Perhaps it’s an attempt to end his tenure on a high note by doing something very positive for the nation—auctioning off spectrum to a wireless provider that can serve up wireless broadband to 95 percent of the country.

In a further twist, Martin didn’t call the Wall Street Journal or another paper of record to announce the plan. He called tech website Ars Technica to say he had drafted the new proposal. From the article:

"I’m saying if this is a problem for people, let’s take it away," Martin said. "A lot of public interest advocates have said they would support this, but we’re concerned about the filter. Well, now there’s an item in front of the Commissioners and it no longer has the filter. And I’ve already voted for it without the filter now. So it’s already got one vote."

Martin admitted he had yet to garner any further Commission votes. The move is surprising given Martin’s history of penalizing broadcast networks for even fleeting, accidental language and images.

Supporters of a public national broadband network had mixed emotions about the original proposal because of First Amendment concerns. The idea of the government deciding what content could and could flow across a two-way communications network didn’t sit well with many. Further, by contracting out the business of censorship, such a proposal would automatically endanger the cause of Net Neutrality by setting a precedent whereby an ISP could block content deemed undesirable.

It’s hard to tell if the proposal will pass before a new Commission takes office, and, given the chairman’s sudden reversal in the last lame duck days of his tenure, it’s hard to trust without seeing the rushed proposal itself. Hopefully, like other maneuvers in the past, this isn’t a mask for political gamesmanship. Three lame duck Republican Commissioners could push through a potentially faulty plan on their way out the door.
 

That Republicans took “a thumpin’” in 2006 probably had nothing to do with the timing of said investigation—er, right? The report is the result of the man-hours it took to review “several hundred thousand” paper and electronic documents, 95 boxes of paper documents, and 73 interviews of current and former FCC employees, telecom industry insiders, and dozens of allegations delivered by hand, fax, phone, and mail.

The conclusion is a novel-length report entitled Deception and Distrust: The Federal Communications Commission Under Chairman Kevin J. Martin. It is a detailed indictment of the puritanical, telco-shill FOB* appointed to oversee America’s airwaves, telecommunications policy, the Internet, cable, radio, and wireless spectrum, arguably the most important new infrastructure in the 21st Century.

Because of the “climate of fear” pervading at the FCC under Martin, the Committee conducted much of its investigation in private and promised anonymity to plaintiffs fearing retaliation. The report, say the authors of it, is presented in lieu of a public hearing.

To follow is a summary of the Committee’s report:

1.    Martin manipulated, withheld, or suppressed data, reports, and information intended for all commissioners in an attempt to regulate cable television companies. Martin reversed the conclusion of the Second A La Carte Report, compiled by a predecessor, and further “damaged the credibility of the Commission” and “undermined the integrity of the staff” by manipulating the report “with the purpose of affecting congressional decision-making.”

2.    Important Commission matters were not handled in an open and transparent manner, and as such some parties and issues were not treated fairly.

3.    Martin ignored evidence consumers were being overcharged because of poor oversight of the Telecommunications Relay Service Fund, and that such lack of oversight resulted in carriers fleecing the public for as much as $100 million per year.

4.    Martin’s “heavy-handed, opaque, and non-collegial management style has created distrust, suspicion, and turmoil among the five current Commissioners.” Chairman Martin disallowed direct and unfettered access to the expert advice of Commission staff, hindering the Commission’s ability to carry out their duties.

5.    As soon as he took office, Martin undertook a major and “highly unusual” reshuffling of FCC staff, where every senior position at the agency changed hands, non-management line staffers were “inexplicably” reassigned, and senior employees with extensive experience and expertise were reassigned to junior-level positions, which the Committee called “a senseless waste of resources.”  

Like many other Administration appointees, Martin typifies a government run by cognitive dissonance. When the evidence/data/public doesn’t support your politicized opinion/belief system, just ignore it and go ahead anyway. The current Chairman of the FCC joins the ranks of others—at FEMA, the DOJ, the Fed, the Treasury, Intelligence, DHS, EPA, on and on—charged with applying the Lame Duck’s unique, reverse Midas Touch.  

*Friend of Bush: Martin served on President Bush’s legal team during the 2000 campaign.
 

Well, Martin needed some decent legacy to point to during his tenure as the nation’s chief communicator guy, right? Who gets credit for free national Internet will be a trivia question for academic teams, Trivial Pursuit, and high school multiple choice exams for generations to come, like which FCC guy smoothed out radio and TV, which was of course. . .yeah, I don’t know either. Bet ya he didn’t have quite the bumbling go at it Martin did though.

Anyway, back to this free Internet business. Martin’s proposal will presumably get the green light now that it’s been shown that use of specific spectrum won’t interfere with T-Mobile’s or Deutsche’s 3G networks. Nobody was using the airwaves surrounding those networks, T-Mobile and Deutsche just preferred the cushion—oh, and that nobody was getting free Internet.

If all goes well, the government will auction off the spectrum to a buyer willing to offer an ad-supported, free network—filtered for content, which we’ll get to in a minute. M2Z made a similar proposal to Martin a couple of years ago, only to be rejected after pressing the FCC to finally make a decision on it. M2Z was looking for a hand-out of spectrum in exchange for revenue-sharing from ad sales and higher-speed premium services.

Besides the “give us some spectrum, sugar” flaw in M2Z’s proposal, Martin couldn’t quite put his face on it in the waning months of his appointment and have his legacy if he signed off. Alright, so that last part’s pure conjecture, but a continued political career for Martin is not. Won’t it be nice he’ll be able to point to free Internet for everybody when he runs for office?

Free spectrum and potential interference aside as possible deal breakers—after all, those are just pure technicalities—Martin and proponents (or, if it helps in the characterization, those who smell money and lots of it) barely flinched at the requirement that the free Internet be filtered for content. They also didn’t put much stock in fundamental differences in one-way and two-way communication systems (TV is one-way, Internet is two-way). As is all too often the norm, the protect-the-children, dare-you-to-oppose approach wins over the basic fact that the government, or someone leasing airwaves from the government, will be deciding what Internet content is appropriate for you to see.

Accidental Super Bowl Pop Star nipples?

Fahgettaboutit.

Or maybe specific bloggers are declared obscene, just based on the filthy words they use. Martin foresees no problem with this.

What will be really interesting is how, after Martin slides this through, he and the FCC respond to Google and other major Internet players’ advocacy for use of white spaces—those bits of static cushion between TV signals that come available next year. Google was looking to provide a little free Internet of its own with those, probably uncensored, which will suddenly run in direct conflict with the government’s desires.   
 

What is surprising is that the editorial in question, which is not specifically authored and thus becomes the official stance of the WSJ as an entity, not only oversimplifies the topic at hand (surely WSJ readers are at a sufficient level to understand complex topics right?), but also sets up the WSJ as a mimic of Comcast apologists and telecom shills.

It’s not surprising, and not interesting, that a paper like the WSJ, especially since the News Corp. acquisition, would rest on its conservative, let-the-system-fix-itself, anti-regulation and probably wing-tipped heels. What is surprising and interesting is that a journalistic enterprise would allow its editorial staff to seemingly copy and paste from lobbyist talking point handouts.

Worse, the arguments made are laughable in places, myopic in others, and some are based on premises patently untrue. A simple handing off of the editorial to an opposing viewpoint pre-publishing would have helped at least strengthen the intended argument. As is, it makes it seem the editorial writer(s) never had the intention of building a fair representation.

Note I didn’t say "unbiased" representation. There’s no such thing even in straight journalism, much less editorials. This particular editorial wouldn’t matter as much if by a single author. It’d be just another opinionated jerk (like me!) spouting off in text. But this appears to be the official word from the WSJ, word that never saw the wood grain of a counter-arguer’s desk.

Let’s dissect some of it:

"In his last months as Master of the Media Universe, [Martin] seems poised to expand government regulation of the Internet." Yes, we’ve established Martin stinks. A poor conservative in general, he has tried to exert his own authority over all aspects of media for whatever personal or political reasons, from excessive action against so-called "fleeting expletives" to content regulation even on cable television, from forced a la carte cable programming to issues with media consolidation, from extreme telecom favoritism to proposing a Martin-approved free broadband network.

But as far as the situation with Comcast is concerned, which is the central issue upon which the editorial pivots, regulation of "the Internet" has nothing to do with it. It’s regulation of Internet service providers so they can’t manipulate or control what their paying customers have access to. The Internet itself isn’t to be touched.

This sentence was choice: "The FCC is by all accounts planning this week to uphold a complaint against Comcast, the cable company accused of throttling attempts to trade movies and other high-bandwidth files on its network that slow down Internet service for everyone else."

Notice it starts out true and ends debatably. Nice technique except that network management is a trumped up excuse to cover what the real issue is: Comcast denied interfering with customers’ access to specific, legal Internet services, but were proven to be doing so by independent, investigative testing. The interference among US cable providers was so extensive that only Chinese providers matched them in terms of blocked content access—cable providers in Europe, South America, and other places had no such restrictions. Network management doesn’t change the fact that Comcast selectively blocked access to content. Network neutrality, which the WSJ put in quotes as though not a serious term, is already in place when it comes to devices attaching to telephone systems, and is really about not allowing ISPs to block access to any Internet content or harmless applications. It is not, as opponents have misinformed, about disallowing ISPs from offering different speeds at different prices to consumers as they do now.

The editorial cites Comcast reached an agreement with BitTorrent, an act constituting "a private resolution of a technical dispute." This again oversimplifies things toward building support for a specific outcome. BitTorrent is just one peer-to-peer company, making it not only the preferred partner of Comcast, but one of the only p2p providers approved by Comcast. Another "network neutrality" alarm, this arrangement paves the way for these types of arrangements to continue so that AT&T’s dreams of an Internet where Yahoo can pay to have its site load faster than Google’s—or even instead of Google’s—can become a reality. Any website without the cash or will to pay ISP extortionists would be effectively offline. Schemes like these aren’t theoretical. They are AT&T’s stated intent, and Comcast’s BitTorrent arrangement is a real world example of it.

The WSJ criticizes Martin for stepping across the aisle to work with the two Democrat commissioners to "force Comcast to change its network management model to his liking." First, he’s never been shy about opposing Democrats, so why he’s suddenly on their side is a mystery. (Though it may have something to do with his apparent hatred of cable and willingness to stick it to them whenever he can while letting Verizon and AT&T slide on the other side in regards to their own censorship debacles). Second, it’s the net neutrality movement’s liking, which just happens to fall in line Martin’s ever-changing goals this time. Martin’s ineptitude was also a convenient vehicle for the WSJ to take a stab at some other ideological opponents, which is really a bit shady.

We’ll close with this paragraph, which, after reading several times becomes more and more blatant and absurd. "Mr. Martin is forcing a solution in search of a problem. But the bigger concern is that the chairman is taking a huge step toward putting in place a regulatory regime that would give the FCC, rather than Internet service providers, unprecedented control over how consumers use the Web. Mr. Martin is also greasing the skids for a potential Barack Obama Administration to take an Internet industrial policy who knows where."

The "solution in search of a problem" rhetoric has been used to death, mostly by telecom and cable lobbyists, and sometimes by the legislators whose ears are quite open due to heavy campaign financing. There is nothing currently—aside from Martin’s personal content censorship ambitions, which have been repeatedly struck down by the courts—that would give the FCC control over how consumers use the Web.

And is there anything more ridiculous than that last line about Obama? Make no mistake, for all of Martin’s many faults, he’s a Bush-man ideologue through and through, achieving his lofty position after a show of fancy lawyering for Bush’s 2000 campaign. And Obama has clearly outlined what he plans to do in terms of Internet industrial policy, so we know where that would go—maybe the WSJ should read that policy statement instead of assuming there isn’t one. What’s "unprecedented" is the Wall Street Journal shilling for Comcast and the telcos by coupling a failed FCC chairman with the Chief Anti-Conservative just to get the base readership riled up enough to push through an underlying agenda.

There are, actually, decent, agenda-free arguments against Net Neutrality, and against regulation. The WSJ presented none of them and instead allowed a poorly argued could-have-been-written by Comcast editorial to appear in their publication. Of course, News Corp. has definite interests in not only being buddies with Comcast but also in defeating network neutrality—think in terms of movies and television content and don’t forget their satellite properties—and has never been shy about being anti-regulation at whatever cost to the consumer. It’s surprising, though, how quickly those agendas have seeped into the journalistic standards of the Wall Street Journal.    

Kevin Martin, FCC Chairman
(Photo Credit: Wikipedia)

Maybe it’s wise advice when dealing with other Administration-appointed turds clogging up the works as well. FEMA’s Michael Brown, after doing nobody any favors during the Katrina disaster, finally did us all a solid by resigning. Up next, if we’re lucky, is Fed Chairman Ben Bernanke (Mr. The-Economy-Is-Fine), followed by Martin.

Don’t just take my word for it. It’s Wear-All-Black Day at the FCC, the third anniversary of Martin taking over and creating a totalitarian "super-politicized" environment. Maybe he’s not completely to blame; we all know what happens to Administration appointees if they don’t fall in line.

So if Martin’s not at liberty to do the opposite of what he thinks is best, then maybe others will be able to. Martin’s not a fan of Net Neutrality ideas, unless it involves (symbolically) grilling Comcast about it. Verizon and AT&T have yet to take their places in the hot seat, which is pretty par for the course.

But then again, Comcast isn’t projected as winning the bid for all or nearly all of the C-Block spectrum. Comcast also wasn’t doing its "patriotic duty" by bending over for the DOJ like the telecoms. The reward for the telecoms is they don’t get as much flack from the FCC.

Or so the theory goes.

Comcast is suing the FCC, by the way, over an imposed cap on media ownership, which won’t apply to other media companies, for whom Martin wants to relax the ownership rules. Comcast is more than happy to mention how quickly and lovingly Martin’s FCC approved the largest merger in acquisition history regardless of antitrust concerns, the AT&T/BellSouth merger.

Their lawsuit will have to get in line, though, among two-dozen other lawsuits filed against the FCC regarding that same issue. It will be in line also behind a Supreme Court case, scheduled for this fall, regarding Martin’s and the Administration’s hard-line stance against "fleeting expletives" occurring on live television, often beyond the control of the broadcasters. Martin would extend the government-regulation of speech to cable and satellite subscription networks as well.

Martin would have a more difficult time regulating Internet speech, especially in light of his past non-regulation arguments and all those pesky freedom-loving Americans out there. He won’t have to regulate, though, if he gives a free pass to AT&T and Verizon, who seem lately more than happy to regulate speech for him, and who thus far haven’t come under the scrutiny Comcast has suffered.

That’s not a defense of Comcast’s blocking of file-sharing traffic, just to say that what’s good for one should be good for the other.

Perhaps all these abuses will get their proper light with the threatened Congressional investigation into allegations that Martin has abused his power, either in the name of politics, or the name of double-standard stupidity.

And hopefully, that threatened investigation will result in what needs to be done before a new President takes the stage.      
 

FCC Gets Monkey’s Paw From Telco Front Group

It appears as good news. An anti-Net-Neutrality, pro-telecom organization calls for Net Neutrality enforcement. And if the telecoms demand something of FCC Chairman Kevin Martin, you know it will be done.

Must be all the birthday singing they do for him.

After Comcast was busted blocking BitTorrent downloads, HOTI sent a letter to Martin asking the FCC to launch a full investigation to see if the four principles of Net Neutrality had been violated.

Just for review, those four principles are the same ones AT&T had to accept in order for their merger with Bell South to be approved, the same ones Martin himself said had no teeth. They are as follows:

1.    Consumers are entitled to access the lawful Internet content of their choice;
2.    Consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement;
3.    Consumers are entitled to connect their choice of legal devices that do not harm the network; and
4.    Consumers are entitled to competition among network providers, application and service providers, and content             providers

The authors of the letter, Mike McCurry and Christopher Wolf, disagree with Martin’s initial assertion that the principles are unenforceable and believe the FCC "has clear authority" to do so.

What’s interesting about the letter is not just what is between the lines, but also how it plays on Martin’s philosophical inconsistencies. They use his own words to the Senate Commerce Committee against him to drive home just how extensive the FCC’s authority over Internet service providers is (or vice versa).

Another inconsistency to leverage: Martin’s reluctance to regulate or interfere with telecom giants, but full willingness to get his hands dirtied with cable providers. Before the keys were cold again on HOTI’s keyboard, Martin was dead set on stiffening regulations on the cable industry – most likely driven by his conscience, a la carte programming that provides true family friendly programming the trump to his deregulation mindset.

But what is most elegant about the HOTI letter is that it subtly mirrors a couple of very pro-telecom objectives: It puts additional heat on a very large competitor in the Internet and television space (the telecoms are beginning to offer TV); and it appears pro-Net Neutrality in an increasingly pro-Net Neutrality time without actually being so.

Smell that? It’s opportunism.

An FCC that appears to enforce the principles helps build a case that there is no legislation needed. In a perfect free market world, the FCC can hold its own, enforcing its own principles without Congress, even principles its own chairman said were unenforceable.

Just to save you following a link, let’s relive Martin’s words here:

Importantly, however, while the Democrat Commissioners may have extracted concessions from AT&T, they in no way bind future Commission action. Specifically, a minority of Commissioners cannot alter Commission precedent or bind future Commission decisions, policies, actions, or rules. 

The "concessions" are the same principles as listed above. Though a minority of Commissioners cannot bind Commission actions, perhaps AT&T-backed grass roots groups can. They’ve been pretty good at pulling Martin’s strings in the past.

If they can hurt a competitor while ensuring Net Neutrality remains unenforceable (while making others think that it is), then that fits squarely into a win-win corporate strategy.

" AT&T’s front group calling out Comcast is like Exxon calling out Texaco — they’re all bad faith actors with business models built on attacking competition in the marketplace and hurting consumers," says MoveOn.org’s Adam Green.

But what is equally disturbing, is the extent to which AT&T is involved in the workings of our federal government. Recently it was revealed that the secret room at AT&T HQ reserved for NSA personnel was used not only to snoop on phone calls, but all Internet traffic coming across the backbone as well.

If worded right, Net Neutrality legislation could put a stop to that, too. You know, if certain legislators don’t grant immunity to them in the meantime.

The dark conclusion, as usual lately: The government, including the FCC, the DOJ, the Administration, and a good portion of Congress don’t work for the people anymore. They work for shareholders and contributors.

And Kevin Martin? He’s made it very clear over the years whom he serves.   

"What Chairman Martin is proposing isn’t true open access, and it won’t create the broadband competition we need," said S. Derek Turner, research director at Free Press.

But, but…he said!

Frank Rose at Wired.com says that Martin’s new rules "include several key provisions that make it unlikely an open network would ever actually be built. For example, they are said to allow the winner to offer retail service only. That might force the auction winner to open its network to unapproved devices, but it wouldn’t actually force competition. So we’d end up with something like wireline broadband today: Users could hook up any device they wanted to, but they’d still be limited to only a couple of service providers."

So what happened?

"Aware of how closely watched this proceeding has become, Martin has opened his push for rules with a controlled PR offensive," writes Howard Feld. "Most notably, he has sought to create confusion for the public interest community and Silicon Valley folks by changing the definition of the word ‘open access.’

"It helps that Martin has been more successful than any other Chairman I can recall in stopping leaks at the FCC — usually by transferring the offending parties to the FCC equivalent of outer Siberia as a warning to others. This has given Martin an unparalleled opportunity to control the information flow and the public debate through strategic press leaks and interviews."

Oh, that’s just dirty.

Luckily, there’s still good guys working on this. Free Press, the organization behind SaveTheInternet.com, launched a new initiative called FreetheiPhone.org, which aims to ensure competition and freedom in the wireless space.

"This issue goes well beyond the iPhone. It’s about a dysfunctional wireless system that stifles innovation and competition across the country," said Timothy Karr, Free Press campaign director. "We need real open access, which opens networks for innovation and wholesale markets for competition. Until we have this, the iPhone — and other innovative gadgets like it — will never reach full potential."

Free Press’s Ben Scott explains more about this at YouTube.

This latest skirmish between SaveTheInternet and the telecom and cable industries is part of a larger battle for Network Neutrality, a movement to block phone and cable companies from manipulating Internet – wired or wireless – activity the way they do with telephone and cable lines.

The 700 MHz spectrum is considered ideal for wireless broadband access and is capable of penetrating walls, much like television and radio signals. Divided appropriately, the spectrum could open up broadband competition by offering another channel by which Internet access could be provided.

Kerry began his letter by reminding the FCC just where the US stands in the world in broadband penetration.

"The US is lagging behind much of the world in broadband penetration. Nearly 60% of the country does not subscribe to broadband service – in large measure because it is either unavailable or unaffordable."

Kerry and others believe that if chunks of spectrum are reserved for non-incumbent interests, and not for the highest bidder (the assumption here is that few are able or willing to outbid AT&T and the like), then doors will be open for broader competition in Internet access and reduce the price of connecting.

In the letter, Kerry complains that alternatives to DSL and cable modem technologies, which are the only options available in 96% of the US market, have not materialized as free-market advocates have promised over the past decade.

"It has not yet materialized, and today Americans pay as much as ten times more than broadband consumers in Asia and Europe. Worse still, competition has been insufficient to drive the innovation that brings faster speeds, next generation applications, and a richer, diverse and multifaceted Internet."

Though he admits expanding wireless broadband "may not be a silver bullet," Kerry believes it is a step in the right direction. He also mentions that part of the 700 MHz spectrum could be used to build a national emergency frequency.

But one of the biggest fears is that those in the telecommunications industry will buy up the spectrum with the intention of preventing others from buying it.

"This spectrum should not sit dormant in the hands of winning bidders," said Kerry. "We cannot allow this spectrum to be hoarded by large companies who don’t intend to use it."

Well, Markey’s actually drafting a bill, called the Broadband Census of America Act, that would define "broadband" as speeds exceeding 2Mbps – quite a bit higher than the 768Kbps available via most DSL lines.

The bill also requires the FCC to reform its broadband reporting. Under current measurements, based on ZIP codes, artificially inflates the reach of American broadband access.

As he gave Martin a righteous noogie, Markey reminded him that broadband access in the US is dismally sub-par compared to the rest of the world, especially compared to Japan, where 50Mbps fiber connections are available for about $30 per month.

And that stinks, especially since the telecommunications and cable industries were given $200 billion to build out that broadband infrastructure over 10 years ago. The current speeds they’re calling broadband were defined nine years ago, according to Free Press’ Ben Scott.

"We have always been limited by the FCC’s inadequate and flawed data," Scott said, as quoted by ArsTechnica.

Some other things the FCC sucks at:

Ensuring a neutral Net.

Standing up to the telecoms.

Understanding that sometimes people say bad words (and it’s a violation of free speech to try and make them stop).

Standing up to the Parents Television Council.

Not allowing cable companies and telecoms to gouge their customers (something they’re sure to continue without Net Neutrality assurances).

Supporting a la carte television programming so the consumer doesn’t have to put up with 200 channels he doesn’t want.