Recently in Regulation Category

Senate Approves New F.C.C. Member

Reuters: Senate Approves New F.C.C. Member: "Mr. McDowell, 42, has been a lawyer for Comptel, a trade association that represents telephone and Internet companies that compete against bigger carriers like AT&T and Verizon Communications."

Among the Tin Foil Hat Crowd

A study at MIT measured the effectiveness of alumninum foil helmets in blocking radio waves and suggests an unlikely rationale for at least one allocation of spectrum by the FCC: On the Effectiveness of Aluminium Foil Helmets: An Empirical Study:

Among a fringe community of paranoids, aluminum helmets serve as the protective measure of choice against invasive radio signals. We investigate the efficacy of three aluminum helmet designs on a sample group of four individuals. Using a $250,000 network analyser, we find that although on average all helmets attenuate invasive radio frequencies in either directions (either emanating from an outside source, or emanating from the cranium of the subject), certain frequencies are in fact greatly amplified. These amplified frequencies coincide with radio bands reserved for government use according to the Federal Communication Commission (FCC). Statistical evidence suggests the use of helmets may in fact enhance the government's invasive abilities. We speculate that the government may in fact have started the helmet craze for this reason

Unlikely? yes. Plausible?

The DC Circuit ruled today that the FCC exceeded its authority under its ancillary jurisdiction to enact a technological mandate for television receiving equipment that regulates with the use of broadcast information after than information has been received (aka the "broadcast flag"): American Library Association v. Federal Communications Commission (D.C. Cir. May 6, 2005).

I'm on my way out to an exam (Administrative Law, in fact), so here are some key snippets from the ruling:

On jurisdiction:

The Commission recognized that it may exercise ancillary jurisdiction only when two conditions are satisfied: (1) the Commission’s general jurisdictional grant under Title I covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities. See 18 F.C.C.R. at 23,563. The Commission’s general jurisdictional grant under Title I plainly encompasses the regulation of apparatus that can receive television broadcast content, but only while those apparatus are engaged in the process of receiving a television broadcast. Title I does not authorize the Commission to regulate receiver apparatus after a transmission is complete. As a result, the FCC’s purported exercise of ancillary authority founders on the first condition. There is no statutory foundation for the broadcast flag rules, and consequently the rules are ancillary to nothing. Therefore, we hold that the Commission acted outside the scope of its delegated authority when it adopted the disputed broadcast flag regulations.

On standing:

In response to our decision in American Library I, petitioners submitted a brief, accompanied by 13 affidavits from individual members and individuals representing their member organizations, to demonstrate their standing. These materials included an affidavit executed by Peggy Hoon, the Scholarly Communication Librarian at the North Carolina State University
(“NCSU”) Libraries in Raleigh, North Carolina, a member of petitioner Association of Research Libraries. Affidavit of Peggy Hoon, 3/29/05, ¶ 1. Ms. Hoon’s affidavit asserts that the NCSU Libraries assist faculty members who would like to make broadcast materials available to students in distance learning courses via the Internet. The affidavit states that the NCSU Libraries currently assist a professor in the Foreign Languages and Literatures Department make short broadcast clips of the Univision network’s program, El Show de Christina, available over the Internet on a password-protected basis for use in a distance-education Spanish language course. The affidavit alleges that Internet redistribution is essential to making such clips available. See id. ¶¶ 5-10. The FCC does not dispute that the NCSU Libraries’ activities are lawful. And as petitioners point out, if the regulations implemented by the Flag Order take effect, there is a substantial probability that the NCSU Libraries would be prevented from assisting faculty to make broadcast clips available to students in their distance-learning courses via the Internet.

There is clearly a substantial probability that, if enforced, the Flag Order will immediately harm the concrete and particularized interests of the NCSU Libraries. Absent the Flag Order, the Libraries will continue to assist NCSU faculty members make broadcast clips available to students in distance- education courses via the Internet, but there is a substantial probability that the Libraries will be unable to do this if the Flag Order takes effect. It is also beyond dispute that, if this court vacates the Flag Order, the Libraries will be able to continue to assist faculty members lawfully redistribute broadcast clips to their students.

In short, it is clear that, on this record, the NCSU Libraries have satisfied the requisite elements of Article III standing: injury in fact, causation, and redressability. Therefore, the Association of Research Libraries also has standing.

And the order:

Because the Commission exceeded the scope of its delegated authority, we grant the petition for review, and reverse and vacate the Flag Order insofar as it requires demodulator products manufactured on or after July 1, 2005 to recognize and give effect to the broadcast flag.

EDIT (5:10pm): My brain is fried, so here is Ernest Miller's post with analysis and links: Victory in Broadcast Flag Case! FCC Has No Authority Says Court

Brand X Reportage

Legal Times:  In Broadband Case, Justices Seem Attuned to Internet Services' Arguments: "In a high-stakes dispute over the regulation of Internet access, the Supreme Court struggled Tuesday over how much deference it should give to a 2002 Federal Communications Commission decision freeing cable modem providers from the rules that govern telephone companies."

Washington Post: FCC Ruling Limits Competition, ISP Tells Justices: "A Bush administration lawyer urged the Supreme Court to accept a 2002 Federal Communications Commission ruling that gave cable companies the right to bar rival Internet service providers from their lines, as the justices heard oral arguments yesterday in a case that could determine what choices are available to broadband subscribers."

Wired News: Will Cable Quell the Competition? "After listening to oral arguments in the controversial Grokster case Tuesday, the U.S. Supreme Court stayed firmly in tech territory as it considered whether cable operators should be forced to open up their broadband data pipes to competition."

AP: Justices Question Control of Cable Firms: "The Supreme Court on Tuesday questioned the tight control cable companies hold over high-speed Internet service in a case that will determine whether the industry must open up its lines to competitors."

The Industry Standard: Supreme Court asks why cable broadband lacks regulation: "During oral arguments, Supreme Court justices questioned how cable modem service providers can argue that broadband access and Internet functionality are an inseparable service when the FCC has required large incumbent telecom carriers to sell access to their broadband networks to competing Internet service providers (ISPs)."

Broadcasting, flagged

Today, the D.C. Circuit held oral arguments in ALA v. FCC, the court challenge to the FCC Broadcast Flag requirement. Briefly, the broadcast flag is a technoligical mandate that would require all hardware capable of receiving a DTV signal, including general purpose computers, to include circuitry that would prevent the redistribution of any digital broadcast flagged as protected.

Susan Crawford argues that the broadcast flag case is just as important as Grokster: "Like the Grokster case, the flag situation raises this question: can one industry force another to constrain new general purpose technologies in the name of copyright protection? Like the CALEA dispute (prompted by the demands of another great industry -- law enforcement), the flag represents an attempt to have high-tech innovators ask permission before innovating."

The ALA brief offers three challenges to the regulations:

  • The FCC lacks authority to regulate the design of television receivers and therefore lacks the authority to impose a broadcast flag requirement, goes beyond Congressional intentions to limit the Commission's authority over television design.
  • The Braodcast Flag regime impermissibly conflicts with Copyright law
  • The standards the FCC used to determine that the broadcast flag would solve a problem was arbitrary and capricious.

GWU 2L blogger LuminousVoid attended today's oral arguments and provides a report of the proceedings.

Declan McCullagh reports on the arguments for News.com Court questions FCC's broadcast flag rules: "Two of the three judges on the District of Columbia Circuit panel said the FCC never received permission from Congress to undertake such a sweeping regulation, which is intended to encourage the purchase of digital TV receivers that curb Internet distribution of over-the-air broadcasts of programming such as movies and sports."

The NY Times previewed the oral arguments and discussed one potential effect of the case: Federal Effort to Head Off TV Piracy Is Challenged: "If content creators refuse to provide digital programming because of piracy concerns, consumer demand for digital television will be low, which means a slower transition to all-digital broadcasts. And that, in turn, would mean no revenue for the government from spectrum auctions."

Ed Felten replies: "P2P infringement gives broadcasters a powerful incentive to offer higher-quality, higher-resolution content. High-res content makes legitimate broadcast service more attractive to viewers. P2P versions can't match these increases in resolution because doing so would make P2P files much bigger, clogging P2P systems with enormous files and making downloads much slower. If broadcasters have to "compete against free" their best hope is to actually compete, by improving their product -- especially when the competitor can't match the improvement." Broadcast Flag in Court.

HDNet's Mark Cuban urges the FCC to call the broadcasters' bluff and find out whether or not the broadcast licensees can broadcast HD content without a broadcast flag: "We dont need the broacast flag. It accomplishes absolutely nothing other than to set a precedent that the content industry can intimidate the FCC…."

The AP reports on Congressional efforts to speed up the transition to DTV: House Looks at Ways to Speed Digital TV

The December 2006 date isn't a hard deadline; according to law it could be pushed back until 85 percent of homes in a market can get digital TV. Nationally, only 12 percent of homes have digital sets, according to the Consumer Electronics Association.

Two leading House Energy and Commerce Committee members - Reps. Joe Barton, R-Texas, the chairman, and Fred Upton, R-Mich., said they might introduce legislation that would eliminate the 85 percent provision in order to speed the transition.

During the last Congress, Sen. McCain introduced a bill in the Senate to speed the transition to DTV.

FCC's Tyranny of the Minority?

Jeff Jarvis filed a Freedom of Information Act request to see the 159 complaints filed with the FCC concerning Fox's broadcast of Married by America which led the Commission to levy a $1.2 million fine against Fox for violating indecency standards. Jarvis received a reply from the Commission:

I just received the FCC's reply with a copy of all the complaints -- and a letter explaining that, well, there weren't 159 after all. William H. Davenport, chief of the FCC's Investigations and Hearings Divison, admits in his letter that because the complaints were sent to multiple individuals at the FCC, it turns out there actually were only 90 complaints. It gets better: The FCC confesses that they come from only 23 individuals.

These 23 complaints were not all original. In fact, only 3 different forms of letters were sent to the FCC.

Groups like the Parents Television Council make it incredibly easy to file complaints with the FCC about indecent language by using web forms where concerned moralists can complain to the Commission without needing to actually watch the offending broadcast. For example:

These forms make it especially easy to file complaints with the information necessary for the Commission to investigate a complaint. The complaint procedure is described in a 2001 Policy Statement: In the Matter of Industry Guidance On the
Commission's Case Law Interpreting 18 U.S.C.§ 1464 and Enforcement Policies Regarding Broadcast Indecency
(File No. EB-00-IH-0089, Apr. 6, 2001).

The Commission does not independently monitor broadcasts for indecent material. Its enforcement actions are based on documented complaints of indecent broadcasting received from the public. Given the sensitive nature of these cases and the critical role of context in an indecency determination, it is important that the Commission be afforded as full a record as possible to evaluate allegations of indecent programming. In order for a complaint to be considered, our practice is that it must generally include: (1) a full or partial tape or transcript or significant excerpts of the program;20 (2) the date and time of the broadcast; and (3) the call sign of the station involved. Any tapes or other documentation of the programming supplied by the complainant, of necessity, become part of the Commission's records and cannot be returned. Documented complaints should be directed to the FCC, Investigations and Hearings Division, Enforcement Bureau, 445 Twelfth Street, S.W., Washington, D.C. 20554.

If a complaint does not contain the supporting material described above, or if it indicates that a broadcast occurred during "safe harbor" hours or the material cited does not fall within the subject matter scope of our indecency definition, it is usually dismissed by a letter to the complainant advising of the deficiency. In many of these cases, the station may not be aware that a complaint has been filed.

If the complaint is valid, the Commission will then evaluate the content of the broadcast, make a decision about whether the content is indecent and levy a fine, if appropriate.

In its crackdown on indecency, the FCC complaint system rewards a small minority of vocal complainers and fails to take into account the opinions of those who approve of and enjoy television programming. The complaint procedure was intended to listen to those individuals who happened to be offended by some indecent programming actually experienced on broadcast. This complaint procedure did not contemplate activist morality patrols hiring staff members to watch potentially offensive programming and draft complaints.

Can the FCC create a better complaint procedure or decency standard? Should the Commission subject sensitive viewers to a tyranny of the majority? Even if broadcast programming is popular, should it still be required to meet some decency standard beyond mere market popularity? Are there any workable alternatives?

One alternative may be to simply create a stricter standard for indecency which broadcasters are less likely to run afoul of and will reduce the chill on speech. No matter what the standard is, some viewers will complain about content that borders on indecency and ask the Commission to act.

Another alternative is to create a threshold requirement where the Commission can only act when the number of complaints reaches a certain percentage of the viewing or listening audience of the program-- Howard Stern would have to disgust many more people than a less popular shock jock. The obvious drawback to this approach is that it can create a tyranny of the majority where a minority of viewers who are sensitive of broadcast standards will have no recourse with the FCC for content they find offensive.

VoIP slips free of state regulation

Last week, the FCC exempted Vonage and other VoIP services from state regulation, even though the states have a role in regulating traditional telephone service (POTS), because VoIP is not tied to any particular state or any physical infrastructure.

Memorandum Opinion and Order

Press Relase: FCC Finds that Vonage not subject to patchwork of state regulations governing telephone companies

Statements from Commissioners Powell, Abernathy, and Copps and Adelstein

Is anti-spyware legislation necessary?

| 1 Comment

Government Computer News: FTC: Technology, not legislation, needed to fight spyware

l Trade Commission commissioner Orson Swindle said that pending anti-spyware legislation is an election-year effort by Congress to appear to be taking meaningful action against a high-profile problem.

Swindle and Jim Harper, director of information policy studies at the Cato Institute, warned during a Capitol Hill briefing today that premature laws could do more harm than good.

Talking 'Heads

David Weinberger blogged the Bellhead-Nethead Conference at Cardozo earlier this week:

  • Bob Pepper, Chief of Poilicy Development at the FCC
  • Bruce Mehlman, Internet Innovation Alliance
  • Justification for Regulation, with Rebecca Arbogast, LeggMason; Daniel Benoliel, UC Berkeley, Law; Harold Feld, Media Access Project; James Gattuso, Heritage Foundation; Russell Hanser, FCC (speaking for himself and off the record [Blog off]); David Isenberg, isen.com; Eli Noam, Columbia U. economics; Christopher Savage, Cole, Raywid & Braverman
  • Ancillary Jurisdiction with Robert Blau, BellSouth; Jeffrey Carlisle, chief of Wireline Competition Bureau of FCC; Bill Hunt, Level 3; James Lewis, MCI; Randolph May, Progress & Freedom Foundation; Gigi Sohn, Public Knowledge; James Speta, Northwestern U., Law
  • Journalist Dan Gillmor
  • Universal service with Robert Frieden, Penn State, College of Communications; Jonathan Askin, Pulver.com; Jonathan Weinberg, Wayne State, Law; Kevin Werbach, Wharton School; Brad Ramsay, Nat'l Assoc. of Regulatory Utilities Comissioners; Matthew Brill, FCC
  • John Rogovin, FCC, discusses CALEA
  • Stewart Baker on CALEA
  • CALEA Panel with John Morris, Center for Democacy and Technology; Mike Godwin, Public Knowledge; Geraldine Matise, FCC; Christopher Murray, Vonage; John Morris; Douglas McCollum, Fiducianet; Timothy Wu, Columbia Law School; David Young, Verizon;

Conference reflections from organizer Susan Crawford, Assistant Professor of Law at Cardozo: "The big picture is the real news right now.  Big government wants to be in charge of the internet, and we have the opportunity to resist on a national level."

Related: News.com interview with FCC Policy Development Chief Robert Pepper: The technologist who has Michael Powell's ear

After receiving more than 542,000 complaints, the FCC assessed a $550,000 fine, the statutory maximum, against CBS for broadcasting the Super Bowl halftime show's "wardrobe malfunction." The fine was assessed on 20 CBS-owned local stations and not the other 200 independently-owned affiliates that broadcast the halftime show.

Notice of Apparent Liability for Forfeiture

At the outset, review of the Broadcast Videotape leaves no doubt that the Jackson/Timberlake segment is both explicit and graphic. The joint performance by Ms. Jackson and Mr. Timberlake culminated in Mr. Timberlake pulling off part of Ms. Jackson’s bustier and exposing her bare breast. CBS admits that the CBS Network Stations broadcast this material, including the image of Ms. Jackson’s bared breast, but argues that the exposure of her breast was unexpected and the duration of the exposure was for only 19/32 of a second. Although the exposure was brief, it was clearly graphic.

Powell: "As countless families gathered around the television to watch one of our Nation’s most celebrated events, they were rudely greeted with a halftime show stunt more fitting of a burlesque show."

Copps: "I am concerned by the precedent we establish in failing to assess a penalty against non-Viacom-owned affiliates that aired the Super Bowl."

Adelstein: "I find today’s remedy totally inadequate. After all the bold talk, it’s a slap on the wrist that can be paid with just 71⁄2 seconds of Super Bowl ad time. The $550,000 fine measures up to only about a dollar per complaint for the more than 542,000 complaints that flooded into the FCC after the broadcast. ... I fear that today we’re responding to a “wardrobe malfunction” with a regulatory malfunction."

VoIP, eh?

In the Toronto Star, Michael Geist contemplates the potential of VoIP regulation in Canada: No need for Dickensian approach to voice-via-Web

While most industry observers seem convinced that VoIP is the wave of the future, the regulatory framework surrounding the emerging technology remains uncertain. This week the Canadian Radio-television and Telecommunications Commission (CRTC) will hold three days of hearings on VoIP regulation

Washington Post: High Court Petitioned on Cable Net Access Rule

In the past year, the U.S. Court of Appeals for the 9th Circuit in San Francisco has ruled twice that the Federal Communications Commission erred when it allowed cable companies to bar rivals from their networks. However, those decisions have been put on hold while the Bush administration considered its options. If the Supreme Court rejects the Justice Department's appeal, cable companies would be required to share their lines with rivals, potentially creating more choice for consumers and a vast new market for independent Internet service providers.