Where There's Smoke ... Part IV How Close is Too Close?

I really think that history will show this episode as a bigger deal than we are giving it credit for today. The current events this week were dramatic.

Current Events

12/17

I'm no fan of one of our most senior Democrats, Sen. Harry Reid. And I'm getting less and less so each day. I have to admit, I'm dumbfounded how a guy like this got into such a high seat of power in the first place, but we seem to be getting better and better at electing worse and worse leaders here in the US. Something is terribly amiss, if we only look to Sen. Reid for evidence. He's a bundle of contradictions, apparently compromised in some way, and about as uninspiring a leader as you could find. Unless, that is, you stand him up against the current president and the current speaker of the house, when he starts to look about par for the course...

In this telecom amnesty issue, Reid has seemed more Republican than Democratic, and he's the freakin' Senate Majority Leader!! Still, I consider this a note of progress, when he suggested that all the senators should have access to the full information so that they can vote with their eyes open. What a thought. See Senator Reid seeks More Information for a warm-up to the dramatic events of this week.

The bill was brought to the floor (over the objections and hold of Sen. Dodd, a fellow Dem, BTW), debated and a vote of cloture was approved by a wide margin, which is a means of stopping a filibuster by limiting the allowed time for debate (approved by many Dems as well!). But in the end, the serious intent of opponents, principally Sen. Dodd, with strong support from Sens. Feingold and Kennedy, threatened a long fight, and with the holidays looming and a desire to get other bills passed, Sen. Reid folded and postponed action on the bill until January (see
Huffington Post: Surveillance Bill Delayed Until 2008).

The YouTube clip below provides a good summary, which may be helpful at this point to put all the details in context.

Even better, listen to this recap straight from the horses mouth, in this clip of Senator Dodd on Countdown from Dec 17.

12/18

OK, now the serious analysis of what went down at the Senate on Monday starts to unfold. First, spend some time reading this review on Salon by Glen Greenwald - Anatomy and significance of Monday's FISA victory. He's an astute attorney and passionate about the Constitution. He provides a comprehensive review and analysis, but check especially the comments - several touch on the potential threat of unchecked surveillance in the age of the internet, when the actual technology exists to enable some of the worst of the 1984 nightmare scenarios.

And Glenn Greenwald brings up another aspect of the battle that the Post seems blissfully unaware of, and that is about how the whole notion of one man taking a stand on this issue came to pass. I first asked Dodd in early October on Air America if he would commit to filibuster retroactive telecom immunity, and he said at the time "Well, may have to do that....Hope it doesn't come to that."

But it did. And on October 18, when the deal that Jello Jay Rockefeller and Dick Cheney made to give the telecoms immunity in exchange for...well, virtually nothing... was announced, an outcry rose up on the liberal blogs. Jane Hamsher in Why Did Reid Pull the Telecom Bill?

I highly recommend this post - It's hard to beat this kind of in-depth analysis, and the whole process makes more sense when you read this insider account. This really was a case of liberal bloggers using the internet to first stimulate Senator Dodd to take a filibuster strategy seriously (he was on the edge anyway) and then putting pressure on the Senate leadership to raise the political risk of going along with the White House. For a change, we were actually participating in the process, rather than reading about a defeat ex post facto. This is an example of power from the edges coming into a traditional standoff and winning, at least for a day.

12/19

With a little time to digest this drama, the NY Times weighs in with an editorial, Bad Bill Now, Bad Bill Later that is well worth reading.

And for a look ahead, try this feature on the role of Sen. Russ Feingold and his view of what lays ahead. Either Feingold or Dodd would get my vote for Majority Leader.

In summary, this is one of my longest posts, but I feel it's important to make things as clear as I can.

The potential of the internet and everything I write about on this website is inevitably tied to its widespread acceptance as a safe and compelling technology. We need the assurance that only the government can give us: new technology, from broadband to video surveillance to RFID tracking devices, will not be used against the population.

Otherwise, who needs it? I see it as a negative if technological progress brings political regression. The events chronicled on this website today and in other recent posts raise the very real risk that the current administration and current industry leaders do not respect the awesome power of the internet and new digital technologies. I can only hope that the masses will continue to use this tool to communicate with each other, to mobilize their resources, to clarify and hone their message, and to overwhelm our elected officials with feedback that says in a very loud voice, "Respect the Constitution, or Suffer the Consequences." Maybe then they'll finally get the message that this is a democratic republic, not a monarchy or dictatorship. The popular will must prevail.

With a new year about to begin, this is an especially appropriate message for our leaders to hear. Let's hope they buy a clue and get focused on what's important, and soon.

Posted on December 19, 2007 at 11:05 PM | Comments (0)

Your Government at "Work"

WASHINGTON -- The Federal Communications Commission's monthly meetings are scheduled to start at 9:30 a.m. Under Chairman Kevin J. Martin, the trains don't always run on time, and recently they've come close to veering off the rails.

On Nov. 27, for instance, the FCC was slated to consider controversial proposals dealing with potential new cable TV regulations and increasing women and minority ownership of broadcast stations. Journalists, lobbyists and spectators waited as the five commissioners on the fractious panel wrangled over the issues eight floors above. When they finally showed up for the public session -- nearly 12 hours late -- the few spectators remaining had front-row seats for the sniping and accusations that are threatening to become hallmarks of FCC meetings.

Critics usually blame Martin, a soft-spoken Republican known as a political tactician who has accomplished the rare feat of being criticized by all four of his fellow commissioners. He is also facing a congressional inquiry into the FCC's procedures and allegations of flawed research studies, suppressing data, ignoring public input and holding hearings with minimal notice. Criticism of the FCC's chairman is widely aired

Sometimes when I read articles like this I sigh and wonder, "Must we really wait another year for another administration to finally get the leadership we so desperately need, right now?" and then I skip to "Where the hell do they find these people?"

This recent, depressing article in the LA Times details the mercurial disrespectful style of FCC Charmian Kevin Martin. Unfortunately, it starts off badly, and goes downhill from there.

I was reminded of my time in 1995-1996 spent as a regulatory lobbyist for CSW, a large electric utility holding company headquartered in Dallas. I was fresh out of business school and a stint as a research director at the Texas Senate. It was exciting to be learning all about the electric industry. My job was to provide "interface" work at the Texas Public Utility Commission - I was the eyes and ears of the corporation at the regulatory commission in Austin.

I'd cover events like public meetings and administrative hearings and report on them, and meet and work with staff to work through detailed issues and provide the utility's viewpoint. It was a great education and an interesting job for the 20 months I did it, before I was promoted out of that role.

But those opening paragraphs describing multiple hour-long waits in the FCC's public meeting room while the commissioners wrangled over issues in private brought back some of the most painful memories I had from 15 years ago, covering the long public meetings of the PUCT. As in painful on my back and rear side. I can still remember those chairs.

I guess my point is that sometimes government can be a real pain in the ass.

Posted on December 12, 2007 at 05:06 AM | Comments (0)

A Wicked Wind Blows Through the Senate, The Shankill Butchers Ride Tonight

Shankill Butchers - Decemberists Live 10/27/06

"At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.

I hope I am over wary; but if I am not, there is, even now, something of ill-omen, amongst us. I mean the increasing disregard for law which pervades the country; the growing disposition to substitute the wild and furious passions, in lieu of the sober judgment of Courts; and the worse than savage mobs, for the executive ministers of justice. This disposition is awfully fearful in any community; and that it now exists in ours, though grating to our feelings to admit, it would be a violation of truth, and an insult to our intelligence, to deny. " -- The Perpetuation of Our Political Institutions, A. Lincoln, at his Address Before the Young Men's Lyceum of Springfield, Illinois on January 27, 1838

I think that if Abraham Lincoln were a young (28 yrs old) lawyer today, he would be as likely to write a blog as to give a speech. In the particular speech that helped kick start his political career and make his reputation, young Abe decried the angry mobs that had strung up and burned a mulatto man for nothing more than his racial identity. He decries in this speech the angry mood of the country that preceded the Civil War, and calls on his countrymen to redouble their fealty to the spirit of the founding fathers, to the laws and system of government that they created to ensure justice. He warns that the institutions will not stand up on their own, but must be supported in times of peace as well as in times of strife.

Today, if he were around, young Abe would highlight another kind of mob spirit that is animating our nation and causing it to support actions by our political leadership that go well beyond the boundaries of the law, as they manipulate the system to evade the system of checks and balances designed by our forefathers.

We are a nation that remains, six years after that horrific attack on September 11, 2001, a nation in fear. We live in fear of another attack. We're reminded, in gory detail, by our president and opportunistic politicians that we could be subject to another attack at any moment, and encouraged to trade away our civil liberties in exchange for an opportunity to feel safer. (Over 1 Million Hits in Google search for "Bush+fear mongering" - or If you prefer the evidence in video form, see this search of You Tube for "Bush+fear mongering" - 58 hits, though some may be repetitive).

The measures this administration and its supporters would take cannot make us any safer, but they do offer to make us feel safer, in exchange for long-lasting political changes that serve their agenda. In response, we should be demanding hard evidence, we should demand to know: "How do massive violations of our laws to survey all data communications make us any safer?" What's the track record to date? It's been six years, after all.

We're fed the impression that we're being protected, but in fact, that's not possible by such means. In fact, our civil liberties are being traded away for a pittance in an historic power grab. We're buying a temporary feeling of security, in exchange for handing over our most precious asset: the system of laws, checks, and balances that are the very foundation of our government and our stable civil society.

This issue is coming to a head in the Senate, and I'm concerned.

In the Senate, two competing versions of the FISA Act have passed out of Senate committees. One, passed last month by the Intelligence Committee, saw Democratic Senators Schumer and Feinstein vote with the Republicans in favor of a version that contains immunity for telecom firms that cooperated with requests from the executive branch to break laws and provide surveillance of domestic data traffic without warrants.

The other, passed by the Judiciary Committee, voted out a version that did not include immunity, but also did not expressly condemn immunity, in effect punting to the Senate floor resolution of the issue of whether large telecom firms should be left subject to the consequences of their illegal activity.

In contrast, the House passed a version that expressly excluded such immunity. This article in Techdirt and its associated links help explain the confusing state of affairs in Congress.

I am not confident in our Democratic leadership, I'm afraid to say. I fear an ill wind blowing through the Senate, which could see this issue traded away in some high-minded compromise. I think it's important to take this stand, because the legal fight that would ensue when telecom companies are called to task for their behavior has the potential to uncover law-breaking by this administration as well, and that is the bigger fish. We have an opportunity to educate our nation on the risks we are taking, and turn the tide on the steady erosion of our civil liberties.

Similar voices echo Abe Lincoln, calling out today, warn us to beware. Consider this article and video clip, where a whistle-blower visited Washington two weeks ago to tell what he knows about illegal collusion between AT&T and the federal government.

Those documents detail how AT&T diverted portions of fiber optic internet cables, included powerful snooping hardware and a fat fiber connection out of the room.

The EFF filed those documents under seal with the court as part of their ongoing class action suit against AT&T. Wired News independently acquired and published the documents in May 2006.

Even prior to the Senate Intelligence committee's assent to the president's push for immunity for the telecoms, Klein believed that Congress was helping the administration cover up the spying, according to an interview with Wired News in May.

[KLEIN]: I've called and sent letters to senators and Congress members. They haven't called back. I don't think they want to pursue it. They want to talk about this behind closed doors. These days I am angry at Congress for helping them keep it secret. They could hold hearings and subpoena people and give them immunity. Right now there are people who could come forward and say what they know, but they need immunity. That's the bottleneck. I don't see a resolution coming from this Congress. It's a conspiracy against the American people.

But on Wednesday, Klein had a full D.C. day -- meeting with senators and Congressional staffers and doing rounds of interviews with the press, who have largely ignored the soft-spoken retiree.

Klein's stated intent for the visit is to stop Congress from giving immunity to well-connected telecom firms that the administration and its platoon of consent manufacturers say are being treated unfairly. http://blog.wired.com/27bstroke6/2007/11/att-whistle-blo.html

Here's Klein in person, in a clip put up on Sen. Dodd's website - watch it.

Having watched this video, I urge you to pause for a moment and then read Lincoln's speech in its entirety, below.

Lyceum Address
As one of Abraham Lincoln's earliest published speeches, this address has been much scrutinized and debated by historians, who see broad implications for his later public policies. Lincoln was 28 years old at the time he gave this speech and had recently moved from a rough pioneer village to Springfield, Illinois.

William Herndon, Lincoln's law partner, describes the event this way: "we had a society in Springfield, which contained and commanded all the culture and talent of the place. Unlike the other one its meetings were public, and reflected great credit on the community ... The speech was brought out by the burning in St. Louis a few weeks before, by a mob, of a negro. Lincoln took this incident as a sort of text for his remarks ... The address was published in the Sangamon Journal and created for the young orator a reputation which soon extended beyond the limits of the locality in which he lived."

The Perpetuation of Our Political Institutions:
Address Before the Young Men's Lyceum of Springfield, Illinois
January 27, 1838

As a subject for the remarks of the evening, the perpetuation of our political institutions, is selected.

In the great journal of things happening under the sun, we, the American People, find our account running, under date of the nineteenth century of the Christian era.--We find ourselves in the peaceful possession, of the fairest portion of the earth, as regards extent of territory, fertility of soil, and salubrity of climate. We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us. We, when mounting the stage of existence, found ourselves the legal inheritors of these fundamental blessings. We toiled not in the acquirement or establishment of them--they are a legacy bequeathed us, by a once hardy, brave, and patriotic, but now lamented and departed race of ancestors. Their's was the task (and nobly they performed it) to possess themselves, and through themselves, us, of this goodly land; and to uprear upon its hills and its valleys, a political edifice of liberty and equal rights; 'tis ours only, to transmit these, the former, unprofaned by the foot of an invader; the latter, undecayed by the lapse of time and untorn by usurpation, to the latest generation that fate shall permit the world to know. This task of gratitude to our fathers, justice to ourselves, duty to posterity, and love for our species in general, all imperatively require us faithfully to perform.

How then shall we perform it?--At what point shall we expect the approach of danger? By what means shall we fortify against it?-- Shall we expect some transatlantic military giant, to step the Ocean, and crush us at a blow? Never!--All the armies of Europe, Asia and Africa combined, with all the treasure of the earth (our own excepted) in their military chest; with a Buonaparte for a commander, could not by force, take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years.

At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.

I hope I am over wary; but if I am not, there is, even now, something of ill-omen, amongst us. I mean the increasing disregard for law which pervades the country; the growing disposition to substitute the wild and furious passions, in lieu of the sober judgment of Courts; and the worse than savage mobs, for the executive ministers of justice. This disposition is awfully fearful in any community; and that it now exists in ours, though grating to our feelings to admit, it would be a violation of truth, and an insult to our intelligence, to deny. Accounts of outrages committed by mobs, form the every-day news of the times. They have pervaded the country, from New England to Louisiana;--they are neither peculiar to the eternal snows of the former, nor the burning suns of the latter;--they are not the creature of climate-- neither are they confined to the slave-holding, or the non-slave- holding States. Alike, they spring up among the pleasure hunting masters of Southern slaves, and the order loving citizens of the land of steady habits.--Whatever, then, their cause may be, it is common to the whole country.

It would be tedious, as well as useless, to recount the horrors of all of them. Those happening in the State of Mississippi, and at St. Louis, are, perhaps, the most dangerous in example and revolting to humanity. In the Mississippi case, they first commenced by hanging the regular gamblers; a set of men, certainly not following for a livelihood, a very useful, or very honest occupation; but one which, so far from being forbidden by the laws, was actually licensed by an act of the Legislature, passed but a single year before. Next, negroes, suspected of conspiring to raise an insurrection, were caught up and hanged in all parts of the State: then, white men, supposed to be leagued with the negroes; and finally, strangers, from neighboring States, going thither on business, were, in many instances subjected to the same fate. Thus went on this process of hanging, from gamblers to negroes, from negroes to white citizens, and from these to strangers; till, dead men were seen literally dangling from the boughs of trees upon every road side; and in numbers almost sufficient, to rival the native Spanish moss of the country, as a drapery of the forest.

Turn, then, to that horror-striking scene at St. Louis. A single victim was only sacrificed there. His story is very short; and is, perhaps, the most highly tragic, if anything of its length, that has ever been witnessed in real life. A mulatto man, by the name of McIntosh, was seized in the street, dragged to the suburbs of the city, chained to a tree, and actually burned to death; and all within a single hour from the time he had been a freeman, attending to his own business, and at peace with the world.

Such are the effects of mob law; and such as the scenes, becoming more and more frequent in this land so lately famed for love of law and order; and the stories of which, have even now grown too familiar, to attract any thing more, than an idle remark.

But you are, perhaps, ready to ask, "What has this to do with the perpetuation of our political institutions?" I answer, it has much to do with it. Its direct consequences are, comparatively speaking, but a small evil; and much of its danger consists, in the proneness of our minds, to regard its direct, as its only consequences. Abstractly considered, the hanging of the gamblers at Vicksburg, was of but little consequence. They constitute a portion of population, that is worse than useless in any community; and their death, if no pernicious example be set by it, is never matter of reasonable regret with any one. If they were annually swept, from the stage of existence, by the plague or small pox, honest men would, perhaps, be much profited, by the operation.--Similar too, is the correct reasoning, in regard to the burning of the negro at St. Louis. He had forfeited his life, by the perpetuation of an outrageous murder, upon one of the most worthy and respectable citizens of the city; and had not he died as he did, he must have died by the sentence of the law, in a very short time afterwards. As to him alone, it was as well the way it was, as it could otherwise have been.--But the example in either case, was fearful.--When men take it in their heads to day, to hang gamblers, or burn murderers, they should recollect, that, in the confusion usually attending such transactions, they will be as likely to hang or burn some one who is neither a gambler nor a murderer as one who is; and that, acting upon the example they set, the mob of to-morrow, may, and probably will, hang or burn some of them by the very same mistake. And not only so; the innocent, those who have ever set their faces against violations of law in every shape, alike with the guilty, fall victims to the ravages of mob law; and thus it goes on, step by step, till all the walls erected for the defense of the persons and property of individuals, are trodden down, and disregarded. But all this even, is not the full extent of the evil.--By such examples, by instances of the perpetrators of such acts going unpunished, the lawless in spirit, are encouraged to become lawless in practice; and having been used to no restraint, but dread of punishment, they thus become, absolutely unrestrained.--Having ever regarded Government as their deadliest bane, they make a jubilee of the suspension of its operations; and pray for nothing so much, as its total annihilation. While, on the other hand, good men, men who love tranquility, who desire to abide by the laws, and enjoy their benefits, who would gladly spill their blood in the defense of their country; seeing their property destroyed; their families insulted, and their lives endangered; their persons injured; and seeing nothing in prospect that forebodes a change for the better; become tired of, and disgusted with, a Government that offers them no protection; and are not much averse to a change in which they imagine they have nothing to lose. Thus, then, by the operation of this mobocractic spirit, which all must admit, is now abroad in the land, the strongest bulwark of any Government, and particularly of those constituted like ours, may effectually be broken down and destroyed--I mean the attachment of the People. Whenever this effect shall be produced among us; whenever the vicious portion of population shall be permitted to gather in bands of hundreds and thousands, and burn churches, ravage and rob provision-stores, throw printing presses into rivers, shoot editors, and hang and burn obnoxious persons at pleasure, and with impunity; depend on it, this Government cannot last. By such things, the feelings of the best citizens will become more or less alienated from it; and thus it will be left without friends, or with too few, and those few too weak, to make their friendship effectual. At such a time and under such circumstances, men of sufficient talent and ambition will not be wanting to seize the opportunity, strike the blow, and overturn that fair fabric, which for the last half century, has been the fondest hope, of the lovers of freedom, throughout the world.

I know the American People are much attached to their Government;--I know they would suffer much for its sake;--I know they would endure evils long and patiently, before they would ever think of exchanging it for another. Yet, notwithstanding all this, if the laws be continually despised and disregarded, if their rights to be secure in their persons and property, are held by no better tenure than the caprice of a mob, the alienation of their affections from the Government is the natural consequence; and to that, sooner or later, it must come.

Here then, is one point at which danger may be expected.

The question recurs, "how shall we fortify against it?" The answer is simple. Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor;--let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children's liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap--let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs;--let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.

While ever a state of feeling, such as this, shall universally, or even, very generally prevail throughout the nation, vain will be every effort, and fruitless every attempt, to subvert our national freedom.

When I so pressingly urge a strict observance of all the laws, let me not be understood as saying there are no bad laws, nor that grievances may not arise, for the redress of which, no legal provisions have been made.--I mean to say no such thing. But I do mean to say, that, although bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed. So also in unprovided cases. If such arise, let proper legal provisions be made for them with the least possible delay; but, till then, let them, if not too intolerable, be borne with.

There is no grievance that is a fit object of redress by mob law. In any case that arises, as for instance, the promulgation of abolitionism, one of two positions is necessarily true; that is, the thing is right within itself, and therefore deserves the protection of all law and all good citizens; or, it is wrong, and therefore proper to be prohibited by legal enactments; and in neither case, is the interposition of mob law, either necessary, justifiable, or excusable.

But, it may be asked, why suppose danger to our political institutions? Have we not preserved them for more than fifty years? And why may we not for fifty times as long?

We hope there is no sufficient reason. We hope all dangers may be overcome; but to conclude that no danger may ever arise, would itself be extremely dangerous. There are now, and will hereafter be, many causes, dangerous in their tendency, which have not existed heretofore; and which are not too insignificant to merit attention. That our government should have been maintained in its original form from its establishment until now, is not much to be wondered at. It had many props to support it through that period, which now are decayed, and crumbled away. Through that period, it was felt by all, to be an undecided experiment; now, it is understood to be a successful one.--Then, all that sought celebrity and fame, and distinction, expected to find them in the success of that experiment. Their all was staked upon it:-- their destiny was inseparably linked with it. Their ambition aspired to display before an admiring world, a practical demonstration of the truth of a proposition, which had hitherto been considered, at best no better, than problematical; namely, the capability of a people to govern themselves. If they succeeded, they were to be immortalized; their names were to be transferred to counties and cities, and rivers and mountains; and to be revered and sung, and toasted through all time. If they failed, they were to be called knaves and fools, and fanatics for a fleeting hour; then to sink and be forgotten. They succeeded. The experiment is successful; and thousands have won their deathless names in making it so. But the game is caught; and I believe it is true, that with the catching, end the pleasures of the chase. This field of glory is harvested, and the crop is already appropriated. But new reapers will arise, and they, too, will seek a field. It is to deny, what the history of the world tells us is true, to suppose that men of ambition and talents will not continue to spring up amongst us. And, when they do, they will as naturally seek the gratification of their ruling passion, as others have so done before them. The question then, is, can that gratification be found in supporting and maintaining an edifice that has been erected by others? Most certainly it cannot. Many great and good men sufficiently qualified for any task they should undertake, may ever be found, whose ambition would inspire to nothing beyond a seat in Congress, a gubernatorial or a presidential chair; but such belong not to the family of the lion, or the tribe of the eagle. What! think you these places would satisfy an Alexander, a Caesar, or a Napoleon?--Never! Towering genius distains a beaten path. It seeks regions hitherto unexplored.--It sees no distinction in adding story to story, upon the monuments of fame, erected to the memory of others. It denies that it is glory enough to serve under any chief. It scorns to tread in the footsteps of any predecessor, however illustrious. It thirsts and burns for distinction; and, if possible, it will have it, whether at the expense of emancipating slaves, or enslaving freemen. Is it unreasonable then to expect, that some man possessed of the loftiest genius, coupled with ambition sufficient to push it to its utmost stretch, will at some time, spring up among us? And when such a one does, it will require the people to be united with each other, attached to the government and laws, and generally intelligent, to successfully frustrate his designs.

Distinction will be his paramount object, and although he would as willingly, perhaps more so, acquire it by doing good as harm; yet, that opportunity being past, and nothing left to be done in the way of building up, he would set boldly to the task of pulling down.

Here, then, is a probable case, highly dangerous, and such a one as could not have well existed heretofore.

Another reason which once was; but which, to the same extent, is now no more, has done much in maintaining our institutions thus far. I mean the powerful influence which the interesting scenes of the revolution had upon the passions of the people as distinguished from their judgment. By this influence, the jealousy, envy, and avarice, incident to our nature, and so common to a state of peace, prosperity, and conscious strength, were, for the time, in a great measure smothered and rendered inactive; while the deep-rooted principles of hate, and the powerful motive of revenge, instead of being turned against each other, were directed exclusively against the British nation. And thus, from the force of circumstances, the basest principles of our nature, were either made to lie dormant, or to become the active agents in the advancement of the noblest cause--that of establishing and maintaining civil and religious liberty.

But this state of feeling must fade, is fading, has faded, with the circumstances that produced it.

I do not mean to say, that the scenes of the revolution are now or ever will be entirely forgotten; but that like every thing else, they must fade upon the memory of the world, and grow more and more dim by the lapse of time. In history, we hope, they will be read of, and recounted, so long as the bible shall be read;-- but even granting that they will, their influence cannot be what it heretofore has been. Even then, they cannot be so universally known, nor so vividly felt, as they were by the generation just gone to rest. At the close of that struggle, nearly every adult male had been a participator in some of its scenes. The consequence was, that of those scenes, in the form of a husband, a father, a son or brother, a living history was to be found in every family-- a history bearing the indubitable testimonies of its own authenticity, in the limbs mangled, in the scars of wounds received, in the midst of the very scenes related--a history, too, that could be read and understood alike by all, the wise and the ignorant, the learned and the unlearned.--But those histories are gone. They can be read no more forever. They were a fortress of strength; but, what invading foeman could never do, the silent artillery of time has done; the leveling of its walls. They are gone.--They were a forest of giant oaks; but the all-resistless hurricane has swept over them, and left only, here and there, a lonely trunk, despoiled of its verdure, shorn of its foliage; unshading and unshaded, to murmur in a few gentle breezes, and to combat with its mutilated limbs, a few more ruder storms, then to sink, and be no more.

They were the pillars of the temple of liberty; and now, that they have crumbled away, that temple must fall, unless we, their descendants, supply their places with other pillars, hewn from the solid quarry of sober reason. Passion has helped us; but can do so no more. It will in future be our enemy. Reason, cold, calculating, unimpassioned reason, must furnish all the materials for our future support and defence.--Let those materials be moulded into general intelligence, sound morality, and in particular, a reverence for the constitution and laws: and, that we improved to the last; that we remained free to the last; that we revered his name to the last; that, during his long sleep, we permitted no hostile foot to pass over or desecrate his resting place; shall be that which to learn the last trump shall awaken our WASHINGTON.

Upon these let the proud fabric of freedom rest, as the rock of its basis; and as truly as has been said of the only greater institution, "the gates of hell shall not prevail against it."

Source: Collected Works of Abraham Lincoln, edited by Roy P. Basler.

The Perpetuation of Our Political Institutions, A. Lincoln, at his Address Before the Young Men's Lyceum of Springfield, Illinois on January 27, 1838

Isn't it time we woke up and recognized the path we're on? We know where the path took Lincoln's nation a short 12 years after he made this speech, which propelled him to lead our nation during its most trying time. Can we not learn from history and avoid repeating the same mistakes? Will we let passionate anger and fear outvote our brains in our national debate today, in the same way that we let passionate anger and fear hold sway 170 years ago?

Posted on November 19, 2007 at 08:09 AM | Comments (0)

Rule of Law v. Rule of Da Man - I vote for Rule of Law

I am starting to worry that nobody in charge in Washington, D.C., is looking out for our long-term interests when it comes to being protected from unknown powers using the Internet and all the information out on the Web to spy on us. Have we become the Soviet Union? Have we forgotten what a police state is? Have we become so driven by fear that we are ready to check it all in because of those punks/goons at Al Queda? Can this really be happening? I think the Internet makes this issue of illegal domestic surveillance a much more serious issue, one we will all be focusing on at some point, I hope before it's not too late.

If Congress retroactively grants immunity, it will be one more blow against the respect of the rule of law. Not a fatal blow to be sure. Our Constitution and system of government have weathered such storms in the past. But a severe blow nonetheless. Congress will send a signal to the corporations that control the vital services on which we all depend, and to which we must entrust our private information, that they may safely collude with the Executive branch to break the law. Because a compliant Congress and a strong Executive will make it all right later. Yet these are the very companies into which we must most carefully inculcate the respect for the rule of law, because they have access to our most personal information and we have no way of discovering when our rights are violated.

Congress will also send a message to us. We will learn that our rights must yield to the interests of the President and the Powerful when they work together in the name of national security. That we must accustom ourselves to such violations in the "post-9/11 world." And while powerful Democrats, brought within the inner circle by the crumbs of information the Administration grudgingly shares, may not go as far as Rep. Lamar Smith in saying we should thank the telephone companies for preferring the illegal demands of the President to the rule of law, we shall be taught to sympathize with them rather than hold them accountable for their choices. And we shall know that, when faced with similar choices in the future, they and every other industry will chose to honor the demands of the Executive rather than honor the demands of the rule of law.

Such a message undermines our national security and our way of life far more powerfully than any Al-Qeda attack. When Chris Dodd frames this as a fight to restore the Constitution, that's not overbroad campaign rhetoric. It is the literal truth. For without respect for the rule of law, the Constitution has no meaning or purpose save as a tool for demagogues who revel in its power while ignoring its intent. And when Dodd calls on Democrats to remember that the public elected them to stop these abuses of our rights, to reign in lawbreakers rather than "thank" them, he also tells the truth. I can only hope Harry Reid and his colleagues on both sides of the aisle pay attention. Harold Feld: So Much For All That "We Are A Nation of Laws" Stuff . . . .

Harold Feld, an attorney with the Media Access Project, provides the best coverage and argument yet for why we should all be very, very concerned about this telecom immunity issue.

He has the background to know:

Harold Feld, MAP's Senior Vice President, joined MAP in August 1999 after practicing communications, Internet, and energy law at Covington & Burling. Mr. Feld served as co-chair of the Federal Communications Bar Association's Online Committee, and has written numerous articles on Internet law and communications policy for trade publications and legal journals. Mr. Feld won the 2000 Burton Award for excellence in writing by a nonacademic. Mr. Feld graduated magna cum laude from Princeton University in 1989, and magna cum laude from Boston University Law School in 1993. Mr. Feld clerked for the Hon. John M. Ferren of the District of Columbia Court of Appeals. Media Access Project

In other coverage of potential Telecom Immunity this week, there was this exchange of Letters to the Editor at the New York Times, worth a look.

Posted on November 12, 2007 at 08:34 PM | Comments (0)

On Trust and Betrayal, Indicators of a Competitive Market

Here's a more Qualitative Assessment of a Competitive Market, one that the FCC may want to take note of and add to its repertoire of means to assess competition. Let me say before you read on that while I acknowledge upfront that this is very trivial, I'm sharing this with you my readers because it captures so well these issues of trust and betrayal in commercial relationships and how they differ based on the level of competition in the particular market.

I had one of those Moments of Truth this morning that sheds light on the nature of market success and failure. It was a little thing, in the Big Picture scheme of things, but after all, it's those little things that can make or break a business in a competitive service industry. I have had a favorite coffee shop that has free Wi Fi and really comfortable armchairs, a parking lot and a prime location in downtown Austin. I've been traveling some, so I haven't been there in a while, but it's been one of my favorite locations whenever I have a business meeting, morning or afternoon, for the reasons cited above. I routinely met people there and went there on my own.

On my many visits, I gathered stamps on a Customer Loyalty program card, you know those "Buy 10, Get the 11th coffee free" cards? I had three working with multiple stamps on each, and they always would consolidate them into a free coffee and a new partially stamped card whenever I managed to remember to bring them in to redeem them. Imagine my surprise when I made the effort to remember to bring the cards this morning, intending to sit for a couple of hours before a downtown lunch appointment, buy a pound of coffee, and enjoy "my" easy chair, when the young clerk told me "Oh, we don't take those anymore."

I'd understand discontinuing the program, that's any business owner's prerogative, but I was flabbergasted when I was told that they would not offer me a coffee in exchange for the 17 stamps I had on the three cards...How much can a coffee cost? What's the value of a customer?

Those 17 stamps represented between $60 and $80 I had spent on 17 trips, all to that one store. And those stamps represented an implied contract between the owner and me, the regular customer, that I would get a free coffee. It was like a slap in the face...How cavalier to treat a regular customer, to boot! Business must be very good, too good, I'm thinking, if a business manager can take such a stand. I'm so pissed off because I trusted them to honor their commitment, every time I made sure to get that stupid card checked, every time I kept track of it in some desk drawer...I made an investment, albeit a minor one, in this particular coffee shop. They repaid my investment in them as a regular customer by betraying my trust not when they discontinued the program, but when they refused to redeem my cards under the old program. Bad, bad Mojo.

I wrote an extended Comment on the official comment card and now I'm repaying the favor by telling the world what a shitty deal the coffee shop gave me...oh, by the way, the cafe in question is Seattle's Best Worst .

The money line on the comment card I filled out was that when a business reneges on an oral contract, no matter how small, they're betraying a trust and in effect telling me, "We don't value or even need your business." My only response can be that I no longer value them as a supplier and that I'll take my business elsewhere. Or else I guess I could just shrug my shoulders, pile that one more indignity along with all the others in the back seat, and soldier on. Well, I'm tired of taking it on the chin and smiling. So, I'll take this little opportunity to bitch in public, to take as much business away from them as I can along the way, just to make my point. Maybe this will have little or no effect, but I don't care, it's cathartic just to write this post.

They say a positive experience generates far fewer positive referrals than a negative experience generates negative referrals. I'm living proof, I guess. It's been six hours since this negative event, and I'm still pissed. They deserve whatever bad karma can come their way after such a bone-headed customer service move. I don't do this often, by the way.

I left Seattle's Best and went happily on to Austin Java, a local shop. I'll continue to explore new haunts and avoid not just that one, but all of their brethren. Seattle's Best has just been moved to the bottom of my list - indeed, this sours me on all chains, at least for the time being. I'm shopping local from now on, at least when it comes to coffee and wi fi - we have many options in this field in Austin.

I believe it's a business maxim that Trust is hard to win, but easy to lose. All businesses should treat their regular customers with extra care, because they give them more revenue for less cost than any other. They're the most valuable, if they stop to think about it. Where businesses have to go out of their way and spend to market and sell to bring in new customers, the regulars come without any marketing, and bring in others with their recommendations and as company. All they have to do is respect them and treat them well and they keep on coming in.

For that reason, competitive businesses should respect all their customers and treat them as if they really value their business, in hopes that they become regulars. At least, that's how I understand service businesses in particular to work. In retail business, shouldn't repeat business and referrals be a goal to strive for?

So it's an indicator of a competitive market when a customer that is treated poorly as I was has an option to react the way I did. In a duopoly market, I'd have far fewer options - I'd be as likely to suck it up, take it, etc...what would I have done were I six months into a 24-month contract with this cafe owner? What would have been my options if this were one of the two franchised coffee shop chains in town? You get the picture...

One risk of large chains is just this sort of impersonality. The risk is that individual links in the chain begin to act as if the corporate head were the customer, rather than the person across the counter. They act as if every penny were a line item in a business process flow chart, to be trimmed, so that the next quarter is better than the last. They act as if a market is a big homogeneous blob, instead of a series of individual win or lose business transactions - those Moments of Truth - with real-live flesh-and-blood customers and clients. In short, they forget the "service" in the words "customer service" and act as if they are not in the business of providing a service, but of cutting costs and counting their revenues.

When they lose sight as these folks did today, we count on the market to provide a correction, but sometimes it takes a while for such offenders to feel the heat. The good ones react and correct, we'll see what Seattle's Best does...I'm not holding my breath, but I did give them an option to react by filling out the card. In most of the domestic broadband markets today, there's far less competition than there is in coffee shops. Consequently, there's far less potential for the market to exert a correcting force in those markets. In most cases, there's little chance for the market to work as it should, or could, so I'd wonder by what definition do they describe these markets as "competitive."

Sighhh. This is disappointing. I'll miss my easy chair, Wi Fi, and coffee. But I have new horizons ahead of me... and I'll focus on that. It's sad, a little like losing a friend. This is Tough Love, I guess.

Posted on November 12, 2007 at 03:41 PM | Comments (0)

Playing Roulette with Your Broadband Future

My recurring nightmare ...

A busy casino. Lights flashing, slot machines chinking and whirling in the background. A roar goes up from the crowd around the craps table. I stand next to the roulette table, mesmerized by the spinning wheel. It's so pretty. I'm new to Vegas, but my "trusted adviser" knows the ropes and he turns to me.

Trusted Adviser: Here, hand me all your chips.
Me: Wait, what are you going to do with them?
TA: Don't ask so many questions. Who's the expert here? It's ME who's managing your broadband future, right?
You: But I'm not sure.
TA: Look, this is complicated business, right, and I've been in Vegas for years, right? Do I know my way around here, or what? I introduced you to the Casino Manager, didn't I?
Croupier: Round and round she goes, where she stops, nobody knows.
Me: Yeah, you did. You do seem to know everyone, and you sure seem to know your way around here.
TA: You got that right, I sure do. I've been doing this for a quite a while, in fact, I know the people that built this place. I helped design this wheel. When it comes to telecommunications, I wrote the book.
Me: (watching the wheel go around) It's so pretty - amazing.
TA: Look, they're about to spin again - hand me your chips.
Me: What are you going to do with them?
TA: I'm putting them all on Red. Can't lose. Trust me.
Me: But how do you know where to place the bet?
TA: Look, it's complicated. Don't you worry about that, you just have to trust me. You want broadband, don't you?
Me: You bet I do. I love to surf the Internet, and I do like a discount. But I"m not sure of Red. It seems, well, rather risky.
TA: (snorts). What, you want me to put the stack on Lucky Seven? Red is a safer bet. Remember, only I know how to make your broadband dreams come true. Here, hand me your chips, it's time.
Me: Well, OK, if you say so....

The trusted adviser, smiling, takes my stack of chips and places them all on Red. The croupier gives the wheel a good spin. Around and around it goes, where it stops .... I vaguely remember this scene from a not so distant past, but back then the pile of chips were all on Black. Otherwise, the conversation was the same.

How does this scenario turn out? I don't know about you, but for all of our sakes, I sure hope the wheel stops on Red. And I hope we can trust our Trusted Adviser, because it still seems like a gamble to me.

Whatever, who really knows, right? It's complicated. And besides, what happens in Vegas, stays in Vegas. And isn't it fun, all those blinking lights? Here, have another cocktail. Don't worry, be happy. Time to place your bets! Hurry up!

When we hand over all of our decision making on broadband infrastructure to a few large companies and a federal government with a long history of cozy corporate relations, we're no better than the visitor to Vegas in my nightmare scenario above.

We're hoping betting that the decisions they make on our behalf will bring us the broadband we need. But if we pause for a moment and reflect on the series of outcomes in the past, we realize that the track record in the recent past has not been all that good - they're coasting on a glorious telecommunications history in the twentieth century that is long gone. In fact, when it comes to current decisions on broadband, they're more or less making it up as they go.

For good background on these issues, check out the website Teletruth, which will give you lots more detailed information than you can swallow at one sitting. Take my advice, swallow this medicine in small doses. These guys are passionate and persistent, and understandably impatient. They've built up a body of evidence that tells a story. They thoroughly unwrap the complex wrapper that obscures the truth about the companies and government relationships that are currently driving our broadband future. While I'm not altogether convinced at how effective they will be outside the circles of power, I respect their attempt to bring facts and truth to the broadband debate.

BROADBAND ROLLOUT FAILURES

As we enter the 21st century, the sparkle of our new fiber-optic future suddenly fades to a dull copper tone - the color of the three-quarters of a century old phone network based on copper wiring that is still in use today.

Our fiber-optic future was supposed to be here by now. Starting in the 1980s and continuing throughout the 1990s, the Bells convinced state and federal regulators that if they changed laws to give them more money, they would use these funds to replace the aging copper network - with a fabulous fiber-optic network and wondrous new applications. In fact, by the year 2000, more than half of American homes were supposed to have been upgraded to a glassy future - a future with very high-speed broadband.

Instead, the Bell companies have been able to keep the money in the form of higher prices for service. We estimate that over $120 billion dollars in excess payments have been collected in the name of Broadband.

We also contend that the downward turn of the Tech sector and thus the current financial recession was caused in a large part because the Bells never fulfilled their obligations, as well as the documented harm to competitors.

Stunningly Bad Regulations by the FCC

The FCC is also seriously to blame for the current situation with the lack of fiber-based broadband in the US. They have consistently created laws to block competition. Most recently, the FCC has created the "Triennial Review" which closes out competitors from using the customer-financed networks and gives private companies, the Bell companies, the exclusive us of fiber-based networks, as well as shutting down 'line-sharing' which allows Internet providers and competitive local phone companies to use even the older copper networks. Teletruth: Broadband and DSL Issues

By all means, read this history and listen to these and other arguments with a healthy dose of skepticism. They may appear to be kooks, or they may even be kooks. But the value of listening to an unconventional viewpoint is that it puts one's assumed reality in perspective. Indeed, WE ALL may be even bigger kooks for taking at face value the information offered us by multi-billion dollar corporations and government regulators: corporate individuals with competing priorities, with strong incentives to shade the truth and government regulators who have consistently given those they regulate everything they wanted, despite a history of broken promises. Trusting the untrustworthy, now how much sense does that make? Just who is getting played here? Indeed, who is more kooky, after all?

The bottom line for me is as follows.

In the Networked Information Age, our broadband information infrastructure has become too vital to be left in the hands of a select few, operating behind closed doors. Broadband has become too vital to place all of our chances for success on a narrow strategy defined and executed by insiders.

This sentiment is especially poignant when one considers that there now exists an alternative when it comes to broadband. We need to challenge our old way of thinking about this subject and factor in some of these new perspectives. I argue that we should be giving strong consideration to implementing a Plan B that doesn't involve trusting either the government or big business. We need a contingency plan that will shield us from the consequences of making the wrong bet because we followed conventional wisdom.

The challenge we face is that the telecom and broadband story is so complex that most people lack the patience to wade through it. The facts are so mind-numbing as to stagger the imagination. It's hard to believe that this situation continues year on year, yet it does.

But the good news is that we have an alternative to the Trusted Adviser scenario above.

Cities and neighborhoods, investors, property developers, business leaders - each can now take matters into their our own hands and craft their own broadband future. The concept of the Wisdom of the Crowds poses the curious finding that many well-informed individuals are consistently better at making decisions than are a small group of really smart people. That concept holds when it comes to building a better broadband tomorrow - why don't we look to more local solutions for more creativity and less risk?

We know that's true when it comes to investing. Experience has taught us that a well-balanced portfolio of smaller investments produces better results at lower risk than does one big investment. We look for a balance of expected return and acceptable risk. We take control and tailor our risk to meet our needs. As much as we would like to be totally safe regarding the future, nobody has a crystal ball. When it comes to investing, there is no such thing as a Trusted Adviser, although many will claim that title. Look closely at the fine print and you'll see that advice comes at a high price, and even after all those high fees, it's not your adviser that takes the risk, you do. You own it, no matter what.

Don't like the idea of putting all your chips on Red and then watching the wheel spin? Want a second opinion? Don't fret, the good news is that now, we can each choose to manage our own chips for ourselves. The beauty of technology is that we've been liberated from a decision-making paradigm that controlled our future. We don't need any large global telecommunications company to build our broadband future for us. That's what the metropolitan broadband movement is all about.

But for non-telecom people to take the steps needed to gain control of their broadband destiny, they will need to get educated. They will need to raise their Network IQs. And they need to build up their self confidence, to show themselves that they can do at least as well or even better than the phone company has done when it comes to broadband. We still need time to let this movement grow and show us their results.

So keep reading this and other resources. And Happy Risk Taking! The good news about learning about risk is that you tend to make smarter bets the more you lose. You make smarter bets, that is, IF you learn from every loss. So start making some small bets in broadband, just to learn. Track how you do, and compare notes with others. Gain some experience, and as you do, you'll also gain confidence.

In the end, becoming aware and taking control of your own destiny is the only way to really live. Playing it "safe" is for wussies, and increasingly, playing it safe has its own risks. Please, avoid being a wussie - take some chances, live life! Remember - Nothing ventured, nothing gained.

And when "safety" turns out to be a chimera, when the opportunity cost of the safe route turns out to bear little to no reward, and when your "Trusted Adviser" is deemed not worthy of your trust, then the "safe route" is even worse, it's for saps. So please, don't be a sap either. Get smart, get experienced, get real, get busy on alternatives to Status Quo Broadband.

Posted on November 11, 2007 at 06:43 AM | Comments (0)

Poker with Dick Cheney

Amazing what you find reading blogs. I came across this one this morning Five Nominations for the Best Weblog Post Ever!, recommended for sure, but not the main theme of this post...in the Comments section readers added their personal Favorite blog posts, many of them quite hilarious. One of them looked particularly good, but the link would not take me there, nor could I find it through various Google searches.

Many of you may already be aware of this website, and I had heard about it, but there is an Internet archive for dead posts - bookmark this one - I found the post I was looking for - amazes me when technology actually works! See the Internet Archive: Way Back Machine. It works!

So as a public service, I've resurrected this little gem titled The Poor Man: Poker With Dick Cheney, from way back in June 2004.

Enjoy (also copied after the jump).

Poker With Dick Cheney

Transcript of The Editors' regular Saturday-night poker game with Dick Cheney, 6/19/04. Start tape at 12:32 AM.

The Editors: We'll take three cards.

Dick Cheney: Give me one.

Sounds of cards being placed down, dealt, retrieved, and rearranged in hand. Non-committal noises, puffing of cigars.

TE: Fifty bucks.

DC: I'm in. Show 'em.

TE: Two pair, sevens and fives.

DC: Not good enough.

TE: What do you have?

DC: Better than that, that's for sure. Pay up.

TE: Can you show us your cards?

DC: Sure. One of them's a six.

TE: You need to show all your cards. That's the way the game is played.

Colin Powell: Ladies and gentlemen. We have accumulated overwhelming evidence that Mr. Cheney's poker hand is far, far better than two pair. Note this satellite photo, taken three minutes ago when The Editors went to get more chips. In it we clearly see the back sides of five playing cards, arranged in a poker hand. Defector reports have assured us that Mr. Cheney's hand was already well advanced at this stage. Later, Mr. Cheney drew only one card. Why only one card? Would a man without a strong hand choose only one card? We are absolutely convinced that Mr. Cheney has at least a full house.

Tim Russert: Wow. Colin Powell really hit a homerun for the Administration right there. A very powerful performance. My dad played a lot of poker in World War 2, and he taught me many things about life. Read my book.

TE: He's extremely good at Power Point. But we would like to see the cards, or else we can't really be sure he has anything to beat two pair. We don't think he would lie to us, but ... well, it is a very rich pot.

Jonah Goldberg: Liberal critics of Mr. Cheney's poker hand contend that "he doesn't have anything". Oh, really, liberal critics? Cheney has already showed them the six of clubs, and yet these liberals persist in saying he has "nothing". Why do liberals consider the six of clubs to be "nothing"? Is it because the six of clubs is black?

Matt Drudge: ****DRUDGE REPORT EXCLUSIVE****
*****MUST CREDIT THE DRUDGE REPORT*****
The Drudge Report has learned that Dick Cheney has a royal flush, hearts. Developing ...

TE: Perhaps if you could just show us a subset of your cards which beat 2 pair? Or tell us exactly what your hand is?

DC: We will show you our cards after we have collected the pot. It is important that things be done in this order, otherwise the foundation of our entire poker game will be destroyed.

TE: We aren't sure ...

DC: Very good. And here are my cards. A straight flush.

Judith Miller: Dick Cheney has revealed a straight flush, confirming his pre-collection claims about beating two pair.

TE: Those cards are of different suits. It's not a flush.

Mark Steyn: When will it end? Now liberal critics complain that Dick Cheney's cards are not all the same suit. Naturally, these are the same liberals who are always whining about a lack of diversity in higher education. It seems like segregation is OK with these liberals, as long as it damages Republicans.

MD: ****DRUDGE REPORT EXCLUSIVE****
*****MUST CREDIT THE DRUDGE REPORT*****
A witness has come forward claiming that The Editors engage in racial profiling in blog-linking. Developing ...

TE: Wait! It's not even a straight! You've got a eight and ten of hearts, a six of clubs, and the seven and five of diamonds. You have a ten high. That's nothing.

Sean Hannity: Well, well, well. In another sign of liberal desperation, liberals now complain that a ten high is "nothing". Does ten equal zero in liberal mathematics? That would explain a lot.

Robert Novak: It's a perfectly valid poker hand. Apparently, liberals have never heard of a "skip straight". It's a kind of straight, just with one card missing. But if you skip around the missing nine, it's a straight.

Alan Colmes: Mother says I mustn't play poker.

TE: There is no such thing as a "skip straight".

Brit Hume: It seems like some people are still playing poker like it's September 10th. Back then, you needed to have all your cards in order to claim a straight. But, as we learned on that day, sometimes you won't have perfect knowledge. Sometimes you have to learn to connect the dots, and see the patterns which are not visible to superficial analysis of the type favored by the CIA and the State Department. Dick Cheney's skip straight is a winning poker hand for the post-9/11 world.

Rush Limbaugh: Do The Editors have two pairs, or a pair of twos? First they say one thing, then another. What are they hiding?

Andrew Sullivan: Dick Cheney never said he had a straight. He was very careful about this. His cards can form many different hands. None of these hands alone can beat a pair of twos; but, taken together, the combination of all possible hands presents a more compelling case for taking the pot than simply screaming "Pair of twos! Pair of twos!" as unprincipled liberal critics of the Vice President so often do.

MD: ****DRUDGE REPORT EXCLUSIVE****
*****MUST CREDIT THE DRUDGE REPORT*****
Did The Editors claim to have "a pair of Jews"? Are they anti-Semites as well as racists? Developing ...

Zell Miller: As a lifelong liberal Democrat, I believe Dick Cheney, and I hate liberals and Democrats.

William Safire: Why are liberals so obsessed by Dick Cheney's poker hand? The pot has been taken, the deal is done. If liberals are upset that we are no longer playing by the Marquis of Queensbury patty-cake poker rules, they clearly lack the stomach to play poker in the post-September 11th environment. And why do they never complain about Saddam Hussein's poker playing, which was a thousand times worse?

Christopher Hitchens: The Left won't be happy until the pot is divided up equally between Yassar Arafat, Osama bin Laden, and Hitler. Orwell would have seen this.

Ann Coulter: Why do liberals object so strenuously to the idea of conservatives having a "straight"? Perhaps because it doesn't fit in with the radical homosexual/Islamist agenda they hold so dear?

Report of the Bipartisan Commission on Poker Hands: There is no such thing as a "skip straight".

DC: I have access to poker rules that the Commission doesn't, and so I know for a fact that the cards in my hand are all intimately connected.

George W. Bush: Dick Cheney is telling the truth. I'm a nice man who would drink a beer with you.

Vladimir Putin: I dealt Dick Cheney three aces and two kings.

DC: My deal.
Posted by The Editors at June 20, 2004 07:34 PM | TrackBack

Posted on November 02, 2007 at 08:06 AM | Comments (0)

What Would Woodward and Bernstein Do?

Continuing with the Watergate II theme ...

As much as I promote Alternative Broadband on this blog, I guess it should come as little surprise that I've really become more and more used to getting my news from Alternative Media, namely, from special interest blogs and websites. Frankly, I find the writing superb and the reporting excellent, generally a cut above what you will see from the Main Stream Media (MSM).

It's amazing that since I began reading these blogs say six-nine months ago, I consistently find myself reading old "news" the next day in the morning paper, in what you might call a summarized version. Or when I have time to watch one of the cable news shows, I realize how much detail and nuance is missing. And you might as well forget the really mainstream media such as CBS News or USA Today, which provide the viewer what could only be termed as Cliff Notes News, dumbed-down at that!

These blogs, when you get used to reading past the opinions and the informality, provide some very compelling insights into what is going on in the world. They come across as fresh, if a little obsessive. Take these two that I highlight in this post today as an example.

The Anonymous Liberal is written by an attorney, who is self-described as Who Am I? For what it's worth, I'm a litigator at a large national law firm (at least until someone offers to pay me to write about politics). Until then, I'll just have to go by A.L. As an attorney, A.L. brings a level of subject matter expertise and attention to detail that a regular reporter could only dream of. See this analysis of the telecom immunity issue in Did the Senate Intelligence Committee Disclose Key Evidence of Telecom Illegality?

Consider next these two recent posts on The Next Hurrah. These two articles are great examples of how this Alternative Media can focus on details that may be considered too arcane for the mainstream press to cover, but are nevertheless relevant to give a more complete picture.

On October 25, this post, The United States of AT&T Wants Satellites Now, Too, highlights the potential of very large well financed companies to grow ever larger and more powerful, supporting the role of government to exercise oversight and keep things in balance. Something to think about when we consider how that power can be used in light of recent revelations, like ...

On October 27, this post, The Dodge on Retroactive Immunity, provides a good summary of how a Democratic-majority congressional committee could consider acquiescing to the demand of a weak Republican administration to grant retroactive immunity to telecommunication companies that broke the law in supporting the administration's request to use the networks they manage for domestic spying. That's still a head-scratcher for me.

This post is well-written and succinct as it goes into detail examining the inner workings of the committee and its approach to the law, on this compelling constitutional issue. I found it both informative and riveting.

The law says that only the AG or someone specified in 2518(7) may provide the telecoms with the certification that their actions are legal. Here's what 2518(7) says:

(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that— [my emphasis]

So the only people who may give telecoms the authorization that their eavesdropping is legal are: the AG, the DAG, the AAG, and any principal prosecuting attorney, such as a USA [Actually, maybe this means a State AG].

Yet, as the report informs us, for a period of time (a period of time, I might add, at some remove from 9/11), none of those people had signed off on the wiretapping program. After the Deputy Attorney General, as the Acting Attorney General refused to endorse the legality of the program, Alberto Gonzales authorized it.

The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.

The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President. [my emphasis]

But Alberto Gonzales was not then one of the named people who could authorize such wiretaps. He was an attorney, but not a prosecuting attorney. In fact, at the time, he was not a law enforcement officer at all (unless you count someone enforcing Cheney's law as a law enforcement officer).

As I pointed out above, the committee tries to get around this inconvenient legal fact by waving around purposely vague language, using the phrase "certain other officers" to hide the fact that only specific other officers have the authority to authorize such wiretaps. They do it again in their final justification for extending immunity to the telecoms--replacing the titles of the very specific officers who can authorize wiretapping with another vague phrase, "high-level Government officials."

On the basis of the representations in the communications to providers, the Committee concluded that the providers, in the unique historical circumstances of the aftermath of September 11, 2001, had a good faith basis for responding to the requests for assistance they received. Section 202 makes no assessment about the legality of the President's program. It simply recognizes that, in the specific historical circumstances here, if the private sector relied on written representations that high-level Government officials had assessed the program to be legal, they acted in good faith and should be entitled to protection from civil suit. [my emphasis]

Effectively, the committee has rewritten the law to accommodate Bush's actions when he deliberately bypassed his own DOJ.

So, in addition to giving the Administration carte blanche to hide its own wrong-doing by invoking State Secrets and thereby depriving its accomplices of any defense, the committee has effectively rewritten the law. Where the law very clearly specifies that only a senior law enforcement officer may authorize wiretaps, they've inserted vague language that extends that authority to any hack who is willing to do the President's Vice President's bidding.

And in the process, most Democrats on the committee have written a convenient excuse for actions that amount to giving not only the telecoms, but Bush and Gonzales immunity.

So, it's not just about telecom immunity, but also about covering the tails of Bush and Gonzales. I have to think that if Woodward and Bernstein were on the trail of this current ongoing political drama, they would be writing something like what is written above at The Last Hurrah. So we have journalists pointing the way, what is missing in today's political world is a Congress with a backbone to stand up to this Administration's overreaching interpretations, subjugations of the Constitution, and abuses of power.

Posted on October 31, 2007 at 07:29 AM | Comments (0)

Unitary Executive v. Constitution - You Make the Call

Critics claim the President has used the war on terror to put himself above the law and that he has created a secret presidency of classified decisions and orders, that approve extraordinary renditions, torture, illegal detentions, and wiretapping without warrants with the collaboration of big telecom companies. This boundless secrecy and surveillance evokes images counter to American values. Bill Moyers Journal: Power and the Presidency

What good is broadband for all if this powerful new tool gets perverted and twisted into a means to repress political expression, to enable our government to flout our constitutional rights to privacy, to take away the country we love?

As much as I hate to say it, broadband policy has become more serious over the past several weeks. While the subject has always been inextricably wrapped up in national, state, and local politics, the discussion has generally been about getting access to a benefit, or on the downside, being denied a benefit. And it continues to be about benefits and consumerism, 99% of the time.

But there is a growing awareness of a new aspect to this network. We've shifted to talk about broadband networks becoming a threat to our lives and our liberty. It's not hyperbole to say that the Internet, when used as a tool and operated outside the bounds of laws, under the control of corporations that do not consider themselves to be subject to the same laws that you and I are, has become a realistic threat to democracy.

It doesn't have to be this way, and we are at the very beginning of this discussion. This is an important theme to pursue at this moment in our history.

Along with the excited talk about the potential of dual use iPhones and video over IP, we need to look at a darker underside to this broadband phenomenon. Because when comparing threats, the looming ExaFlood pales in comparison to the present subversion of the Constitution.

Check out this powerful video segment and see if you don't feel the same way. Moyers concludes his segment with this exchange, remembering a seminal moment from a mere 33 years ago.

BILL MOYERS: But listen to this voice from the past. From 1974. The Watergate scandals had revealed astonishing crimes and secret abuses of power by President Nixon and the men around him. The House Judiciary Committee was deliberating Nixon's impeachment. Congresswoman Barbara Jordan of Texas went straight to the heart of the matter:

BARBARA JORDAN: My faith in the constitution is whole it is complete it is total and I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.

Posted on October 31, 2007 at 07:10 AM | Comments (0)

The Revolvng Door between Government and Telecom Industry

Writing in The American Prospect, Brian Beutler lays out a relationship that doesn't get a lot of attention in the Main Stream Media (that's "MSM' to regular readers of blogs.) Beutler describes in detail how the news of telecoms doing the bidding of government should not be a big surprise, because they all know each other and more than likely, have worked with each other under the same corporate or government logo at one time or another.

It seemed like shocking news last week when the telecommunications giant Verizon admitted it has readily allowed warrantless national security investigators to browse customer records on thousands of occasions. But given the revolving door between the telecom industry and federal government, no one should be surprised by their cozy relationship.

According to OpenSecrets.org, a Web site run by the Center for Responsive Politics in Washington, D.C., the worlds are well connected : There are no shortage of government officials who once worked in the telecommunications industry, and no shortage of telecommunications industry execs who once worked for the government.

This is not altogether uncommon in government and large corporate business, especially at high levels, but it seems to be especially common in telecommunications.

Many of the men and women who have hopped the fence - sometimes more than once - between government and telecom have done so via predictable channels. It's not uncommon, for instance, for aides and commissioners to the Federal Communications Commission to come from or move on to careers in telecommunications. It's arguably not even that surprising. But there are also the executives - like those who fill Verizon's ranks - who have spent years fighting for the government's right to pry into consumer data.

In an Oct. 12 letter to Democratic lawmakers, Randal S. Milch, senior vice president and general counsel to Verizon, admitted that, in tens of thousands of instances over the last two years, his company has provided government officials with subscriber information without court orders. According to the letter, that information has included subscriber names and addresses, local and long-distance telephone connection records, and methods and sources of payment.

Milch serves alongside William P. Barr, who is executive vice president and general counsel to Verizon. In Barr's past life, he was an analyst for the CIA, who went on to serve as a domestic policy adviser to President Ronald Reagan and as the attorney general of the United States under President George H.W. Bush. Throughout his esteemed government career, and well after he'd moved into the telecommunications industry, Barr has shown a voracious appetite for government surveillance.

So, it's not just that they all know each other - they share a common agenda, which is to leverage their access to data for their own purposes. In government or telecommunications, executives from both sides are in positions of public trust, so this is worrisome.

In 1995, after he'd made the switch, he told the House Judiciary Committee that "emergency wiretap authority exists under current law with respect to a range of criminal activity. Existing emergency authority has been sparingly used and I am not aware of any indication of abuse. It is clearly appropriate that the same emergency authority that applies with respect to mafia conspiracies also applies to terrorist conspiracies."

He argued that, when conducting surveillance, a single subpoena issued by the government should be sufficient to cover multiple telephones registered to an individual target. "It is impractical to identify a particular phone. This is perfectly in line with constitutional protections. After all, the right to privacy guaranteed under the Fourth Amendment is an individual's right to privacy; it is not an inanimate object's right to privacy. Roving wiretaps targeted at particular suspects rather than specific phones should not cause alarm."

Barr's testimony was cited in the House Report on the Comprehensive Antiterrorism Act of 1995 as justification for an expansion of federal wiretapping authority. The following year, he advocated on behalf of the use of intelligence information in domestic law enforcement proceedings in cases of suspected terrorism.

And that was all before Sept. 11, 2001. After the terrorist attacks, Barr re-emerged on Capitol Hill to lend his support to controversial measures such as beefed up executive privilege, broadened Foreign Intelligence Surveillance Act authority, and both the use of military tribunals in specific and the USA Patriot Act more broadly.

Barr represents perhaps the most overtly wiretap-friendly liaison between the telecom industry and the government of the United States, but he's far from alone at Verizon. Peter Davidson, Verizon's chief lobbyist, was once a staffer in the Justice Department's Office of Legal Counsel, and served as general counsel to former Texas Rep. Dick Armey when Armey was House majority leader.

Additionally, a former senior vice president at Verizon, Edward Whelan, was from mid 2001 to 2004 the principal deputy assistant attorney general for the Office of Legal Counsel. He clerked as well for Justice Antonin Scalia and, later, wrote an article defending Justice Samuel Alito who, in memos that eerily presage the current FISA debate, argued "an executive branch official who authorized the illegal wiretapping of U.S. citizens without a warrant should be immune from lawsuits," according to Charlie Savage of the Boston Globe. The Alito memos were written in his Justice Department days, before he was appointed to the Supreme Court.

None of this necessarily means Verizon and other telecom firms can't be trusted to honor our privacy, and the law. But it does show that if the executive branch wants access to nominally protected information, or the Congress wants to expand the legal framework in which surveillance is allowed, the doors are wide open and their friends are eagerly waiting.Snoops Get a Direct Line |

This type of perspective puts these events in a whole new light for me. It makes them that much more serious because it becomes hard to see where the government ends and the telecom company begins.

Posted on October 29, 2007 at 03:04 PM | Comments (0)

Laura Scher Kicks Some Assets

Laura Scher, co-founder, chairperson and CEO of Working Assets, has written a couple of blogs that beg to be shared with you.

Working Assets is a mobile and credit card company founded in 1985 "on the belief that building a business and building a better world are not mutually exclusive." The company has donated over $50 million to progressive nonprofit groups. As CEO, Laura helped Working Assets grow to more than $100 million in annual revenue. Laura now is a lecturer at Stanford University, teaching "Social Innovation and Entrepreneurship" at the undergraduate level.

In early October, Laura wrote about the propriety of an Internet Service Provider that would reach into your emails and censor you, based on their determination of what is appropriate use of "their" network. HMMMMMM....did you read the fine print of your contract?

Last week we witnessed Verizon trying to prevent a nonprofit from communicating with its own members because the company believed the content to be unsavory. Under the pressure of The New York Times front-page story and a storm of criticism, they caved.

Now it's happened again: another communications company trying to limit communications of its subscribers. This time, AT&T has added a bizarre provision in its terms of service that its network subscribers - anyone using AT&T for internet service - cannot participate in "conduct that AT&T believes...tends to damage the name or reputation of AT&T, or its parents, affiliates and subsidiaries."

So the message from AT&T is: if you're using AT&T for your e-mail, be careful what you say. Goodbye free speech. Hello, corporate censorship.

But let's be clear: the only one doing real damage to AT&T . . . is AT&T's own corporate policy .

Sadly, we have few alternative services. Over the past 10 years we have seen consolidation instead of competition. Where there were once 10 phone companies now there are but a measly four. Most of us have only two choices for Internet access and both are enormous companies. Our government has remained silent, if not complicit, as this consolidation has occurred. The FCC and Department of Justice have approved merger after merger, each of which reduced - not encouraged - competition.

Remember, today's "new" AT&T (which, not incidentally, has given over $1.8 million to Republican candidates) is really SBC, which, before it took over that telecom giant, gobbled up Ameritech, Pacific Bell, Bell South, and Cingular, among others. It's noteworthy that these companies originated as regulated utilities, charged with the rights and responsibilities of providing a public good. Yet today the regulators, instead of protecting the citizens of this country, protect and abet the companies that are eliminating consumer choice through voracious mergers.
---

I leave you with one unsettling question. How does AT&T find out if we're writing e-mails that are "damaging their name? " Are they now tracking our in-boxes? If you read this and use AT&T for your Internet service, why not give this a try: e-mail this article to a friend. It's the most subversive thing AT&T thinks you can do. October 5, 2007. AT&T: Out of My In-Box!

After the jump, I've captured a more recent blog by Laura that speaks directly to the current imbroglio concerning FISA and Telecom Amnesty.

It's been all over the news that in 2007, executives at Verizon and AT&T donated over $42,000 to Senator John D. Rockefeller, IV, chairman of the Senate Intelligence Committee. Prior to 2007, Rockefeller wasn't getting any significant contributions from telecomm executives. But of course, prior to 2007, Rockefeller wasn't pushing his committee to grant retroactive immunity to phone companies that helped the NSA with its secret, warrantless surveillance on America's telephone calls.

There are so many reasons to be enraged by this.

As CEO of Working Assets, the socially responsible mobile and long distance company, I have watched for 15 years while big telecom "bought" monopoly power from Congress, from the White House and from the FCC. This is how they do business. Instead of building the best phone company, they buy politicians.

Instead of the vibrantly competitive telecom landscape promised by the deregulation of AT&T in 1984 and the Telecom Act of 1996, today we have a handful of telecommunications companies controlling legislation and policy, consolidating instead of innovating, and shutting out competitors. All with the blessing of the FCC.

Once upon a time the FCC took its role seriously, and required the phone companies to lease their networks. For a brief moment we had a competitive local telecom market offering a range of customized bundles and new features. Working Assets offered local service and doubled our donations for the customers who participated. But in due course the FCC bowed to the phone companies, and competitive local service simply vanished.

To add insult to injury, our politicians are cheap dates. For $42,000, these mega telecoms made a small but effective investment, given the magnitude of the lawsuits they are hoping to avoid, upwards of billions of dollars of damage. That's cheaper than hiring a D.C. lawyer for a week. When an issue is below the radar screen, it's easy to buy influence. But now that the issues have gone from thwarting competition to spying on Americans, I hope the public will start to pay attention, and hang up on the telecom companies' on-going campaign to buy the law that suits them best. Money Talks

Posted on October 29, 2007 at 02:43 PM | Comments (1)

A Long, Not So Gentle Backslide: Ersatz Oversight

I'm reminded of the "With Friends Like These, Who Needs Enemies" quote when I consider current events in our Democratic-majority Congress, more specifically, the Intelligence Committee and the FISA/Telecom Amnesty Issue. What passes for oversight and checks and balances these days, while a distinct improvement over the sad history of the first six years of this new century, still has a long way to go to get back to where it was a generation ago after the reforms that followed Watergate and the Nixon resignation.

Broadcast journalist, author, and social commentarian Studs Terkel has a great Op/Ed piece in the NY Times, The Wiretap This Time, where he puts recent events regarding FISA and Telecom Amnesty into perspective. And this guy has perspective:

Terkel graduated from the University of Chicago in 1934 with a law degree but says instead of practicing, he wanted to be a concierge at a hotel and also joined a theater group. He joined the Works Progress Administration's Federal Writers' Project, working in radio, doing work ranging from voicing soap opera productions and announcing news and sports, to presenting shows of recorded music and writing radio scripts and advertisements.

Terkel is well known for his radio program titled The Studs Terkel Program that aired on 98.7 WFMT Chicago between 1952 and 1997. The one-hour program appeared each weekday during all of that time. He interviewed guests as diverse as Bob Dylan, Leonard Bernstein and Alexander Frey. Wikipedia

This Op/Ed is valuable read, as Terkel reflects with first-hand experience on an inglorious past that saw the travesties of McCarthism move on to domestic spying and wiretapping of political opponents (think Martin Luther King), etc., etc. While we thought hoped we had put this behind us with the Church Amendment in the 1970s, apparently there is no rest when it comes to defending the Constitution, especially when you're defending it against assaults from within your own government.

In 1978, with broad public support, Congress passed the Foreign Intelligence Surveillance Act (FISA), which placed national security investigations, including wiretapping, under a system of warrants approved by a special court. The law was not perfect, but as a result of its enactment and a series of subsequent federal laws, a generation of Americans has come to adulthood protected by a legal structure and a social compact making clear that government will not engage in unbridled, dragnet seizure of electronic communications.

The Bush administration, however, tore apart that carefully devised legal structure and social compact. To make matters worse, after its intrusive programs were exposed, the White House and the Senate Intelligence Committee proposed a bill that legitimized blanket wiretapping without individual warrants. The legislation directly conflicts with the Fourth Amendment of the Constitution, requiring the government to obtain a warrant before reading the e-mail messages or listening to the telephone calls of its citizens, and to state with particularity where it intends to search and what it expects to find.

Compounding these wrongs, Congress is moving in a haphazard fashion to provide a "get out of jail free card" to the telephone companies that violated the rights of their subscribers. Some in Congress argue that this law-breaking is forgivable because it was done to help the government in a time of crisis. But it's impossible for Congress to know the motivations of these companies or to know how the government will use the private information it received from them.

And it is not as though the telecommunications companies did not know that their actions were illegal. Judge Vaughn Walker of federal district court in San Francisco, appointed by President George H. W. Bush, noted that in an opinion in one of the immunity provision lawsuits the "very action in question has previously been held unlawful." The Wiretap This Time

Posted on October 29, 2007 at 01:39 PM | Comments (0)

Medieval Medicine: Mortal Remedies, Suspicious Cures

I don't know about you all, but I'm not altogether impressed with the work to date of the Homeland Security agency.

I for one do not feel any safer than before this huge bureaucracy was created after 9/11. Tick off just these three items from the long list of evidence ...
- Warning us of threats - the color scheme was downright silly from the start, then became untrustworthy when it was shown that heightened alerts were timed for political effect
- Protecting us from our airplanes - The Transportation Safety Administration was smart when they sealed off airplane cockpits after 9/11, but that's where it stopped for me. I fail to see how making me take off my shoes and my belt and pull out my laptop, how frisking old ladies, how fighting with nursing mothers over their baby bottles, how confiscating shampoo, hand lotion, and nail clippers helps us more than hurts us. Have we gone crazy?
- Protecting us from our borders - The Border Patrol intends to build along the US/Mexico border, while many local officials fight off their efforts. The bad guys have to realize that a fence in Mexico would just make entry from Canada that much more attractive, or for that matter, sailing in along the coast would not be so hard. It seems we're much more afraid of the cultural threat of more illegal Hispanics than we are of terrorists.

You get the picture - it's not an inspiring track record, especially considering how much money we're spent in order to be safer.

Yet our ports for one thing remain vulnerable, as do our nation's chemical facilities, and indeed, much of the rest of our national infrastructure.

So I'm not exactly filled with warm feelings when I read today that Homeland Security is concerned about the safety of the Internet. I'm concerned too, but in a different way. And after reading this editorial in today's New York Times The Information Highway Patrol, I'm not sure this particular patient can stand this particular doctor's cure. It sounds more like applying leeches to bleed the patient to remove the evil spirits. No thanks.

Getting the NSA and 2,000 workers involved in a secret plan to "secure" our nation's vital information infrastructure sounds quite suspicious, especially in light of recent revelations on other domestic surveillance programs detailed in my recent posts on this site. And when members of the Congressional oversight committee are kept in the dark, I get even more uneasy.

I would offer one small piece of advice - the more diverse our community of Internet Service Providers, the harder it would be for anyone to tear down the Internet. The more dispersed its centers of control, the more difficult it is as a target. The way to attack a network is to go for the hubs, those critical areas of concentrated activity. So the more hubs there are, the less damage taking out one of them would cause.

I believe our security from threats to infrastructure will come more from spreading out the critical pieces, so that if one piece is lost, the body does not suffer so much. We need to get our protection from the private marketplace. I don't believe our security will be improved by letting our government keep ever more secrets or spend ever more money to gather more and more sensitive information, while at the same time putting more and more eggs into the few baskets of very large telecom and cable service providers. I don't get it.

Read the editorial below and see if you're not just a little concerned about the proposed cure to the problem of a vulnerable Internet.

No one can envy the Department of Homeland Security its multifarious responsibilities stretching from port security to cyberspace. But surely the agency is obliged to respond fully to Congressional inquiries about its murky plan to monitor government and private communications in the name of protecting the information infrastructure from terrorists. Details have been vague, but the plan reportedly involves some 2,000 workers and the expertise of the National Security Agency and other espionage specialists to guard the Internet.

It's no wonder members of Congress are curious, considering the administration's subversive track record of domestic spying. Members on the Homeland Security panels - who complain they are too much in the dark - have asked the agency to hold off on plans to unveil the program as early as next month. Constitutional and privacy questions need to be adequately answered first.

The nation remains unprepared for a major Internet crash, according to the latest accountability report from Congressional monitors. A proper defense obviously requires close cooperation from experts in government and private industry. A bit of progress was noted in the hiring of an assistant secretary to coordinate cybersecurity. But Congressional monitors find the effort lagging, with a major reason the private sector's mistrust of the leadership at the Department of Homeland Security.

The agency has a huge task, securing the communications infrastructure while protecting the government's ability to communicate in an emergency. It cannot afford to undermine that effort by withholding information from Congress. Answer the questions; make the case along the delicate ridge between national security and constitutional privacy.

The citizens are knowledgeable users of the Internet and sense both its vital role and fragility. They want it protected. They just need informed reassurances by way of their elected representatives, not vaporous edicts from the administration.

Posted on October 29, 2007 at 09:06 AM | Comments (0)

The Road to 1984, paved with good intentions

Airstrip One is part of the vast political entity Oceania, which is eternally at war with one of two other vast entities, Eurasia and Eastasia. At any moment, depending upon current alignments, all existing records show either that Oceania has always been at war with Eurasia and allied with Eastasia, or that it has always been at war with Eastasia and allied with Eurasia. Winston Smith knows this, because his work at the Ministry of Truth involves the constant "correction" of such records. "'Who controls the past,' ran the Party slogan, 'controls the future: who controls the present controls the past.'"

In a grim city and a terrifying country, where Big Brother is always Watching You and the Thought Police can practically read your mind, Winston is a man in grave danger for the simple reason that his memory still functions. He knows the Party's official image of the world is a fluid fiction. He knows the Party controls the people by feeding them lies and narrowing their imaginations through a process of bewilderment and brutalization that alienates each individual from his fellows and deprives him of every liberating human pursuit from reasoned inquiry to sexual passion. Amazon.com synopsis of George Orwell's 1984

My daughter and my wife recently read 1984, and I'm tempted to go back for a second read, having first read it back in 1973 at age 16, when 1984 seemed a long way off, both literally and figuratively. Back then, in my youth and in a more simple time, I couldn't imagine such a horrible world, but George Orwell, writing in 1948 and having just lived through the horrors of World War II totalitarianism and amid the fresh realization of the ongoing hell that Joseph Stalin had produced in the Soviet Union, had no problem imagining such a world in great detail. But it seemed so far away - could never happen in the USA - home of democracy, the balance of powers, the rule of law, where the right to privacy was sacrosanct and civil liberties were protected by the greatest legal and political system to ever walk the planet.

So I hesitate to write this post, because I don't want to seem paranoid, and I don't want to even imagine that that life from 30 years ago is gone, in any way, shape, or form, as if imagining it could make it come true. But when I connect the dots of recent events, coupled with the dots of recent history with telecom companies and the rise of the Internet, I think a little caution and a small dose of fear and foreboding is in order, because technology has finally enabled a future where the government can look into our private lives with great ease. It's only rational to look at the situation with skepticism even though we're assured that our government and the network operators only break the law with our best interests at heart. After all, we're constantly reminded, "We're in the middle of a Global War on Terror, and things are different during wartime..." But then, when I look at the administration's long-term vision, I see no end in sight - I think this Wartime footing goes on indefinitely...and so, one must assume, would the wartime suspensions of civil liberties.

If we do end up in Orwell's 1984 world, and I hope with all my heart that we don't, I don't think we'll wind up there through a revolution. It won't be sudden, rather, it will be through the gradual chipping away of our civil rights, enabled by a compliant press and a scared public, and through ever more powerful technology that lets the government gain access to information to wield ever more power and control. Who knows if it's next year, or ten years from now, or twenty? But surely we're on a path that has at least a growing potential to end in some kind of future like Orwell described in 1984...that is, if we don't steer away from this path by consciously building and maintaining safeguards against it.

What bothers me is that I don't think enough people realize the impact that the Internet and other digital technologies bring to this potential for authoritarian government. They dramatically alter the equation. The more citizens and businesses come to rely on broadband Internet, the more our lives move on-line ... the more susceptible we become as a society to abuse of our digital life data files. So where else does our current path take us? The more I think about this, the bigger it becomes.

Consider my assessment after the jump.

The Recent (and Past) History of Telecoms and the Law
(see recent posts here, here, here, here, here and here.)

1. From Monopoly to Oligopoly. Over the best intentions of the government to bring about competition during the past three decades, two very large and powerful telecom companies, AT&T and Verizon, have reorganized and pulled back together the bulk of the old Ma Bell, adding wireless and Internet and video along the way.
2. Might Makes Right. These companies have a history of seeing the law not so much as an absolute boundary to be respected, but more as a flexible, malleable boundary that they can change with enough money and enough political influence and enough time.
3. Good PR is Good Cover. These companies have demonstrated a history of well-calculated success in changing the law and regulations and then managing public opinion to suit their purposes and benefit their strategies. They're good at what they do, especially when it comes to getting their way.
4. Behind the Scenes. These companies have long enjoyed a cozy relationship with lawmakers and regulators, where together they share a desire to blur the lines between business and government.
5. You Scratch My Back ... These same companies have recently been found guilty of breaking the law for sharing private customer data with the federal government when it asked, but doing so without a warrant as the law required.
6. Get Out of Jail Free Card. Wrapped into "public security" legislation being promoted by the Bush administration in a climate of fear combined with very slick political maneuvering, is a provision to overturn the court's ruling against the telecoms with retroactive legislation that will give the telecoms immunity from prosecution for their law breaking. Some believe the reason documents requested by the Senate from the White House went to the Intelligence Committee instead of the Judiciary Committee was so that they could tie the request for records to a quid pro quo demand to immunize the telecoms.
7. Power, Attitude, Vision. The telecom companies control vast sums of money, unprecedented political influence, and through their information networks, they enjoy views into our private lives like never before. They have greater capability than ever to abuse their positions of trust. Which is not to say they will always do so, but this is not a good start.
8. Checks & Balances. The only thing that stands between routine violations of privacy, indeed total loss of privacy, by a repetition of these events is a credible legal barrier that keeps these network operators in check.
9. Big Brother - Not Yet. And that is the challenge raised by recent events, and that's why I think the Democrats will make this a big deal, starting with Sen. Dodd's filibuster and moving on to the presidential campaign next year.

The Recent History of the Bush Administration

1. Signing Statements = Line Item Veto. Throughout his administration, when Bush signs a new law, whatever the law, he generally accompanies it with a Signing Statement that says what pieces he agrees with and will enforce, and what he disagrees with and will disregard. In essence, a line-item veto, which the law does not give him, but which he takes nonetheless. What does "law" mean anymore with that kind of attitude? He neuters our law-making body, the Congress, with signing statements.
2. The Constitution - "More guidelines than rules per se". Sworn to uphold the Constitution, Bush has instead subjected it to the widest of interpretations to fit his policies, their maneuvers more often struck down than upheld by the courts, but too often not reviewed or challenged at all. And when that happens, Bush can always go back to the Congress to change the very laws his administration has been deemed in violation of, in effect, to retroactively overturn the court's ruling. What does "law" mean anymore with that kind of attitude? He neuters our court system, turning our rule of law upside down with such manipulation of the Congress.
3. Secrecy - What they don't know won't hurt them. Unlike any other administration, this one uses every power at its command to keep things behind the scenes and to avoid investigation and scrutiny. Under the cloak of National Security, any number of issues remain behind the curtain, and the cloak can cover up a lot of things.
4. Government Outsourcing - Let's Get This Party Started. From Blackwater to Halliburton, this administration has overseen a transfer of functions to the private sector and an incredible coziness with large corporate interests, from K Street to Wall Street. Government's role almost appears to have become to take care of large corporations first and the people second to screw the people. And to hear former Qwest CEO Nacchio tell it, telecoms are part of the large corporate feeding frenzy at the government trough.
5. National Security - The Mother of all Trump Cards. It's as if all legal rules and social mores have been suspended in the interests of National Security. We have lost our way when we see:
a. the US use torture and "rendition" so that it becomes commonplace and innocents are arrested, abused, then released with no apology;
b. the US suspend habeus corpus and allow their president to throw people in jail with no charges;
c. the US attack a country unprovoked, under a cloud of deception, against world opinion, and now, against US public opinion;
d. the US rattle sabers to attack another country, again in this preventative mode, in the absence of pursuing a diplomatic alternative;
e the US run up hundreds of billions of dollars to wage a war, with billions more to come, but no tax to pay for it and then those same leaders say that health care for poor children cannot be paid for, can't be afforded;
f. the US Justice Department brings charges against political opponents with impunity, even throwing a Democratic governor in jail, while ignoring Republican malfeasance in that same state; and
g. the US government and large corporations conspire to spy on their own citizens and customers on a wholesale basis, and when after such behavior has been uncovered, make strong-arm attempts to retroactively immunize those culpable.

When all these things happen in a short six years, one must ask - What happened to us and our wonderful country? What comes next? Will broadband Internet help us or hurt us even more?

The cynic in me says that until this trend is stopped, its logical to expect more law-breaking, more spying. And when that is discovered, expect more amnesties, more chipping away at the protections built into the law, more eroding of the law itself. And if the trend continues long enough, expect such behavior to become the norm and expect our government and society to lose all semblance of democratic reality. Down will have become Up, and Up, Down. Truth will be more and more Lies, Lies will be held up as Truth. Welcome to 1984. It didn't come in 36 years, as Orwell predicted, and it may not come until even one hundred years after publication - 2048, only 41 years from now, when my son will be my age. But this future awaits us if we do nothing to stem these trends.

On the bright side, and that's hard to find after writing a post like this - at least it doesn't look like this direction is widely supported. So perhaps there is hope after all. Consider this recent ACLU Poll.

A majority of likely voters in the U.S. oppose giving immunity to telephone companies who sold customer information to the government, according to a survey released Tuesday by the American Civil Liberties Union.

Telephone company advocates in Congress and the Bush administration say that if telephone companies handed over information to the government, or allowed warrantless wiretaps, it was only in response to the nation's emergency needs in the wake of the Sept. 11, 2001, terrorist attacks.

But ACLU's senior legislative counsel Tim Sparapani said money may have been the motivation and most Americans aren't happy.

According to the ACLU survey of 1,000 likely voters, 59% were either opposed or strongly opposed to the idea of giving companies that sold such information to the government civil or criminal immunity, even if that information was used to "investigate terrorism."

About 31% of those surveyed said they supported or strongly supported giving such amnesty, with the remaining percentage of voters saying they were undecided.

Posted on October 25, 2007 at 02:25 PM | Comments (0)

Obama to FCC's Martin: Slow Down and Open Up

Presidential candidate and Illinois Democratic Sen. Barack Obama wants Federal Communications Commission chairman Kevin Martin to take a series of intermediary steps before making the leap to rewrite media-ownership rules, saying that not to do so would be irresponsible.

In a letter to Martin Monday (see below), the senator asked the FCC chairman to "reconsider your proposed timeline, put out any specific change to the rules for public comment and review, move to establish an independent panel on minority and small-business media ownership and complete a proceeding on the responsibilities that broadcasters have to the communities in which they operate."

The letter came in response to the news last week that Martin had come up with a timetable for moving forward on the congressionally and court-mandated rule review, planning to put out his own proposals for media ownership rules Nov. 13, then letting the public comment for four weeks before holding a mid-November vote on the changes. Obama Calls On Martin to Slow Down on Ownership Review

Setting aside for a moment the impossibility of putting out rules on Nov. 13, having public comment for four weeks, then holding a mid-November vote - I'm sure that's a typo - this news item is noteworthy in so much as FCC actions are getting scrutiny from a leading presidential candidate.

Granted, Barack Obama is a sitting US Senator and so it's not as noteworthy for a Senator to address concerns to the head of an executive agency, but one can see how all such issues start to take on more poignancy as the political campaign cranks up.

Fof the nearly seven years of the Bush administration, the FCC has typically seen rulings among the commissioners as a three-vote Republican majority outweighing the challenges of the two-vote Democratic minority. Not so often are challenged FCC rulings and processes detailed in the main stream press.

That all may change as the political campaign heats up in a few months, with this challenge as a harbinger of things to come.

Posted on October 23, 2007 at 10:52 PM | Comments (0)

Getting More Interesting

In the long run it's unclear whether Dodd's hold and filibuster threat, whatever backing it gets from Hillary and Obama, if any, can really hold up the FISA legislation. Advisers to Senate Majority Leader Harry Reid have said that while they're willing to work with Dodd to assuage his concerns, they expect that the bill will go to the floor despite his objections. It's also unclear what the final bill will look like; the bill has only just emerged from markup in the Senate Intel committee, and there's some opposition to telecom immunity among members of the Judiciary Committee.

Either way, opposition from Hillary or Obama, or both, could throw some significant obstacles in the way of the bill. And even putting aside whatever long term impact this has on the legislation itself, such a campaign by MoveOn could at the least make telecom immunity an issue in the Dem Primary.Election Central | Talking Points Memo | MoveOn And Top Bloggers To Launch Campaign Pressuring Hillary And Obama To Back Dodd On FISA

This issue that I discussed at length in a previous post here has the potential to go on and on and on, putting the telecom / government relationship under the microscope (and potentially spilling over into broadband policy?). Stay tuned...

Posted on October 23, 2007 at 09:43 PM | Comments (0)

Where There's Smoke ... Part VI Three New Issues

My last post tried to fill in the gaps on how we got "here." As broadband Internet matures, as cellular voice and data service proliferates, as media services converge, and as new wired and wireless technologies offer new network options and new business models, at least three new issues are focusing the debate when it comes to the new Triple Play approach to networked media (Voice, Video, Internet Access). Here are the topics and some key links to learn more.

Network Neutrality - Wikipedia Reference for a good, fairly balanced overview; Washington Post Jan 2006 Overview; Good Economic Argument; Lawrence Lessig's more libertarian viewpoint; and Law Professor Tim Wu's legal viewpoint

State and National Franchise Fees - New York: Issues in Cable Franchise Fees; New Jersey: October 2005 Municipality Issues Brief; Texas SB 5 Statewide Cable Franchise and subsequent FCC Cable Franchise Order; NATOA 2005 Telecom Cable Franchise Analysis

Spectrum Policy - Field Guide to the Upcoming 700 MHz Spectrum License Auction; 2002 FCC Report on Spectrum Policy; NYCWireless on unlicensed spectrum policy reform; Software Defined Radios (SDR) and Spectrum Policy; NTIA Fact Sheet on Recommendations to Improve Spectrum Management

For a high-level layman's overview of these issues, check out my off-the-cuff summary below.

Network Neutrality

It wasn't long that a new issue arose to sit beside the proposed guarantee for municipalities to own and operate networks. The issue of Net Neutrality reared its head.

Incumbent ISPs had begun to complain that "bandwidth hogs" placed undue burdens on their networks by consuming large amounts of bandwidth from applications like video downloads and uploads and peer-to-peer file sharing. They suggested that network operators should have the right to charge such consumers different rates, but more importantly, they should be able to charge content providers like Google and others different rates to guarantee premium service levels and speedy delivery of their content. Consumer advocates warned that this would violate the spirit of the Internet, which was designed to be a dumb distributer of undifferentiated bits of data, which had until then ensured that all data was treated the same. The issues of Net Neutrality emerged.

- After all, didn't consumers already pay for Internet access in the fees that they paid to their ISPs? Additional fees charged by operators would be "double dipping."
- And what would happen when network operators discriminated by delivering their own content first?
- Or what if only large companies could guarantee delivery of their content by paying those fees to operators - a two-tier Internet would result, where good quality content delivery would be expected from large well-heeled providers like Google, but smaller companies who would not be able to pay a separate fee. Network operators would offer slower service and smaller content companies would watch their market share decline, as consumers showed a preference for the faster but more mainstream content.
- Much of what made the Internet special, its widely diverse and off-beat content offerings, would fade under this scenario, and the Internet would start to resemble the broadcast networks with their limited, mainstream content offers.

In summary then, Proponents of Net Neutrality argued that Net Neutrality legislation was needed to ensure that network operators would not abuse their positions of power and discriminate in how they delivered content. It was needed to preserve the Internet as a neutral distributor of content. Opponents of Net Neutrality argued that Net Neutrality legislation would put undue burdens on network operators, who would face increasing costs but have no offsetting fees or revenue sources to allow them to stay financially healthy.

Statewide and National Franchise Fees

Interested in entering the cable TV market to compete with cable providers in offering lucrative video services, telecommunication companies began to argue against the current system of local municipal franchises, where a large company would have to negotiate separately with hundreds or thousands of city governments for the right to offer TV service in a local market. The costs would be huge.

To offer competition and lower rates for consumers, telecom companies argued, it would make more sense to have franchise fees standardized over entire states, or better still, over the entire nation. This would eliminate a significant barrier to entry and increase competition, opening up closed markets. Cable companies objected that they had had to win all these municipal franchise agreements, and would be bound by a patchwork of agreements and fee structures, while the telecommunication companies enjoyed a new, streamlined system. Most notably in Texas in 2005, the telecommunication companies prevailed with a statewide franchise agreement law.

Spectrum Policy

The FCC regulates who can use which sets of radio wavelengths, how they can use them and where they can use them, in what locations - together, these regulations come under the heading of Spectrum Policy. For the uninitiated, spectrum is a physical trait of electromagnetic radiation. On the low end is sound , this graph below is a great introductory overview.

electromagnetic spectrum.png

More to the point, here below is the multi-colored eye chart of Frequency Allocations of Radio Spectrum produced by the US Department of Commerce, National Telecommunications and Information Administration, Office of Spectrum Management, available for download in a PDF here. As you can see (in your downloaded, blown up version, not in the miniscule eye chart below), unlicensed spectrum bands are in dark green, labeled Amateur Band - look for the Wi Fi spectrum band at 2.4 GHz.

Frequency Allocation Eye Chart.png

One key issue of spectrum policy is how much spectrum to devote to unlicensed use, based on the success enjoyed with Wi Fi equipment, creating a new industry and spurring innovation out of what had been considered "junk band" frequency, the province of baby monitors and microwave ovens. Should the FCC make more such spectrum available, or sell the spectrum licenses like so much valuable real estate, to raise funds for the federal government?

That issue jibes with another issue up for timely discussion in this area: the allocation of the 700-MHz band of spectrum licenses held for the longest time by television broadcasters. As part of the move to digital television, these bandwidth are no longer needed by those broadcasters and so they're being reallocated to new users. This is an attractive band for radio data transmission because the signals are better able to penetrate solid objects and so network designers can use fewer devices to cover more territory - these licenses make for a more efficient wireless broadband network, and more efficiency means lower costs.

There is much speculation on whether this auction of 700 MHz spectrum licenses coming up in early February 2008 will result in one of two potential outcomes: Option A - one of the incumbent players wins the auction and rights to the spectrum, in which case they may set it aside to keep it away from competitors - meaning less competition and maintenance of the status quo. Or, Option B - a new player (like Google or Apple) will spend to gain the licenses and use them to enter into competition with traditional telecom providers - meaning more competition and a challenge to the status quo.

Posted on October 22, 2007 at 11:53 AM | Comments (0)

Where There's Smoke ... Part V Summing it Up

I spent a good part of yesterday connecting a Number of Dots to better understand where we are in the current state of broadband regulation and management in the United States to better see the direction we're heading.

See the dots here and connect them yourself...this is no exhaustive bit of reporting here, just a reflection on a pattern of activity that should be disturbing to anyone who is watching. A preliminary conclusion is that nobody is really in charge; our government is ineffective at best, hopelessly compromised at worst; and we have an industry on autopilot, increasingly consolidating its gains and growing ever stronger.

Part I Open Eyes & Ears Tell a Story, If We Listen and Watch for a rundown on 35 years of telecommunication deregulation that have failed to bring about competition.

Part II One State Example goes into detail on how the large amount of lobbying dollars spent by telecommunication giants AT&T, headquartered in San Antonio, and Verizon give the big telco lobby an overwhelming presence at the State house and in local politics.

Part III FCC Regulatory Relief provides background on the Federal Communication Commission (FCC) and its singular ineffectiveness in building a national broadband infrastructure through its strategy of giving regulatory relief to large cable and telecom interests.

I finished the series with Part IV How Close is Too Close? a long discussion on the current national debate concerning the effort in the US Senate to revise the FISA law, including the potential to grant AT&T and Verizon retroactive immunity from prosecution for violating the law when they opened up their private customer records to the federal government without a warrant.

I realized this morning why these dots when connected cause me such heartburn.

1. The Internet is not like other networks.
2. The Internet ties everything together, providing our society with such compelling efficiencies that over a short period of time we have been drawn to place more and more of our data and daily business operations onto the Web.
3. The Internet has become dramatically more important than any one of the previous networks that the FCC regulated, from telephone to cable to radio stations to handheld ham radios, and its speed of development and adoption dwarfs those other networks and industries.
4. When the dominant network that we depend upon utterly, with access to all of our digital information and private secrets, is operated by a handful of companies in bed with a federal government that plays fast and loose with the laws, has an unprecedented preference for secrecy, and plays the Fear card at will, we are truly staring into George Orwell's 1984 Society as never before...

I was rattled there for a second. The good news is we're not there yet. It's more a general sense of dread of what could be if we continue down this path we're on.

There's more to the story, so let's wind things back and talk some more about a more complete view of the picture.

Way, Way Back

In the old, old days when the 1934 Act was passed, we used the telephone to talk on, AT&T held sway, and we listened to the radio networks for entertainment. The big issues were how to get telephone service out to the rural areas and how to make sure that analog radio signals didn't stomp on each other.

Way Back

Television came along, and decency standards reared their heads. Soon, cable companies built up to provide service where reception was poor. Three national TV broadcast networks served up standard fare to a mass national audience.

A While Back

Cable became more prominent as specialty content networks started offering alternatives to the national broadcast networks. Cable companies negotiated local municipal franchises with local governments, who cut deals to get some public revenue from franchise fees. Generally, one telephone company regulated by a state commission (as well as the FCC) provided service to a community. Cable meant TV and Telephone meant phone calls. Long Distance was regulated by the feds, then deregulated and competitive options sprang up, lowering the costs of calling outside your local area.

Cellular phones began to show up, but they were expensive, so many people just got pagers. In time the capabilities of cell phones began to go up, as prices began to fall.

Telephone companies began to offer high speed data service, but it was very expensive and so only businesses bought lines from the telephone companies. The Baby Bells, recently unbundled from AT&T, talked about a day when they would provide television services over high speed data lines and negotiated rate freezes with regulatory commissions to help finance that vision.

More Recently

Customers could buy dial-up modems that would let them use their phone lines and they could buy service from new companies like AOL or Prodigy to get onto the new Internet and the World Wide Web. It was a novelty to many, speeds were slow, and WWW was ridiculed as meaning "World Wide Wait." But then, Cable companies started offering a new service that provided "always on" Internet at much higher speeds as a premium add on, which came to be known as Broadband. As the curious signed up, they became hooked with a much better service and the Internet boom began to make headlines.

Fairly Recently

Seeing all the revenue that cable companies were getting, telecom companies launched aDSL services, which provided "download" speeds much faster than dial-up, but still slower than cable, and customers could use most of the available capacity to download websites and "surf" the Web. Telecom companies managed their networks and Internet Service Provider (ISP) offers so that "download" was faster, but "upload" speeds were quite slow, because they figured that few people needed to send data that way, mostly e-mails with small file sizes. DSL began to eat into Cable broadband and represent a threat. For the first time, cable and telecom companies were really in competition with each other. But often, that meant that consumers could pick from one of two options, both priced about the same, generally cable broadband was still priced a little more in most markets because it was faster.

On the sidelines, voice over Internet Protocol - VOIP - was being developed and launched. Getting your phone service over your broadband connection was primarily seen as a commercial service, but VOIP startup Vonage raised tremendous capital which it began to spend on TV ads to go after consumer business. Combined with customers who were using their cell phones and dropping their fixed telephone service, telephone companies began to see a drop in their steady Plain Old Telephone Service (POTS), a mainstay of their corporate revenue. A troubling development for a telecom company.

Cable companies saw increasing competition from the two main satellite TV companies, Dish Networks and DirecTV, which made original inroads in rural areas where cable was not avaialble, but then began to sell in urban markets in direct competition with wired cable companies, which had been enjoying steady price increases.

Cellular telephone companies offering very similar services and facing price competition in national markets began to consolidate, even as they enjoyed record subscriber growth based on flat-pricing plans for voice service. They tried to get customers interested in data plans, but customer acceptance remained weak.

How much of this fairly recent private sector competition and market development did the FCC oversee, or contribute to? Not much. One of the principal means of interaction by the FCC was to auction off bands of radio spectrum licenses for vast sums of money, which kept much of the available spectrum licenses in the hands of a small number of well capitalized telecommunication companies. In other words, they limited competition in wireless markets by focusing on spectrum as a primarily a source of revenue for the federal government, rather than a tool to create a diverse market of wireless service providers.

Most Recently

Owning a dominant share of the ever growing broadband market, cable and telecom companies acted in unison to keep municipalities interested in new municipal wireless and FTTH projects out of "their" markets. They supported state legislative initiatives in 2004 and 2005 to ban municipal ownership, and in some cases, to ban even privately provided networks in partnership with municipalities. When most of those measures were defeated, the municipal ownership issue shifted to the Congress, and three other key issues began to focus the debate.

That will be the focus of the next post...

Posted on October 22, 2007 at 10:13 AM | Comments (0)

Where There's Smoke ... Part IV How Close is Too Close?

We are on the verge of seeing something we don't see too often: a possible filibuster in the US Senate from a Senator who is also a presidential candidate. Will this conflict actually come to this?

If it does, it should shine a bright light on the role that telecommunications companies play in national security, for the issue at hand is the cooperation that AT&T and Verizon gave to the Bush administration when they released thousands of private phone records of American citizens without the required court orders.

Interestingly, the third telecommunications "giant," Quest, refused to cooperate and turn over customer records. But here is where it gets more interesting...Quest's former CEO Joe Nacchio, not normally a darling of civil rights protectors, has claimed in other court documents in another suit that his company's refusal to cooperate with the feds ultimately led to the loss of lucrative federal contracts in retaliation ....as if there was some sort of quid pro quo at work here? Huh?

Hmmm, this could get more and more interesting, because the stakes are so high, the issue is becoming ever more public, and it may well result in public reporting of issues that normally stay in the background - namely, the back room agreements and operations of telecom giants working with the federal government.

So, let's recap... from the left-leaning and popular blog of attorney Glen Greenwald

Just think about what is really happening here. AT&T's customers sued them for violating their privacy in violation of long-standing federal laws and for violating their Fourth Amendment rights. Even with the most expensive armies of lawyers possible, AT&T and other telecoms are losing in a court of law. The federal judge presiding over the case ruled against them -- ruled that the law is so clear they could not possibly have believed that what they did was legal -- and most observers, having heard the Oral Argument on appeal, predicted that they will lose in the Court of Appeals, too.

So AT&T and other telecoms went to Washington and - led by Bush 41 Attorney General (and now Verizon General Counsel) William Barr, and in cooperation with their former colleague, Mike McConnell - began paying former government officials such as Dan Coats and Jamie Gorelick to convince political officials to whom they give money, such as Jay Rockefeller, to pass a law declaring them the victors in these lawsuits and be relieved of all liability - all based on assertions that a court of law has already rejected. They are literally buying a judicial victory in Congress - just like Carothers warned that third-world countries must avoid if they want to become functioning democracies under the "rule of law" ("Above all, government officials must refrain from interfering with judicial decision-making"). AT&T, other telecoms, buy victory in lawsuits

Here's the "money quote" from Federal Judge Vaughn Walker ruling on Tash Hepting et al, Plaintiffs vs. AT&T Corporation et al, Defendants:

Because the alleged dragnet here encompasses the communications of "all or substantially all of the communications transmitted through [AT&T's] key domestic telecommunications facilities," it cannot reasonably be said that the program as alleged is limited to tracking foreign powers. Accordingly, AT&T's alleged actions here violate the constitutional rights clearly established in Keith. Moreover, because "the very action in question has previously been held unlawful," AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal. Accordingly, the court DENIES AT&T's instant motion to dismiss on the basis of qualified immunity.

Upon learning that a pending bipartisan compromise on the reworked FISA bill that included granting retroactive immunity for telecommunications companies would soon be coming out of the Senate Intelligence Committee, Democratic Senator and presidential candidate Christopher Dodd said he would place a "hold" on the bill to fight the immunity provision. An explanation on "putting a hold on a bill" here.

But there's more - it seems that Senate Majority Leader Harry Reid is not altogether pleased with this development and may not support the "hold" tactic of his colleague and fellow Democrat, which would be a gross violation of Senate protocol and could lead to an effective call of a bluff, having Sen. Dodd actually filibuster the bill if he wants to prevent it from going out to the floor for a vote. Say What? Huh? Holds typically are honored in the Senate regardless of party affiliation, and filibusters are usually the work of the minority party - seems that Down is Up in the Alice in Wonderland world of the Senate.

This kind of crap is a big part of why Congress gets an historically low approval rating of 11%. It's so confusing, and the Democratic Majority Leader Sen. Harry Reid putting his own colleague in jeopardy? I sure don't get it.

But this controversy has led to news items like this, Wired: Democratic Lawmaker Pushing Immunity Is Newly Flush With Telco Cash, where recent political contributions by executives from Verizon and then AT&T to Intelligence Committee Chairman Senator Jay Rockefeller (D-W Va) are detailed, implying a connection. It all is puzzling ....

And then there's these curious comments from Former Quest CEO Nacchio, mentioned above, described in full below...

A former Qwest Communications International executive, appealing a conviction for insider trading, has alleged that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified National Security Agency program that the company thought might be illegal.

Former chief executive Joseph P. Nacchio, convicted in April of 19 counts of insider trading, said the NSA approached Qwest more than six months before the Sept. 11, 2001, attacks, according to court documents unsealed in Denver this week.

Details about the alleged NSA program have been redacted from the documents, but Nacchio's lawyer said last year that the NSA had approached the company about participating in a warrantless surveillance program to gather information about Americans' phone records.

In the court filings disclosed this week, Nacchio suggests that Qwest's refusal to take part in that program led the government to cancel a separate, lucrative contract with the NSA in retribution. He is using the allegation to try to show why his stock sale should not have been considered improper.

Nacchio was convicted for selling shares of Qwest stock in early 2001, just before financial problems caused the company's share price to tumble. He has claimed in court papers that he had been optimistic that Qwest would overcome weak sales because of the expected top-secret contract with the government. Nacchio said he was forbidden to mention the specifics during the trial because of secrecy restrictions, but the judge ruled that the issue was irrelevant to the charges against him.

Nacchio's account, which places the NSA proposal at a meeting on Feb. 27, 2001, suggests that the Bush administration was seeking to enlist telecommunications firms in programs without court oversight before the terrorist attacks on New York and the Pentagon. The Sept. 11 attacks have been cited by the government as the main impetus for its warrantless surveillance efforts.

The allegations could affect the debate on Capitol Hill over whether telecoms sued for disclosing customers' phone records and other data to the government after the Sept. 11 attacks should be given legal immunity, even if they did not have court authorization to do so.

Spokesmen for the Justice Department, the NSA, the White House and the director of national intelligence declined to comment, citing the ongoing legal case against Nacchio and the classified nature of the NSA's activities. Federal filings in the appeal have not yet been disclosed.

In May 2006, USA Today reported that the NSA had been secretly collecting the phone-call records of tens of millions of Americans, using data provided by major telecom firms. Qwest, it reported, declined to participate because of fears that the program lacked legal standing.

In a statement released after the story was published, Nacchio attorney Herbert Stern said that in fall 2001, Qwest was approached to give the government access to the private phone records of Qwest customers. At the time, Nacchio was chairman of the president's National Security Telecommunications Advisory Committee.

"Mr. Nacchio made inquiry as to whether a warrant or other legal process had been secured in support of that request," Stern said. "When he learned that no such authority had been granted and that there was a disinclination on the part of the authorities to use any legal process, including the Special Court which had been established to handle such matters, Mr. Nacchio concluded that these requests violated the privacy requirements of the Telecommunications Act."

Stern could not be reached for comment yesterday. Another lawyer for Nacchio, Jeffrey Speiser, declined to comment on whether the call-records program was the program discussed at the February 2001 meeting.

In a May 25, 2007, order, U.S. District Judge Edward W. Nottingham wrote that Nacchio has asserted that "Qwest entered into two classified contracts valued at hundreds of millions of dollars, without a competitive bidding process and that in 2000 and 2001, he participated in discussion with high-ranking [redacted] representatives concerning the possibility of awarding additional contracts of a similar nature." He wrote, "Those discussions led him to believe that [redacted] would award Qwest contracts valued at amounts that would more than offset the negative warnings he was receiving about Qwest's financial prospects."

The newly released court documents say that, on Feb. 27, 2001, Nacchio and James Payne, then Qwest's senior vice president of government systems, met with NSA officials at Fort Meade, expecting to discuss "Groundbreaker," a project to outsource the NSA's non-mission-critical systems.

The men came out of the meeting "with optimism about the prospect for 2001 revenue from NSA," according to an April 9, 2007, court filing by Nacchio's lawyers that was disclosed this week.

But the filing also claims that Nacchio "refused" to participate in some unidentified program or activity because it was possibly illegal and that the NSA later "expressed disappointment" about Qwest's decision.

"Nacchio said it was a legal issue and that they could not do something that their general counsel told them not to do. . . . Nacchio projected that he might do it if they could find a way to do it legally," the filing said.

Mike German, policy counsel for the American Civil Liberties Union, said the documents show "that there is more to this story about the government's relationship with the telecoms than what the administration has admitted to."

Kurt Opsahl, senior staff attorney for the Electronic Frontier Foundation, said: "It's inappropriate for the government to be awarding a contract conditioned upon an agreement to an illegal program. That truly is what's going on here."

The foundation has sued AT&T, charging that it violated privacy laws by cooperating with the government's warrantless surveillance program. Former CEO Says U.S. Punished Phone Firm - washingtonpost.com

Posted on October 21, 2007 at 11:25 PM | Comments (0)

Where There's Smoke ... Part III FCC Regulatory Relief

At the federal regulatory level, it doesn't take long to lose your way unless you are an expert. Not only is there the arcana of administrative case law and politics. Then there's the technical aspects. It takes a special kind of worker to keep track of electromagnetic radiation issues, spectrum propagation, market creation and economics. I'm nodding off even as I type these words, just one paragraph into this post...

Here I'll describe some background on this important federal agency and then detail some recent feedback on their performance in promoting a competitive broadband infrastructure for our nation.

From the 1934 Communications Act of 1934, as amended by the Telecommunications Act of 1996:

For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is hereby created a commission to be known as the ''Federal Communications Commission,'' which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this Act.

The Federal Communications Commission (FCC) is comprised of five commissioners appointed by the President to five year terms, with a limit of three from any one political party. So you can imagine the politics involved on this board. Thus my recent musings on how frustrating it must be to be in the minority on this particular body (See The Eternal, Infernal Disharmony in Being Half-Pregnant). From the website, here's a description of the seven operating bureaus and how they work.

Bureaus and Offices

The Commission staff is organized by function. There are seven operating Bureaus and ten Staff Offices. The Bureaus' responsibilities include: processing applications for licenses and other filings; analyzing complaints; conducting investigations; developing and implementing regulatory programs; and taking part in hearings. Our Offices provide support services. Even though the Bureaus and Offices have their individual functions, they regularly join forces and share expertise in addressing Commission issues.

1. Consumer & Governmental Affairs Bureau - educates and informs consumers about telecommunications goods and services and engages their input to help guide the work of the Commission. CGB coordinates telecommunications policy efforts with industry and with other governmental agencies - federal, tribal, state and local - in serving the public interest.
2. Enforcement Bureau - enforces the Communications Act, as well as the Commission's rules, orders and authorizations.
3. International Bureau - represents the Commission in satellite and international matters.
4. Media Bureau - regulates AM, FM radio and television broadcast stations, as well as cable television and satellite services.
5. Wireless Telecommunications - oversees cellular and PCS phones, pagers and two-way radios. This Bureau also regulates the use of radio spectrum to fulfill the communications needs of businesses, aircraft and ship operators, and individuals.
6. Public Safety & Homeland Security Bureau - addresses public safety, homeland security, national security, emergency management and preparedness, disaster management, and other related issues.
7. Wireline Competition Bureau - responsible for rules and policies concerning telephone companies that provide interstate, and under certain circumstances intrastate, telecommunications services to the public through the use of wire-based transmission.

The FCC was created in 1934, back in another era of radio and wire line communications and its task has evolved with technology advances. This part of the website has some good general information on the scope of the commission's activities. Consider this:

The FCC was established in 1934 by the Communications Act to assert control over the growing field of communications. In its first year, the FCC regulated a broadcast business which then consisted of 623 radio stations and a telephone industry with 14 million phones. The industry has grown to more than 25,000 TV and radio stations in 2001, and more than 192 million phones in 2000. The percentage of households with more than one phone line increased from 3 percent in 1988 to 29 percent in 1999. Washington Post TechNews, February 2003

Some challenge the need to continue the FCC, while others wish they were more intense in their regulatory function. With a budget of over $300 million and nearly 2000 employees, the question arises of how a regulatory agency continues to grow in size even as the areas they oversee are moving forward into deregulation. See this argument from 2000 for reform of the FCC, published by the Heritage Foundation.

So how does their track record look after all these years?

Well, not so good recently.

They got dinged by a September 2007 GAO Report for being too chummy with those they regulate (See Formal Rulemakings, Informal Rule Breakings: Our Federal Government At Work on Our Behalf).

My key position on their track record must then be this: Even as the FCC is tasked to look out for the public interest, as described in their charter above, the agency continues to relax regulations on telecommunication incumbents in the stated hopes of improving broadband infrastructure, yet in the face of a lack of results, even significant record that relaxation of regulations has not been successful in the past - continuing a pattern of actions that don't produce the intended results is neither rational nor sound policymaking. There must be something else going on...

Most recently, they again voted along party lines to relax regulations on AT&T in hopes of stimulating investment in broadband...they do keep trying.

AT&T's competitors, including Sprint Nextel Corp. and XO Holdings Inc., have vigorously lobbied federal regulators and policy makers to oppose such relief because they said competition would suffer in the broadband market. The FCC, which had until midnight Thursday to make a decision, voted 3-2 for AT&T's petition, which was originally filed July 13, 2006. FCC Chairman Kevin Martin said in a statement that removing "overly burdensome regulations" will enable AT&T to invest and deploy more broadband services. But the agency's two Democrats disagreed with the decision, saying the evidence to grant relief was "altogether underwhelming." They added granting relief could lessen competition in certain areas. MSNBC, Oct 12, 2007: AT&T wins relief from government price caps on high-speed Internet access for rivals

FCC Chairman Kevin Martin makes a claim that regulatory relief will lead to more investment in broadband infrastructure and services, but he cannot cite a past history with AT&T to demonstrate why he places such faith in this plan, nor does he tie any stringent requirements or milestones for deployment as conditions to grant such relief - he takes it on faith that they will do what they say, when history shows the opposite, at least indicating that some amount of skepticism is in order. The only conclusion I can make, you tell me if you differ - there are other motivations at work among the majority on the FCC board that drive such decisions.

Posted on October 21, 2007 at 09:04 PM | Comments (0)

Where There's Smoke ... Part II One State Example

This post continues from my previous post, which laid the groundwork for how our government and telecommunication companies work together. Click here to read that post. Perhaps it will help to look a little closer at one state example - consider then, the situation in my own state, Texas.

State Legislatures and Regulatory Commissions operate in a climate of intense pressure from telecom lobbyists to craft policies, enact laws, and make regulations that more often than not, overwhelmingly favor big telecom.

As you can see from this August 2006 document produced by the group Texans for Public Justice, entitled "Austin's Oldest Profession: Texas Top Lobby Clients and Those Who Service Them," the facts are dramatic. This well prepared document quoted extensively in this post shows how large telecommunications corporations (i.e., ATT, now including SBC, and Verizon) leave no stone unturned and are very thorough in their work, from the local level all the way up to the State Capitol.

It's a pretty clubby atmosphere among lobbyists and legislators and their staffs, as well as among the regulatory community. I spent eight years as an administrative employee of the Texas Senate (Texas Senate Research Center), two years doing regulatory interface work (lobbying) for a large regulated investor-owned electric utility, one legislative session as a registered lobbyist for a telecommunications startup owned by that same electric utility and finally, I worked the hallways during a critical month period at the end of the 2005 session when it looked like they might ban municipally-owned broadband networks, when I represented a manufacturer of wireless equipment.

I can tell you that in each instance, there were terribly long hours spent just waiting around - whether in conference rooms or hallways, there was plenty of time to get to know everyone as we waited for elected officials and state agency officials to meet, both in public meetings and while they were behind closed doors. And while the paid interface folks hang around and wait, they get to know each other. And then there is the official and unofficial time they spend visiting with legislative and regulatory staff and elected and appointed government leaders.

Lobbying is a classic insider's game, a very well paid job for a few, as this report details, and often quite a grind for the rest. It's a sales job where what you sell are ideas, information, and proximity, where everyone watches each other and gossip flies fast and thick. There are lunches and dinners at restaurants where everyone knows everyone else and keeps track of who's meeting with whom. There are endless fund raiser cocktail receptions where staff mingle for the free drinks and buffet and the professionals show up to make an appearance or drop off a check for a client. It's all quite above board much of the time and generally very pleasant, but also a tremendous amount happens behind the scenes, and after a while, it's not at all as glamorous as it might look from the outside looking in. It can also be very intense and frustrating, and very exciting, but also tremendously dull. But year in and year out, folks get to know and respect each other, and from my perspective, I often felt as if on the outside looking in, because there was always a set of lobbyists who had far better connections and access than I did, and I'd put the telecom folks in that group.

It's these connections that come to be valuable over time, that and the institutional knowledge about how things get done. The money goes to these insiders who have access to private conversations, to the golf outings and the lunches and the late night work sessions where bills get written.

Texas Lobbying Goes Up.png

This table and graph above show Texas' Escalating Lobby Spending, (1995-2005). Note the dramatic increase in lobby expenditures over the course of a decade, in just this one state, where the contract amount nearly doubles, with number of contracts and clients up 50% over the ten-year period, while the number of lobbyists stays about the same. Granted, Texas is at the peak, right up there with California for most active lobbying state (see below).

State Lobbying.png

And who is at the top of the heap when it comes to lobbying in Texas? Oil and Gas, Health Care, and Communications. But among individual corporate efforts, AT&T (incl SBC) and Verizon tradtionally come in at or near the top.

Million Dollar Clients.png

Sixteen clients spent more than $1 million apiece by the end of the 2005 legislative session on 517 lobby contracts. As it has done each year for at least a decade, SBC Corp. (now AT&T) flexed Texas' largest lobby muscle, spending up to $7 million on 129 paid contracts. In addition, several dozen SBC employees reported that they lobbied for their employer without compensation. One of these pro bono lobbyists was SBC Senior Vice President John Montford, a former state senator.

SBC now has merged with AT&T, which spent another $1.1 million lobbying in Texas in 2005. Phone giant Verizon also spent more than $2 million. Boasting more lobbyists than Texas has lawmakers, these phone companies sought to deregulate what they can charge for the local phone monopoly that they control across much of the state. At the same time they demanded entry into television markets - without paying the local franchise taxes paid by the cable industry. This gambit floundered in the regular session, partly due to opposition from cable companies and municipal governments (three municipal interests surpassed $1 million in lobby spending). Yet the phone giants pushed their legislation through in one of the special sessions that Governor Rick Perry ostensibly convened in 2005 to tackle Texas' school-funding crisis. Austin's Oldest Profession, II. Lobby Clients, C. Million Dollar Clients

Lucky for my motley consumer interest group back in 2005, the telecom firms decided that passing the statewide franchise issue was far more important to them than banning the right of a municipality to own its own broadband facilities, or else we most likely would have seen the state legislature enact the ban. Despite our best efforts, our passion, our rational approach, not to mention the justice of our cause, there would have been little we could have done to stop this lobbying juggernaut if they had been serious. They're used to getting their way in this environment, even more so than in Washington, DC, where they have relatively less influence, given all that is going on at the national level.

In Texas, every legislator is quite aware that AT&T is headquartered in San Antonio, that they are a top campaign and lobby spender with a history of winning, and that their lobbying prowess is not worth going up against, as there are very real consequences from being on the wrong side of powerful interests. There's just too much to lose from most perspectives, so these guys win more often than not, sometimes even before they begin the fight.

Posted on October 21, 2007 at 08:03 PM

Where's There's Smoke ... Part I Open Eyes & Ears Tell a Story, If We Listen and Watch

There's Fire - Big Telecom and Big Government - A Match Made in Heaven? Hell?

I resist taking on this issue because after years in state government, I just assume that big business spends its money to buy big government influence and it's just the way of the world. Call me cynical. I don't expect the world to change overnight. Part of this acceptance lies in my long-held belief in the system - the press and a measure of public servants and good government types would keep things in check. The system was in harmony and the overall result was on balance good for the public, if weighted more to the side of special interests. Besides, I could do little about it, so I accepted it and went about my business.

Besides, I think going down this path is an endless endeavor with little hope for resolution in the near term - it is, with all due apologies to the more racially sensitive among you, a Tar Baby: a trap that grabs one, and one becomes more entangled the more one struggles. Nevertheless, here I go.

Because I perceive that now there's smoke coming from the kitchen where our laws and policies are being cooked up. And where there's smoke, there must be fire, as the saying goes. The system is out of balance, the pendulum has swung too far, and things are getting out of hand.

When it comes to broadband policy and strategy, I don't think we can even begin to talk about these complex issues as a national community without including in the conversation those same government regulators, lawmakers, and large cable and telecom companies who some consider the Root of All Evil. I'm not one of those types, but I do believe in calling things like I see them. We need to start by bringing all this dirty linen out into the open. I'll try to be dispassionate, so bear with me.

If you're part of the Reality-based community, you don't say "What Smoke?" or "That's just Smog." You don't deny what your eyes see and what your brain tells you.

We must at least acknowledge that we have an underlying problem with our system. Before we can have an Open discussion on our collective broadband future, or even begin to craft solutions and a policy and a strategy that serve all interests, we first have to have Trust. We have to have Truth as the foundation for our discussion and we have to be Inclusive and engage all the parties. We have to be Honest.

Without those foundational elements, we'll continue to talk at cross purposes on the surface, casting blame and pointing fingers, while things stay the same as always in the background and under the surface. That's what I've seen so far, at least.

It's not naive either to state the need for these preliminary conditions for a dialogue. Rather, it's an acknowledgment of the depth of our problems, a statement of reality, to say at some point - and that point has long since arrived:

"As a nation we have to begin to address the climate of political influence in our society and its impact on 1) general principles for governmental regulation and oversight; 2) the relationship between government officials and telecom companies, their points of view, the resolution of issues and the impact on the structure of the industry; and 3) the actions of government officials who regulate and oversee these companies and the decisions they make."

To continue to sweep these issues under the rug while trying to move forward with solutions is to deny reality and live in a fantasy land. It's real, folks, Denial ain't just a river in Egypt, and something can and should be done about it. To begin a discussion on policy without clearing the air first and hauling these issues out into the open is to try to run a marathon while dragging a bag of bricks behind. You can do it, but it's not the recommended way, and it has a predictable outcome. You will fall behind all the other less encumbered runners in the race.

When one doesn't know where to begin, sometimes a place to start is just to jump in and offer impressions that are logical and reflect Truth as one sees it. I'll start with the argument I have heard from the Incumbents who want to keep on working incrementally.

The Argument for Continuing the Status Quo

The message I've heard from Big Telecom (and Cable) companies that currently provide the bulk of broadband services, when speaking to government regulators and lawmakers at all levels, at least remains consistent:

1. "We ask you to take care of our industry issues first, by relaxing regulations and relieving price controls, and we will then invest that extra money in broadband infrastructure and provide the services the nation needs. Trust us. It's the only efficient way that you will get what you want."
2. "Repeat #1 until you no longer agree with us and give us what we ask for."

But the facts don't support such arguments; indeed, regulators and lawmakers have done just what the industry has asked numerous times and we have not got the world-class fiber network they sought, nor competition, nor even robust wireless broadband. Instead, Cable broadband and DSL over existing legacy networks are offered in limited areas at limited speeds and at high enough prices by a handful of companies so that only parts of the nation can access and/or afford broadband that does not compare with world-class standards. Verizon plans Fiber to the Home in limited urban areas over a lengthy deployment schedule, and AT&T plans Fiber to the Curb over an even more tardy schedule.

It doesn't take a lot of digging to figure out this situation - the message is apparent with the barest of research and a modicum of common sense.

The dots are there to connect, if one only looks. This and subsequent posts are anything but an exhaustive reporting of the issues. Rather, consider them a snapshot to make the point that just a preliminary connecting of some dots I've seen over just the past few weeks makes a strong case for the most casual, but logical observer, if not a biased industry insider with a motive to continue the status quo.

The Deregulation of Telecommunications has not led to a Competitive Market, despite or because of efforts of regulators and lawmakers; it has led instead to the consolidation of market power and the entrenchment of a large corporate presence in telecommunications with very strong influence over government at all levels.

Consider Dots Number One-Five. Thirty-five years of effort led to a transfer of power and assets, from government to business.

1972. "It's broken, we need to do something." The US Justice Department files suit against AT&T to address issues of monopoly and changing technology.
1984. "We've reached a compromise - we will break up the monopoly into smaller monopolies and a larger company that we will let into the computer business." The Justice Department finally reaches a settlement with the national telecom monopoly, AT&T aka "Ma Bell." See the Bell System Divestiture Decision.
1996. "We will deregulate the Regional Bell Operating Companies (RBOCs) and bring about competition." See the Telecommunications Act of 1996.
1997. We'll create a fund (broad-based user fee/tax) to ensure that all areas of society have access to telecommunications in the absence of monopoly regulation, to be administered by a select few large companies." See Universal Service Fund.
2005. "We will separate "information services" from "telecommunication services," placing them outside of traditional regulation, and we will let information network owners, both Cable and DSL, close their networks to competitors - deny access." See Pass the Brand X Please.

In successive waves, various state and federal agencies, regulatory bodies, courts, and legislatures have sought to move our nation from a regulated monopoly model to a competitive market model, and at each step, their efforts have been stymied by a commercial industry intent on retaining control and making the most money for its shareholders. Can't blame them, they are playing to win. And all along, watchdogs, critics, and government leaders themselves have voiced misgivings and expressed outrage, to no avail. In the end, like a good movie or story moving from Act One to Act Three, we've ended up about where we've started, with some interesting action along the way.

"It Won't Work, Don't Do It ... Oh, Sh^&*t!"

The Telecommunication Competition and Deregulation Act of 1995 is the worst bill to come along in 60 years. While deregulation of media has been slowly taking place for 20 years, this bill would open a whole new era in monopolistic control of mass media. Al Gore claims that the House and Senate versions of the bill represent a giveaway to America's largest corporations: "Instead of being a commitment to the future, these bills--especially the House bill--represent a contract with a hundred companies. Instead of promoting investment and competition, it promotes mergers and concentration of power."

The bill would allow a single owner to control television stations covering 35 percent of all American homes, plus an unlimited number of radio stations in every community across the nation. It would allow this same owner to purchase newspapers and the cable system in every community, which could result in a single company dominating all news and information available to one-third of the nation. It would allow the Bell Operating Companies to buy into long-distance services before they have real competition--which almost guarantees increased rates. It would let cable and telephone companies buy out each other while removing the power of the states to regulate rates and services; a monopoly would exist in many communities and cable and telephone rates could soar. As Representative John Conyers (D., Mich.), former chairman of the House Government Operations Committee, told his colleagues on the House floor, "For American consumers, this is one big sucker punch." It will "cost our constituents, the consumers, a bundle." 1995: I'm Telling You, It Won't Work

"Whatever It Is You Were Trying To Do, I Don't Think It's Working."

In summary, the very slow implementation of the 1996 Act has resulted in a series of mergers in the telecommunications industry. The intent of the 1996 Act was to promote competition and the public interest. It will be a significant failure of the US political, legal, and regulatory systems if the interests of entrenched monopolists rather than the public interest as expressed by the US Congress dictate the future of the US telecommunications sector. Unfortunately, the lack of progress in the implementation of the 1996 Act during the last two years has been a victory for the incumbent monopolists rather than of the US Congress. If the present trend continues, the intend of the 1996 Act to open all telecommunications markets to competition will not become a reality. 1998: It's Not Working

"Man, Did Anyone See What Just Happened - How Did They Get Away With That?"

It is on the state level where one can find the greatest excesses of the Telecommunications Act. All 50 U.S. states and the District of Columbia contracted with their local telecommunication utilities for the build-out of fiber and hybrid fiber-coax networks intended to bring bidirectional digital video service to millions of homes by the year 2000. The Telecom Act set the mandate but, as it works with phone companies, the details were left to the states. Fifty-one plans were laid and 51 plans failed.

Failure is not foreign to the information technology business. Big development projects fail all the time and I have written several times about this and how those failures come to be and how they can be avoided. But I find it hard to remember any company or industry segment ever going zero for 51. This is a failure rate so amazing that any statistician would question the motives of those even entering such an endeavor. Did they actually expect to succeed? Or did they actually expect to fail? We may never know and it probably doesn't even matter, but one thing is sure: they expected to be paid and they were.

Over the decade from 1994-2004 the major telephone companies profited from higher phone rates paid by all of us, accelerated depreciation on their networks, and direct tax credits an average of $2,000 per subscriber for which the companies delivered precisely nothing in terms of service to customers. That's $200 billion with nothing to be shown for it.

In a Federal Communications Commission (FCC) report from 1994 there were requests from U.S. telephone companies to provide video dial-tone service at unprecedented levels. Bell Atlantic (now part of Verizon) wanted to install service to 3.5 million homes in its service area. Nynex (now also a part of Verizon) requested permission to install service to 400,000 homes. Pacific Bell (now part of AT&T) wanted to install service to 1.3 million homes. Ameritech (now part of AT&T) wanted to install service to 1.2 million homes. GTE (now part of Verizon) wanted to install service to 1.1 million homes.

Note that these applications were all prior to the Telecommunications Act of 1996 being passed, so they were covered under the prior 1934 Act. And by 1995 most of these applications had been withdrawn by the telephone companies, though the FCC oddly continued to act as though the applications were still valid. 2007: Not Only Did It Not Work, We Got Taken to the Cleaners

Over and over again, large telecommunication and media network (cable) companies ask for relief, they bargain with the government, they strike deals, and then they do it all over again, devoid of consequences. Lather, Rinse, Repeat.

And so here we are as 2007 winds down, nearly back to where we were in 1972, except that now the infrastructure that was viewed as a national treasure paid for by ratepayers by way of a regulated monopoly is now viewed as a sunk cost network asset owned by a set of private companies who can use it as they see fit, charge for it as they see fit, use it to thwart competition, and yet, still count on various tools of government support, whether it be funds or market protection, when they ask for it. And, we are no closer to having a national wired and wireless network to support high-speed data at state-of-the-art levels, with universal access and universal service pricing.

Some deal. "You're doing a heckuva job, Brownie."

Posted on October 21, 2007 at 02:07 PM | Comments (0)

Laws and Regulations

I'm not an attorney, so I would not pretend to offer you any legal advice in this section. Rather, I would suggest you consult with your own city government departments and recommend also that you consult with the Public Utility Commission in your state to determine if there are any special laws and/or regualtions that might apply.

Also, Jim Baller's comprehensive website is the best resource we've found to keep up to date on the changing public policy regarding municipal wireless broadband networks.

Posted on February 03, 2006 at 06:39 PM | Comments (0)